Cotten, Matthew C

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1 'Ol OZ)OB/M) E;ZLI-Xzzf) 2 O§; February 25 , 2015 Court Of Criminal Appeals RECEWED !N Clerk, ` Abel Acost:é_"':?» COURT OF CR|M'NAL AppEALS P.o. Bo:"'<:12308,. capital stati<'{>_n _ Austin, ,Texas 78711 MAR 03 2015 RE: Ex parte Matthew` Cotten Abes Acosfa, Cl€?k Writ NDS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-432;-1-373-1227020-A; C-432-OlO374-1227021-A; C-432-OlO375-1227111-A. Dear Clerk, Enclosed you will find "Applicant's Traverse_To the '1‘ria1 Court's..Findings` of FAct and Conclusion of Law" in the above stjled and numbered causes. Please file- stamp said instrument and bring it to the attention of the court in your usual fashion. Thank you for your time and cooperation. Respectfully Sulm\itted: k , Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 CC: Steven W. Conder Assistant Distr.ict Attorney 401 W. Belknap Fort Worth, Texas v7619(5-0201 writ N<». c--432_\0`10371-.'1222,336-A Ex Parte In The 432nd Judicial District Court mm€mm¢°b Matthew Cotten Tarrant County, Texas Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of law Tb The Honorable Court Of Criminal Appeals: Now'Ccmes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support thereof will show this court the following: .Grounds For Relief On January 4, 2015, Applicant filed this foregoing writ of habeas corpus alleging five constitutional violations during the course of his trial court proceeding. In ground nuber one, Applicant contends that his sentence of thirty years in Cause No.1222336D;, is illegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirtyiyears in Cause No. 1222336D , is Void because the State presented "No Evidence" to support the enhancement paragraphs alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he vwas denied due process and due course of law when the State presented "no evidence" to support the enhancement allegatiOnS aS required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement against§:himself. Argument And Authorities Ground Number One. In ground number one, Applicant argued that his sentence of thirty years in Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition For.Writ Of.Habeas\Corpus In addressing ground number one, the district attorney argued that relief should be denied simply because ¥1Pthe indictment alleged two prior felony convictions: a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See: State's Reply To Petition For writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant?s constitutional questions of law and fact regarding the applicant's claixn that the record affirnstively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and R.R. Vol#Z, pp. 109 through pp. 114). :Applicant maintains that because the "Judgment of Conviction and the Reporter's v Record" at trial shows uhat applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#Z,pp.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding§ Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1). Habeas Court Memorandum/ Findings On February 2, 2015,-the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any 4 decussio --"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp~l)~ Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation to ground number one based upon the fact that the trial court's findings is contradicted bY, the lrecord of evidence-at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of Conviction By Court and§¢R.R. Vol#2,pp.109 through pp.114). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewise, a review§gfthe punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence§quthirty years void. Moreover, the record shows that the district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless,' without any evidence beingpresented at trial to support the enhancement aiiegation, the trial court illegally concluded: !Based upon the foregoing evidence and the information that's been provided to _ , . ' : ~: ' ' - . > y .'<_,..'i_ ' ~__ ' - z ' j¢ ': " t_ . __4_ ga r z h.¥ } , ; - ".' , - _ y z ',}¢ - .. ,, 4 ` \l ` ' l ‘ .> » 1 y . . ' f - ', z * , .; ,\. the court and your admlsslon, the court hereby finds you guilty of all five cau§ numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. Cotten. The respective enhancements are also found _ to be true. In the cause numbers, with the exception of 1227111, the Court hereby l sentences you to 30 years in the Institutional Division of the Texas Department~ ~of Criminal Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years ' in the Institutional Division of the Texas Department of Criminal Justice." (R. R. Vol#B,pp. 86, line 18 through pp. 87, line1-7). ' é Section 12;42(d); Texas Penal Code governs the punishment for habitual felony4 offenders, and requires the State to present evidence of two prior felony offenses ' inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508, 511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistantly held _that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment can not be legally 'enhanced. Cole V. State, 611 S.W.Zd 79, 80(Tex. Crim. App. 1981),- raizei_l v. sta;e,. 119 s.w.3d at aoe(TeX. App. 2006); Jordan v. state, 256 - s.w.3d 290, 293(»Tex.crim. App. 2008). `?' Here, in applicant's case now before the Court of Criminal Appeals the record shows that at the§¢h,i hearing the State only asked the court to take judicial notice of the presentence investigation report which did not contain§'any evidence of any prior felony convictions. (R.R.~, Vol#3}pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two'and Three In ground number two, applicant argued that his sentence of thirty years is Void because the State presented "no evidence to support the enhancement allegations required by Section 12. 42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. !7':‘" In ground number three, Applicant argues that he was denied dueq?process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his thirty year sentence void. State's Reply To Petition For writ Of Haheas Corpus ln addressing grounds two and three, the district attorney argued that relief should be denied because: ` "The record herein is not totally devoid of evidentiary support for enhancing the applicant's sentencing range;" (See: Statels Reply,pp_§), More specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The_applicant waived his right to themappéaran&§,confrontation and cross¥examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding applicant's claim that the State presented "no evidence" to support..the essential elements of the enhancement paragraph as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State’s Reply, pp.5¥6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts Have long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the iudge or the iury, in no event shall a person charged with a criminalfsoffense be convicted upon his plea without sufficient‘evidence to