Reed, Jamal Anton

uo, 611/01

cAUsE No. wR-40,571-02

EX PARTE IN THE COURT OF CRIMINAL APPEALS

OF

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AUSTIN/ TEXAS

HE@EWED

APPLIcANT*s PRoPosED FINDiNGs oF FA@W '
IN oBJEcTIoNS 'Io sTATE's REsPol\Ts§"`*'®[':"‘T op CR-WFNAL APPEALS
.QUL 03 2015

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NOW COMES, Jamal `Anton Reed, Applicant in' the above mentioned cause

JAMAL ANTON REED

TO THE HONORABLE JUDGES OF SAID COURT:

hereby files this Proposed Findings of Facts in Objections.to State's Response
in accordance with Article ll;O7 of the Texas Code: of Criminal Procedure

and would like to present to this Court the following:

FACTS TO SUPPORT OBJECTIONS

(l). The State is quick to state that these allegations are to be denied
since they were not brought up on Direct Appeal.-The ruling majority continues
to chastise any applicant from raising issues on a Writ of_Habeas Corpus
_ that could have abeen raised on direct appeal. But, is the applicant to be
chasitsed and punish aaplicant.when it was his attorney's job to raise those
issues and is the applicant to suffer for his appellate cpounsel's failure
to do so?

(2). Applicant has‘ trying from day one of his incarceration trying to
obatin a copy of his psychological report from Dr, Burns but has been impeded
by' the` state and appellate court from obtaining.such evidence and now the
State has graciously provided him a copy which makes this newly discovered
evidence.

In the report on page 3.it shown that the applicant was taking medication
orhad taken medication for the symptoms during the time of his alleged offense.
It. was for a sexually transmitted disease and the court failed to bring this
evidence to light since the victim never shown any such symptoms if the appli~

cant was indeed part of the criminal act.

l.

(3). The applicant was lnot accused by the victim as being one of the
assailants during her trying 'ordeal. He was either suspect l or suspect 27
since neither_ party had been unmasked to bee identified. His accuser was

e \l3-year old informant who was arrested for cutting off his monitor and
made. a- statement”;n Then released _and arrested again and made a different
Statement. This information wast not brought forth neither was the informant
who made the statement by the state in order to prove identity. This was in a

direct violation of the.confrontation clause.

(4). The confession .of the.applicant is null and void since there was
so much durress and coercion iused by the detectives by taking the applicant
from one place to another and overbaring his will by not giving him any rest
or a chance to be with his mother or attorney during the interrogation process.

See Affidavit in appl ication.

(5). On March 'lO, 1994 Cause .number 52783~J was dismissed since the
applicant was certified in cause number 52784-J. This causeznumber dealt with
section 22.021 and 30.02 of the Texas Penal Code. See Exhibit One. Once the
l district court1 was' given jurisdiction-the sexual assault case was given a
seperate indictment number' and the robbery a seperate indictment number.
The sexual assault charge was.split.between 52783-J and 52784~J which indicated

two seperate sexual assaultsr_but only one incident.

(6). OnO4-l9-94 DNA test were run on parts of evidence in question were.
the tests shown that the semen collected was not that of the applicant and
there were 5 men tested and the only two that had matching issues was Atrice
Oliver and Donald Bolden; There was not enough evidence to do extensive
testing; See exhibit two.

"Test number two perfromed on April> 9, v2012 shown that the applicant
. is to not be excluded. The. spemn fraction of the oral swabs from the victim z
is a mixture of at least two individuals, including at least one male. But,
yet two males and one woman is to not be excluded. Yet, there was concrete

evidence that the applicant was one of the actors. See Exhibit three.

(7). On March'lO, 1994, the juvenile court granted ststaeis motion to
waive jurisdictin and transferred applicnt's case to the 297th Judicial Dis-
' trict oourt. ' '

The trial court entered a verdict of guilty and punishment of eighty
(80) years confinement in the Texas Department of Criminal Justice-Corre-
ctional Division ~on March l7, 1995. He was convicted of aggravated robbery
with av deadly weapon, to wit: a firearm, and aggravated sexual assault with
a deadly weapn, to wit: a firearm.