support the same. Artitbe 1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W;Zd 424, 426 (Tex. Crim. App. 1996); Messer V. State, 729 S.W.Zd 694,698(Tex.Crim.App.1986); Stokes V. Procunier, 744 F.2d at 483; Thompson V. louisville, 362 U.S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves-: tigation report is inadmissible as proof of a final ¢onviction where the P.S.I. report did not contain certified copies of prior judgment of ¢convictions against the appli- cant. Gar¢ia V. State, 930 S§.W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for a stipulation to be considered as evidence where the plea is before the court, the state must introduce a copy of the judgment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.Zd at 698; Stone, 919 S;W.Zd at 426; Ex parte Brown, 757 S.W.Zd at 368; m parte Rich, 194 s.w.zd at 513. Here, in applicant's case noe)before the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a judicial confession admitting to all of the-allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- l examination of witnesses, and consented to oral and written stipulations of evidence. (See§ State's Reply, pp.5). In conclusion, the record clearly shows that the State denied applicant due process aid due couise of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas.Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment Of the United States Constitution. Consequently, no rational trier of fact could have found the essential elements of the enhance- ment allegations true beyond a reasonable doubt. Habeas Court Memorandum / Findings In addressing ground number two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, pp. 1). Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's judicial confession (standing alone) provides some _evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his judicial confession standing alone is not enough to support'proof of a final ‘¢pnviction, where the P.S.I. report did not contain certified copies of prior judgment of convictions against him. See: Garcia V. State, 930 S.W.Zd 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.Zd at 368; Ex parte Rich, 194 S.W.3d at 513.', The Texas Court of Criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the jury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of Criminal Procedure; Stbne V. State, 919 S.W.Zd 424. 426(Tex. Crim. App. 1996); Messer V. State, 729 S.W.Zd 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final conviction, where the P.S.I. report did not contain certified copies of prior judgments of convictions against the applicant. Garcia, 930 S.W.Zd at 623. In summary, the State must introduce a copy of each judgment of conviction, in each case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell V. State, 228 S.w.3d 343 at 346; Ex parte Rich, 194 S.w.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#2,pp.114,‘line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wene "no evidence" of prior convictions contained within the P.S.I. report. §Thus, based' upon the record{ no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court .must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five In ground number four and five, Appli¢ant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda Warning" to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure. In ground number five, Applicant argued that Detective Anderson Violated his due process right under the fifth and fourteenth amendment of the United States Constitu- tion when he threatend£ physical harm to him and his property in order to coerce him to give a self-incriminating statement against himself. State's Reply To Petition For Writ of Habeas Corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: "The applicant's Miranda and due process grounds for relief are not cognizable _because these same complaints were rejected on direct appeal." (See: State's Reply, pp.6). However, the district attorney has failed to address applicant's constitutional questions of law and fact regarding additional evidence that is being presentéqngor the first time in this foregoing habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claims raised and rejected on direct appeal rare not cognizable on habeas corpus. Ex parte Schuessler, 846 S.W.Zd at 852(TEx. Crim. App.1992); EX parte Goodman, 816 S.W.Zd 383, 385(Tex. Crim, App. 1991); Ex parte Russell, 738 S.W.Zd 644, 646(Tex. Crim.App. 1986). Habeas Court Memorandum / Findings In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not §tpgnizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. Applicant's Traverse Tb The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trialx-court's recommendation that ground four and five be denied based upon the trial court's finding that: v "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims-now before the court are fundamental constitutional claims that are based upon new theories that were not.presented on direct appeal. Ex parte Good- man, 816 SSWZZd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.Zd 644(Tex. Crim. App.1986); Ex parte Schuessler, 846 S.W.Zd at 852(Tex. Crim. App. 1992). The law is clear, although habeas corpus is traditionally f,unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schusster, 846 S.W.Zd at 852 (Tex Crim. App. 1992)(granting re1ief due to lack of iurisdiction); Ex parte Russell, 738 8. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void prior conviction); Ex parte Bravo, 702 S.W.Zd 189(Tex Crim.App. 1982)(granting relief do to the improper excusal of a veniremamber): EX parte Clark) 597 S.W.Zd 760(Tex. lCrim.|A.pp.1979)(granting relief due to the trial.;courtls failure to apply the law to the facts of the case). l Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial @court~erred in failing to suppress his first statement because it'S procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his Miranda Right guaranteed to him bi the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning"-to him as required by Article 38{22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of Iaw, pp.14). After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number 'one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-¥ must be overruled and the cause remanded back to the trial court for a new trial. Likewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and -voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amandment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incriminating statement against himself. (See: Applicant's Memorandum of law, pp.17). In summary, after comparing applicant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims are not the same because applicant is now presenting a constitutional issue rofyffundamental error based upon a theory not alleged on direct#appeal. Consefuently, the trial court's finding that --"applicant's Miranda and due process grounds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one,.two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves The Court,v Respectfully Submitted: Matthew Cotten No. 1826716 vcoffiel¢l Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 10 Certificate 0f Service » I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy of this foregoing instrument has been served upon Steven `W. Conder, Assistant District Attorney, 401 W. Belknap, Fort Worth, 'Texas 76196-0201. Executed on this 25th day of February, 2015. siqn= %M M\/ Matthew Cotten No. 1826716 Applicant, Pro se`:j;_.~_,.l_ié? 11 WIit Bkv C-432-010372-1227019-A Ex Parte , In The' 432nd Judicia1 District Court Tarrant County, Texas mm¢mm¢m Matthew Cotten Applicant's Traverse Tb The Trial Court's Findings Of Facts And Conclusion Of law Tb The Honorable Court Of Criminal Appeals: Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus; And in support-thereof will show this court the following: Grounds For Relief 1smir;;On:January:A;;ZO15;;Applicant~filedwthis¢foregoihgswwit~of#habeas¢cofpus¥#m441w#aa@~swl alleging `f ive"CCnSti-W*§i}§¥§§¥ §"?.i§"_l?§i:°ln:$: :@1§1§§§1§§§!1§;`£39§1;€§<§ :Qf :b_i.‘_S_“. t§f`_i}'-il: :<5"0‘1;1§',§_;£?.3:§>'_€?.~=: 111 §_,1,§ - : § In ground nuber one, Applicant contends that his sentence ofthirty years in Cause No»1227019D `, is illegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby.making his punishment excessive. In ground number two, Applicant contends'that his sentence of thirty years in Cause No.1227019D , is void because the State presented "No Evidence" to support the n enhancement paragraphs alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he _was denied due process and due course of law when the State presented "no evidence" to support the enhancement_ allegations as required by Section 12.42(d), Texas Penal Code; thereby making_his thirty year sentence void. »In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a Self-incriminating statement against‘ himself. Argument And Authorities Ground Number One, In ground number one, Applicant argued that his sentence of thirty years in Cause No. 1227019D is illegal because the""Judgment Of Conviction By Court" and ‘ , the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. 1 State's Reply To Petition For Writ Of Haheas Corpus 1n addressing ground number one, the dlstrlct attorney argued that relief should M'~~'"he denied simply because'=="the indictment alleged two prior felony convictions? a ` 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be-true. _Thus, the'applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, -his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's clairn that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1- 5, and R R. VOl#Z, Pp. 109 through pp. 114). _Applicant maintains that because the VJudgment of Conviction and the Reporter's 1 Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#Z,pp.lOQ through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U. S. C. §2254(e)(1). Habeas Courtlkmrmandum/ Findings On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting the district_attorney's interpertation of the events on all_five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any 4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp.l). Applicant's `Traverse'Tb The Trial Court's Findings k Appllcant now contends that the Court of Cr1m1nal Appeals should not adopt the trial court's recommendation to ground number one based .upon the fact that the trial court's findings is contradlcted by the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of Conviction By Court and (R.R. Vol#Z,pp-lOQ through pp.114). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of_ConvictionBy Court-Waiver of JUry Trial"). Likewise, a review»ggthe punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence of thirty years void. Moreover, the record shows that' the district attorney only asked the trial court to take iudical notice of the presentence investigation report and then rested. (R. R. Vol#3, pp.7, line 6 through pp.B, line 1-15). Nevertheless, without any evidence beingpresented at trial to support`the enhancement ailegation, the trial court illegally concluded: FBased upon the foregoing evidence and the information that's been provided to _...~»` , -';; A.zz;“~,l'§,m ,,~¢ 1 f the cou§t and your admlsslon, the court hereby finds you guilty o§ all five caus§ 'sj’ am - numbers in 1222336, 122701§, 1227020, 1227021, 1227111, all respectively styled the_ b State of Texas versus Matthew C. Cotten. The respective enhancements are also found ==e====€frm$na§rddstrce~*Tn-€ause=No==i£ZJWTT==the€ourE=zH‘f‘“" to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the Texas Department of j 'ff”es“you to au*yeafs----~ 'in the Institutional Division of the Texas Department of Criminal Justice." (R. R. Vol#3, pp. 86, line 18 through pp.87, line1-7). Section 12:42(d); Texas Penal Code governs the punishment for habitual felony offendersl and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. EX Parte Rich, 194 S.W,3d`508, 511(Tex. Crim. App.2006). IN explaining how Section 12.42(d) operates, the Court of Criminal Appeals have consistantly held _that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the pgnish» ment can not be legally enhanced. Cole V. State, 611 S.W.Zd 79, 80(Tex. Crim. App. 1981),~ Mizell v. state, 119 s.w._ad at_ 806(1@¢. App. 2006),- Jordan' v. state, 256 ~ -~S;Wv3d!290}7293(Tei§Ciim}»App{12008); »_ “;;fii¢-~. ~.;._1He`r:e*;lliln“;:applilicant'~ts'~,cas'e?';now;llbe°fore"?ithe i'~; Gour:t~:of;lCgiminalliAppeals`éllthe“;fr"e”e‘o“'fd; - `.» ~ . v ‘ 'Shtzws ‘that’ atr 'th`e':.-_ `. 4,>. ...;1'.¢»` __N v__.l_'learing the State only asked §he court to _take_ ]ud1c1al notice of the presentence investigation report which did not contain. any evidence of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations .true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three l v In ground number two} applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. t » In ground-number three, Applicant argues that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d), Texas Penal Code; thereby~making his thirty year sentence void. =_=_-=:.--=-=St~a~t“é=a-S~=R@j_-y iu PE‘!','_]_"I:_IUII"`FOI'"WI'.II ur HHbéBS" ppm .In' addressing grounds two and three, the district attorney argued that relief should be denied because: 4 4 ' C "The record herein is not totally devoid of evidentiary support for enhancing _ the applicant's sentencing range." (See; Statels Reply,pp,§), More specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a ` judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to the;appearanc§,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional t.-iiiquestlons_ofilaw;and factsregardingiappllcant's clalm.thatithe Stateipresentedi£no”_11_1111 evidence"-to support‘:the essential elements of the enhancement paragraph as required~“t by Section 12. 42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State's Reply, pp.5- 6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) apmdicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts have long held that in all criminal prosectutions regardless of the`plea or whether the punishment is assessed by the iudqe or the iury,.in no event shall a person charged\with a criminal. offense- 1 be convicted upon his plea without sufficient evidence to support the same. Article¢ / 1.15, Texas Code Of Criminal Procedure; Stone V; State, 919 S.W.Zd 424, 426 (Tex. Crim. App. 1996); Messer V. State, 729 S. W.2d 694, 698(Tex. Crim. ADD 1986); Stokes V. Procunier, 744 F. 2d at 483; Thompson V. louisville, 362 U. S. 199, 80 S. CT. 624(1978)~ Furthermore, proof of prior convictions contained within the presentence inves-, tigation report is inadmissible as proof of a final conviction where the P. S I. report 1 did not contain Certified copies of prior iudgment of convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for a stipulation to_be_ considered as_ evidencelwhere_ the_ plealis“hefore the_courty,the_ stats;__, -nmst introduce a copy of the iudgment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.Zd at 698; Stone, 919 S.W.Zd at 426; Ex parte Brown, 757 S.W.Zd at 368; EX parte Rich, 194 S.W.3d at 513. Here, in applicant's case noulbefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a indicial confession admitting to all of the-allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- _ examination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5), In conclusion)`the"record clearly shows that;the State den1ed applicant due _ _ ,~___" process and due course of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas.Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essential elements of the enhance- ment allegations true beyond a reasonable doubt. Habeas Court Memorandum / Findings In addressing ground number two and three, the trial court erred in stating: 1 "The Court finds that the applicant' s 1udicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, pp. 1)§ Applicant's Traverse Tb The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial` court's finding that--"applicant's 1udicial confession (standing alone) provides some tevidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his iudicial confession standing alone is not enough to support proof of a final v¢onviction, where the P.S.I. report did not contain n certified copies of prior iudgment of convictions against him. See: Garcia V. State, 930 S.W.Zd 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte Rich, 194 S.W.3d at 513. The Texas Court of Criminal'Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of ' Criminal Procedure; Stone V. State, 919 S. W.2d 424. 426(Tex. Crim. App. 1996); Messer V. State, 729 S. W.Zd 694, 698(Tex. Crim.App. 1986).L1kewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final conv1ct10n, where the P,§ .I. report did not contalnlcert1f1ed_cop1es ->.a.(¢..¢ jigf prior iudgments _of convictions against the applicant. Garcia,~930 S W.Zd at 623. In summary, the State must introduce a copy of each iudgmént of convict1on, in each case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell V. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals{ the record shows that the State prosecuting attorney only asked the trial court to take 1udicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.114, line 16-21) and (R.R. Vol#3,pp. 71 line 6 through pp.8, line 1-15). Furthermore, there were "no_evidence" of prior convictions contained within the_P.S.I. report. TThus, based upon the recordy no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing.- Ground Number Four And Five In ground number four and five} Appli;ant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda Warning" to him as required ny m\..LL.J.€_ 3(). 22 §"3'(“8_’)‘("2')”'*"1’€§{&8“€0€]€"0£"\.1 imixic.i.l. riuc..v::cuuic. "_"_H"_"" 7 "‘""“"`__"`“_` In ground number five, Applicant argued that Detective Anderson violated his due process right under the fifth and fourteenth amendment of the United States Constitu- tion when he threatend .physical harm to him and his property in order to coerce him 1 to give a self-jncriminating statement against himself. state's Repiy .To Petit'ion For writ of Habeas corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: "The applicant's Miranda and due process grounds for relief are not cognizable ,because these same complaints were re1ected on direct appealr",(See: State!s.Reply, pp.6). `w'However, the“district“attorney has failed to address applican *'constitutional""~~“-~ ~-1viequestions~ofllawland fact regarding~additional evadence_that is being presentedi,for";:;;;-_ the first time in this foregoing habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claims raised and re1ected on direct appeal are not cognizable on habeas corpus§ Ex parte Schuessler, 846 S. W.2d at 852(TEx. .Crim. App.1992); Ex parte Goodman, 816 S. W.2d 383, 385(Tex. Crim, App. 1991); Ex parte Russell, 738 S. W. 2d 644, 646(Tex. Crim.App. 1986) Habeas Court Memorandum / Findings _ In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding, w n pp; 1\; Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground four and five be denied based upon the trial court's finding that: __________________ l _ *_ _*_ ‘_ _ "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar,_ because his claims now before the court are fundamental constitutional claims that are based upon new theories that were not presented on direct appeal. Ex parte Good- man, 816 S;W;Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d_644(Tex. Crim. App.1986); Ex parte Schuessler, 846 S.W.Zd at 852(Tex. Crim. App. 1992). The law is clear, although habeas corpus is traditionally .unavailable to review matters which Were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. EX parte Schuss£er, 846 S. W.2d at 852 (Tex. Crim. App1 1992)(granting re11ef due to lack of iurisdiction); Ex parte Russell,- 738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void Mprior;; conviction)h*§x parte Bravo, -792 S.W.2d 189(Tex Grim.App._1982)(grantingare11ef~_; do to the improper excusal of a veniremamber) EX parte Clarkr-597 S W.2d-760(Tex 7 - ~»--~ Crim.App.1979)(granting relief due to the trial court' s failure to apply the law to the facts of the case). n Here, in applicant' s case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson Violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United~ States Constitution when he failed to read the “full miranda warning" to him as required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of law, pp.14). ` After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appealr Consequently, the trial court's finding that --"applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to " the trial court for a new trial. 'Likewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review 'of applicant's fifth ground for_review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amendment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incrhoinating statement against himself. (See: Applicant's Memorandum of Law, pp.17). ln summary, after comparing applicant's ground number five in his habeas corpus petition to applicant' s claim number two on his direct appeal, it becomes clear that the claims are not the same because appllcant is now presentlng a constitutlonal issue of fundamental error,based upon a theory_ not alleged on_ direct appeal Consa;uently, the trial court's finding that --"appl1cant's Miranda and due process grounds for re-'“ lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli¢ cant So Moves The Court. Respectfully Submitted: Wamw&m Matthew Cotten No. 1826716 Coffield Unit 2661 F.M; 2054 Tennessee Colony; Texas 75884 `ln Certificate Of Service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct- copy of this foregoing instrument has been served upon Steven W. Conder, Assistant District Attorney, 401 W. Belknap, Fort Worth, Texas -76196-0201. Executed on this 25th g day of February, 201‘5. " Sicm: WMM £9>56;`/ Matthew Cotten No. 1826716 Appl 1cant, Pro se 11 writ No. c--432_`010373-1227020-A Ex Parte In The 432nd Judicial District Court mimmme Matthew Cotten Tarrant Cdunty, Texas" Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of Law / Tb The Honorable Court Of Criminal Appeals: Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion 0f Law" asking the Court¢Qf Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support thereof will show this court the-following: .Groumds Fpr Relief . tirlmii;;;iconzuanuary;Az;ZOIS;;AppIicant:filed:this;foregoing:writ40ishabeasrcorpusl;:;f;;!i;;sl;31 ' ’ ' i‘ ' '" alle‘ging"five"¢@n€fi'flz§i'onal‘vibla“t‘i;<:risz‘;§@§;:19;1::1;€:§:;qu;r:s:<§;.<2§:1.1;;$;;;;1;@1;1;:§§@:;:b;r:c>;¢:e;e:<;i;@§;:;: ; ‘ In ground nuber one, Applicant contends that his sentence of thirty years in Cause No.1227020D , is illegal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirty years in Cause No.1227020D , is void because the State presented "No Evidence" to support the- enhancement paragraphs'alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he _was denied due process and due_ course of law when the State presented "no evidence" to support the enhancement allegatiOnS aS required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. ' l p In ground number four, Applicant contends that Detective Anderson violated his . "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. ' In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a Self-incriminating statement'againstfhimself. Argument And Authorities Ground Number One In ground number one, Applicant argued that his sentence of thirty years in Cause No.1227020D is illegal because the""Judgment Of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition Ebr Writ Of Habeas.Corpus ln addressing ground number one, the dlstrlct attorney argued_ that_ relief should ~f**'~“~be denied~simpiy~because ==§the indictment'alleged two’prior felony convictions?'a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 'burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's clain1 that the record affirmatively reflects that his sentence is-illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual _ offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and' _Applicant maintains that because the "Judgment of Conviction and the Reporter's v Record" at trial shows that applicant plead "True" only once during the entire course of trial, and ;the trial court found only one enhancement paragraph to be true (See: R¢R. Vol#2,pp.109 through pp.ll4) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled~to the presumption of correctness under 28 U¢S.C.'§2254(e)(l)¢ Habeas Court Memorandum/ Findings On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any- 4 decussion--"The Court_finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pP-l)- wJ§inicantfsilm§ni§§¥§d§liThé»TriaI`Courtfs~Findings» 1.»1%aApplicantrnowacontends ..... that…thewCourt of icriminal Appeals…shouldgnotwadgptathe:;;q;;” mw“trial_court!s~recommendation»to~groundmnumber§one_based~upon~thewfact~that~the»trial ~~~~~~~~~ 'court's findings is contradic ed hY, the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- .ment of Conviction By Court and (R.R. Vol#Z,pp.lOQ through pp.ll4). A review of the "Judgment of Conviction By Court" at trial`clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found- only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewise, a_ review@gfthe punishment hearing shows _that the State never presented any evidenceto support the enhancement allegations thereby making ` the trial court's sentence of thirty years void. Moreover, the record shows that v the district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to support the enhancement a11egationy the trial court illegally concluded: PBased upon the foregoing evidence and the information that's been provided to ');'1 _'~'y:_1§,. idle _tsr~_§f_._`€l§eja;;li §S§_h<;>\i$ ,1=?,1§1!`:.1 thle`_` §§Qts _@érlli~“.€§i; S§QQlli<§éf}§l <;ills`. ; `_ process aid due course of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12;42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essentian elements of the enhance- ' ment allegations true beyond a reasonable doubt. Habeas Courtbkmxmandum / Findinqs In addressing ground number two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, Tpp. 1). Applicant's Traverse Tb The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--“applicant's iudicial confession (standing alone) provides some .evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his 1udicial confession standing alone is not enough to Support proof of a final -¢onviction, where the P.S.I. report did not contain vcertified copies of prior iudgment of convictions against him. See: Garcia V. State, 930 S.W.Zd 621, 623(Tex. App. 1996); EX parte Brown, 757 S.W.Zd at 368; Ex parte Rich, 194 s.w.3d at 513. ` " The Texas Court of Criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of Criminal Procedure} Stone V. State, 919 S.W.Zd 424. 426(Tex. Crim. App} 1996); Messer V. State, 729 S W.2d 694, 698(Tex. Cr1m App. 1986). LIkewlse, allegations of prior _ convictions contained within the presentence investigation report is inadmissible as proof_ of a final convlctlon, where 1he P. S. I. report did not containwcertified-copies_ _of prior 1udgments of _convictions against the applicant. Garcia, 930 S. W.2d at 623».._..._- In summary, the State must introduce a copy of each iudgment of conviction, in each n case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell Y. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take iudicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,pp.114, line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidence"- of prior convictions contained within the P.S.I. report. IThus, based o upon the record¢ no rational trier of fact could have found the enhancement allegations‘ true beyond a reasonable doubt, In conclusion, the recommendation of the trial -court _ nmst be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five In ground number four and five, Applicant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State\Constitution when he failed to read the full "Miranda Warning" to him as required =======ty=Artrcie-se-ai~ftézhattat»‘Teras=eodeeof=errmrnai~r1ute=aule. In ground number five, Applicant argued that Detective Anderson violated his due process right under the fifth and fourteenth amendment of the United States Constitu¢ tion when he threatend ~physical harm to him and his property in order to coerce him to give a self-jncriminating statement against himself. State's Reply Tb Petition For Writ of Habeas Corpus In addressing ground number four and five, the district attorney argued that relief'should be denied because: FThe applicant's Miranda and due process grounds for relief are not cognizable >~because.these.same complaints were re1ected on direct appeal." (See; State!s Reply, pp.6). '"“‘M“*“““M“However, the“dlstrlct attorney has‘failed to ad jress applicant s constitutional“"‘“"“ -11;W~w~questions:of:law;and factiregarding.add1t1onaldevidence that.1sibeing:presented:;for;----~_c: the first time in this foregoing habeas corpus petition that was not presented on direct appeal; This evidence creates an exception to the general rule that claims, raised and re1ected on direct appeal are not cognizable on habeas corpus. Ex parte schuess1er, 846 s.w.zd at 852(TEx1'c;im. App.1992); Ex parte Goodman, 816 s.w.zd 383, 385(Tex. crim, App, 1991);'Ex parte Russe11, 738 s.w.zd 644, 646(Tex. crim.App. 1986). Habeas\Court Memorandum / Findings _In addressing ground number four and five, the trial court erred in stating: FThe Court finds that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. Applicant's'Traverse Tb The Trial Court's Findings{ Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground four and five be denied based upon the trial court's finding that: "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims now before the court are fundamental constitutional claims that are based upon new¢theories that were not presented on direct appeal. Ex parte Good- man, 816 SSW;Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.Zd 644(Tex. Crim. App.1986); EX parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law ’ is clear, although habeas corpus is traditionally ,unavailable to review matters'which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schussler, 846 S. W.2d at 852 (Tex. Crim. App. 1992)(granting relief due to lack of iurisdiction); Ex parte Russell, 738 S. W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void ".prlor.convlction)b.Ex parte Bravo, 702; S: -W.2d 189(Tex Crim. App. 1982)(granting;re11ef _ rdo to the improper excusal Qf a veniremamber): Ex parte Clark, 597 S. W.2d 760(Tex*»¥v~~~»~-~- Crim.App.1979)(granting relief due to the trial court's failure to apply the law to the facts of the case). Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals¢ pp. 4). However, a review of applicant' s habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that _-"Detective Anderson violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning" to him as required by Article 38122 § 3(a)(2 ), TeXaS Code of Criminal Procedure. (See: Memorandum of law, pp.14). ' d After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently,‘the trial court's finding that --"applicant' s Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. 'ldkewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amendment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incrnninating statement against himself. (See: Applicant's Memorandum of Law, pp.17). »I_,n Sumarv ._,a-f;t»€_r swearing applicants ground-amer five in;hi$ habeas Corbus petition to applicant's claim number two on his direct appeal, it becomes clear that '".the claims are not the same because applicant is now presenting a constltutlonal 1ssue lof.qundamental_error_based.upon-a-theoryinotlallegedoon_directg appealluconse;uentlyi___“_y, the trial court's finding that'll“applicant?s'Miranda"and"dué`proces§wgfound§`for'ref`" lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant' s cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves The Court. Respectfully Submitted: Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 10 certificate of service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy of this foregoing instrument has been served upon Steven W. Conder, Assistant __1District AttorneyL_401 Wt~§elgnap, Fort Worth, Texas 76196-0201. Executed on this_g§;h_¢-;_*_ day of February, 2015. SiCm: Wvdjjj\-MM-/ M/ n Matthew Cotten No. 1826716 Applicant, Pro se 11 }wri_t. No. c-432"*o_10._374-1`227`o21-A_ .-. ' l 11 ', ‘ 1 fn 'Rle 432nd Micial Distriet court. In grumxdnuber one, Applicant contends that his sentence of thirty years in cause No. 12270211) ,_ 1a miegal because the "Judgment of convictim By court" `and the "Record At Trial" shows that the trial court found only one enhancement paragraph true, thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirty years in Cause No. 12276211) , is voidj because the State presented "No Evidence" to support the ' enhancement paragraphs alleged in the indictment, as required by Section 12.42(d), Texas Penal code,' thereby denying him due process under the State and Federal Con- stitution. ¢ x In grand number three, Applicant contends that he was denied due process and due course of law 1:when the State presented "no evidence" to support the enhancement v allegations as required by Section 12. 42(d), Texas Penal Code; thereby making his thirty year sentence void. ,;. In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth limendment,:`;`J when he failed to read the full "Miranda Warning" as required by Articls 38. 22_§ 3(a)(2), Texas Code of criminal Procedure. 1 In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amsndment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement again§ ,S,himself. ' ;-".r:‘ ..u`s "< a -'1 4 Argument And Authorities In ground number one, Applicant argued that his sentence of th1rty years in cause No. 1222336D is illegal because the""Judgment cf conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. . 14 _ ». n .,. State's Reply ib"Petitio_n For writ cf Habeascoram In addressing ground number one, the district attorney argued that relief should be denied simply because --'.'the indictment alleged two prior felony convictions§ a 2003 conviction for possession _of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. ‘l‘husl the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply 'Ib Petition For Writ cf Habeas 4 corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claim that the record affirmatively reflects that his sentence is illegal because the "Judgment of comriction ~By court'.'- and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one exu'uanceme`nt paragraph true, thereby acquitting applicant of the "habi-tual _ offender allegations.. (Seeu Judgment cf conviction By court, Appendix No. .1-5, and R.R. Vol#Z, pp. "109_, through pp. 114). ' ` Applicant maintains that because the "Judgment of Conviction and the Raparter°a Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. vol#Z,pp.lO_Q through pp.lld) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of cormctnesa under 28 U.S.C._i §2254(e)(1). mccarthmarand\m/Fitxdings On February 2, 2015, the habeas court issues it's "Menmrandum / Findinga!‘ adopting the district attornay’ s interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and facts _ ‘ In addressing §roun_d nmber one, the trial court simply stated without any decussion,--"Tha Court finds that the applicant's thirty year sentence is not ereessi_ve. The court tecunmends that this ground for relief be denied." (See: Mezmrandtm / Pindings, ppol)o v ‘ l ' ` ` `; ` Applicant'e inverse ‘Ib The Trial court's Findings :"f_*f' Applicant now contends that the Court of Criminal Appeale should not adopt the trial court's- reemendation to ground number one based upon the fact that the trial court's findings is contradicted by the record of evidence at trial which shows that the trial court only found one enhanth paragraph to be true. (See: Judg- .- mem of convxccian ny conn anei.(~n.n. voioz,pp.wu through pp.m). A review of the i"Judgment of Conviction By `Oourt". at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See¢' dudgmsnt of ConvictionBy Court-waiver`of JUry Trial"). Likeyise, a reviewer the punishment hearing shows that the State never presented anyg evidenceto support the enhancement allegations thereby making the trial nancy 3 sentence of thirty years void. Moreover, the record allows that the district attorney only asked the trial court to take judical notice of the presentence investigation report and then reeted. (R.R. Vol#S,pp.?, line 6 through pp.d, line 1-15)~,; Nevertheless, without any evidence beingpresented at trial to support the enhancement afiegation¢ the trial court illegally concluded: 'E'»'Based upon the foregoing evidence and the information that's been provided to 3 the court and your admission, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. Cotten. The respmtive ermancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 3_0 years in. the Institutional division of the 'De)ias Department of Crimina1 Justice. 1n Cause No. 1227111, theCourt hereby sentences you to" 20 years in the Institutional Division of the Texas Department of Criminal Justice.*¥ (12.R. Vol#3,pp.86, line 18 through pp.87,line1~7) ' Section 12. 42(d), Tei`cas Pena1 ¢ode governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parts Rich, 194 §. W. 3d 508, >,¢;;;f‘f" 511('!'ex Crim. App.2006) IN explaining how Section 12. 42(d) operates, the Court 6f "Criminal Appeals have _cansistantly held that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancemnt` allegations, the punish- ment can not be legally enhanced. Cole v. State, 511 S.W.Zd 79, 80('1'ex. Crim. App., 1981); Mizell V. State, 11_9 S. W.Bd at 806_('1“e'x. App. 2006); Jordan V. )State, 286 s.w.3d 290, 293('1~@¢ crim. App. 20081 ' ' ~‘ ` ' '5 ' "Here, in applicant's case nov before the Court of criminal Appeals the record shows that at th`ef;'. `W 1 hearing the State only asked the court to take judicial notice of the presentence investigation report which did nat contaian any evidence of any prior felony convictions. (R.R. 2 Vol#3,pp.7, line 6 through pp.B, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond `a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. " In ground number two, applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12. 42(d), Texas Penal Code, thereby denying him due process _ \mder the State and Eederal Constitution. l In ground number three, Applicant argues that he was denied due process and due course of law when the State presented "no evidence" to support the enhanth allegations as required by Section 12 42 (d)`, Texas Penal Code, thereby making his thirty year sentence frbi§. 7 State's Reply'l'opstitim _Ebr Writofl~tabeascorpus 4 », . .jgj in addressing grounds two and three, the district attorney argued that relief should be denied`because: ‘ ` » - "The record herein is not totally devoid of evidentiary support for enhancing the applicant's sentencing range." (See, State 5 Reply,pp,§) ii g ii More specifically, the district attorney argues that there is some evid 3 v v ` to support the enhancement allegations based upon (1) "The applith entered a § judicial-§ confession admitting to all of the allegations in the indictment, including the enhancement anda habitual allegationsr and (2) "The applicant waived?'his right to the appearnceh confrontation and cross-examination of witnesses, and consented to oral and written stipulationsiof evidence." (State's Reply, pp.5) § § ;1;€= However, the district attorney failed t_o address applicant's constitutional questions of law arid fact regarding applicant' s claim that the State presented "no evidence" to support the essential elements of the enhancement paragraph as required by Section 12. 42(d)‘, Texas Penal Code; Artic1e 1 15, 'rexas _Qode of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti+ tution. (State' s_ Reply, pp.5-6). ` _ Applicant maintains that proof of prior felony convictions requires more than (1) applicant's judicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts have long held that in all criminal prosectutions regardless of the plea or whether the punislmcent is assessed by the judge or the jury, in no ssent shall a person charged with a crimina1é offense be convicted upon his plea without sufficient evidence to support the same. Artifcle 1 15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.Zd 424, 426 (Tex crim. App. 1996); messer v., stace, 729 s.w.zd 694,698('1ex.cr1m.npp.1986);_stokes v. Procunier, 744 é,za_\at 483; `Thmpsg§dc%§€n No. 1826716 _ ij n ' 4 2661 F. M. 2054 .; Tennessee Colony, Texas 75884 10 "’” ~`cen-,ifieaté=of service I, Matthew Co`tten,_ Applicant, Pro se, do hereby certify that true and cdrrect ' Assistantw v;;, copy of this foregoing instnment has hew served upon Steven W. Conde_r: District Attorney_, 401 W. Bellcnap`, Fort Worth, Texas 76196-0201. Execut"ed on this 25th 'day of February, 2015. l; § g Matthew Cotten No. 1~826716" `:- win 1=` ";' |', .' " f " __ Appllicant, Pro " ;:` f \: " a , '.,. ?\ ~. 331 !;i" <}' ; ,.. §'r," 11 .._jwnt No. c-432-6010375.;`~1-227111_A . m Parte ‘ rn me 432nd metal January 4, 2015, App§ieant fiied this foregoing writ of habeas corpus ' ' alleging five constitutional mablatione during the course o£ his tria1 court proceeding. ' L,. 1"\ In ground maher ansi Applicant contends that his sentence of twenty years in Cause No. 12271111) , is ii1e`ga1 because the "Judgment of conviction By court" and the "Record At Trial" shows that the trial court found only one ermancanent paragraph true; thereby making his punishment mssive. In gmmd nimmer '.two, hpplicant contends that his __.`sentence of thirty years in Cause No. '1.22`7111D , is void because the State presented "No Evidence" to support the enhancement paragraphs’ alleged in the indictment, as required by Section 12.42(d),‘ 'rexas Penal coae`, thereby denying him due process under the statejend sederal c46_;A at parte Rich, ,194` s.w.ad at 513._ Here, in applicant's case now`be'fore the _Texas Court of Criminal Appeals, the record shows that the State`._proaecutin|g¢attorney_only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- _senting any avidence_of a judgment of prior conviction, (See: R.R. Vol#Z_,pp.lé\'%, line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.B, line 1-15). Furthermore, there mate "no evidence" of prior convictions contained within the P.S.I. report f"'."'-;Thus, based upon the record, no rational trier of fact could have found the enhancainent allegations true beyond a reasonable doubt. In conclusion, the rec¢muuendation of the trial court must be overruled and applicant's case remanded back to the trial court for a new punishment hearing. In;ground_ number four and five, Applicant argued that Detective Andereori violated ` his Miranda Right guaranteed to him by the'fifth and fourteenth amendment of the United ' State Constitution when he failed to read the full "Miranda Warning" to him aa required by Article 38.22_ § 3(a)(2), Texae Code of Criminal Proceedure. ~ In ground numher five, Applicant argued that Detective Ande_reon violated hie due process right under the fifth and fourteenth amendmnt of the United States Constitu- tion when he threatand physical harm to him and his property in 9rder to coerce him to give a self-mcriminating statement against himself. _ 17 -,;.;: states ,nepiyk. 'ro~x>etitim~ror writ ore names corpus ~ . In addressing ground nimmer four and five, the dietrict attorney argued :th_at relief should be denied because: ` ’ ' ‘ ' ' ‘ ' "The applicant's _§ii'randa and due process grounds for relief are not cognizable `."\4 because these eama complaints were rejected on direct appaal.u (See; State'°a Reply, . pp.d). ‘ ' ' ‘ ' " However, the dietrict attorney has failed to address applicant's constitutional - questions of law and fact regarding additional evidence that ia being pres\'~z,nte`d;-_=;3 for the first time in (thie.foregoing habeas corpus.patitio_n that was not presented on direct appeal. 'Ijhie evidence creates an exception -to the general rule that claims raised and rejected on direct appeal f~€-are not cognizable on habeas corpue. Ex parte schuesai@r. 346 s,w.za at asz('rec. 'crim. App.xgez); ex parce'coodman, 316 s.w.zd 383, 385(1'ex. Cr-_im, App. 1991): Ex parte Ruasell, 738 S.W.Zd 644, 646('Dex Crim.App. 1 1986). ' In addressing ground number four and ,,five,. the trial court erred in stating¢ "The Court finde that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal. " (See; §§emorand\m\/Finding, pp. 1) Applicant's ‘rraverse To' ‘l‘he Trial court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the - trial court's recommendation that ground four and five be denied based upon the trial court's finding that: ' ` ' `. `. . . » "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: vieumrand\nn / Finding, pp.l). " Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, - because his chains now before the court are fundamental constitutional claims that are based upon new theories that were not presented on direct appeal. Ex parte Good- ' man, 816 S.W.Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d 644(Tex Crim. App_.1986); Ex parte Schuessler, 846 S.W.Zd at 852('I‘ex Crim. App. 1992) The law is clear, although habeas corpus is traditionally`;;€ unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schuss_§\er, 846 S_.W.2d at 852 (Tex Crim. App. 1992)(granting rej‘»:lef due to lack of jurisdiction); Ex parte§ Russell, 738 S.W. 2d 644('l‘ex Crim. App. 1986)(granting relief d'ue to improper admission of void prior conviction); Ex parte Bravo, 702 S. W. 2d 189(*1'elc Crim.App. 1982)(granting relief do to the improper excusal of a veniremamher): Ex parte Clark, 597 S._W.2d 760('1'€¢. Crim.App.`lQ?Q)(granting relief due to the trial court's failure to apply the law to '. the facts of the case) ' Here, in applicant's case now before the Teccas Court of Criminal 1>'11:»pea1s,y the record shows that on direct`appeai cotten argued that the trial ;;~eourt erred in failing to suppress his first statmen_t because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the Texas Code of Criminal Procedure. (See: opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated hi's Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution_ when he failed to read the "full miranda warning" to him as required ._by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandmn of law, pp.14). ' " 4 l ` ' ' ' After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number bna on direct appeal it ms clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error ' hased upon a theory not alleged on direct appeal. Conse@ently, the trial court's finding-' that --"applica_nt's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded back to the trial court for a new trial. Lil"cewiee,`a review of applicant's second claim on direct appeal shows that he argued that his waiwer of his statutory rights was not knowingly, intelligently, and " voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process ~rig`ht' under the Fifth and Fourteenth mandden_t of the united states constitution when he threatened physical ` abuse to applicant and his property in order to coerce him to give a self.incrimi nating statement against himself. (See: Applicant's Memorandum of levi pp.l?). ` ‘ In"suumary, ai'ter comparing applicant "s ground number five in his habeas corpus l petition to applicant's claim comer two on his direct appeal, it because clear that z the claims are not the same because applicant is now presenting a constitutional issue _ of jjfundamental error based upon a theory not alleged on direct appeal'. Consequently, `-the trial court's finding that --"applicant's Miranda and due process grounds for re- ` lief are not cognizable because they were litigated on direct apmal"-umst be over- ' ruled and the case remanded back to the trial court for a new trial. ' ' ' ' miclusi¢m In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new mmishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed -and remanded for a new trial based upon grounds number four and five. Appli- cant so waves The court. ' Respectfully Sulunitted: mandate N°~ 1926'/16 2661 F.M.f 2054 Tennessee Colony, lanes 75884 10 ;f? ' 5cear-t`u."iuute or survi' 1 gao ' v I¢ Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct ' copy of this foregoing instrument has been served upon Steven W. Conder, Assistant District Atturnoy, 4a1 w. suil