'His appeal was filed then affirmed on January 15,'2004, according to the
State, 9 years after the verdict. `

On this Habeas-Application the applicant contends that the Court erred'
in waiving jurisdiction. Specifically, he argues that the juvenile court
` abused ith discretion.because (l) it failed to provide a specific statement
of its reasons for waiver to certify its fact'findings: (2) it misunderstood
and misapplied the factors it uwas required ‘to consider in deciding to waive
jurisdiction; (3) the finding related to applicant's sophistication and matur-
itywas unsupported by the evidence; (4) its finding vrelated to adequate_
protection ’of the public and unlikelihood of rehabilitation was unsupported
nby the evidence; and (5) it vbased its decision on factors .that are not
proper 'considerations' in the waiver analysis; (6) failed to render a service
' of summons upon the applicant. n

-The State however, argues that the juvenile court followed proper proced~

ures in reaaching its decision and the evidence supported the court's find-
ings. ` t
In Kent v. U.S., 383 U.S. 541, 86 S.Ct:GlO45, 16 L.Ed; 2nd 84 (1966), the
United States Supreme -Cburt"stated that "[i]t id clear beyond dispute that
the lwaiver -of jurisdiction is a 'critically importsant' action determining
vitally important statutory rights ofl the juvenile."id. at 556. The Court
lcharacterized the "decision' as 'to waiver of jurisidiction and-transfer of
the matter to the District Court [as] potentially as important to petitioner as
the difference between five years imprisonment and a death sentence." id
at557. '_ " ` ,
In Hildago v. State, 983 S§W.Zd 746 (Tex.Crim.App. 1999), this Court,
likewise recognized that Vtransfer to criminal district court for adult pros-
ecution is 'the single most serious act the juvenile court can perform...because`
oncel waiver of jurisdiction occurs,' they child loses all protective and
rehabilative possibilities available§'" id¢'at 755.
This Court held in Hidalgo, that "transfer. was intended to be used only

in exceptional circumatances" and that "[t]he philosophy was that whenever

possible, children 'should be protected and rehabilitated rather than subjected
toy the harshness of' the criminal system' because 'children, all children
are worth redeeming.'”_id. at 754(citation omitted). 4

Section 54.02»'of the- Family Code authorizes.a juvenile court to waive
its exclusive, original .jurisdiction and to transfer a child to a criminal
district court if: a

(1), the child. is alleged vto have committed a felony: (2) the child
was fourteen“ years 'of age or older if the alleged offense is a first degree
felony or fifteen years of age or older if the alleged offense is a second
degree felony: and (3) after a full investigation and hearing, the juvenile
court determines that there is a probable cause to believe that the juvenile
committed the offense alleged and that because of the seriousness of the
offense alleged or the background of the juvenile, the welfare of the commun-
ity requires criminal proceedings. Tex. Fam. Code Ann. §54.02(a) (West Supp.
2012), `

Before 1995, the family Code authorized civil appeals from an order
"respecting transfer of the child to a criminal court for prosecution as
an adult." In 1995, the legislature deleted former Family Code section 56.01
(c)(l)(A), which had allowed a civil" appeal from an order waiving jurisdiction.
See Act of May 27, 1995, 74th Leg., R.S., ch. 262, §48, 1995 Tex. Gen. Laws
2517,' 2546. '

In the absence lof a lstatute allowing an appeal, the result was that
the waiver-of-jurisdiction order could only be appealed as in criminal cases
generally, `i.e., after final conviction in the criminal court. See Apolinar
vi State, 820 S.W.2d 792, 793 (Tex.Crim.App. 1991).

To limit the juvenile court¥s discretion in making the waiver determinat-
ion, the Supreme Court in gent set out a series of factors for juvenile courts
to consider. Hidalgo, 983 S.W.Zd at 754 (citing Kent, 383 U.S. at 566-67). The
factors are incorporated into section 54.02(f), which provides as follows:

(1) whether the alleged offense was against person or property, with
greater weight in favor of transfer given to offenses against the person:
(2) the sophistication and maturity of the child; (3) the record and previous
history of the child; and (4) -the prospects of adequate protection of the 1
public/ and the liklihood of the rehabilitation of the child by use of proced--
ures, services, and facilities currently available to the juvenile court.
Tex. Fam. Code Ann. §54.02(f).The juvenile court "may order a transfer on
the strength of any .combination of the criteria" listed in subsection (f).
Hidalgo, 983 S.W.2d at 754n.16 (citing U.S. v. Doe, 871 F.2d 1248, 1254-55 (5th
Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 2761 107 L.Ed. 2d 257 (1989)).

Section 54.02(d). requires 'that, prior to the`hearing on the motion to `
transfer, the juvenile court's "shall order and obtain a complete diagnostic "

study, social evaluationand full`investigation of the child, his circumstances,

4.

and the circumstances of:the alleged offense." Tex. Fam. Code Ann. §54.02(d).

If the juvenile court waives jurisdiction, it must "state specifically
in the order its reasons for waiver and certify its action, including the
written order and findings of the court..."id. §54'02(h). Rigid adherrence
to these requirements is mandatory before a court may waive its jurisdiction
over a juvenile. In Re, J. R. C., 522 S. W. 2d 579, 582- 83 (Tex. Civ. App.-Texarkana
1975, writ ref'd .r.e.); see also In re, J.T.H., 779 S.W. 2d 954, 960 (Tex.

`App.-Austin 1989, no pet.). '

(8) In its Order to Waive Jurisdiction, the juvenile _court found that
"because of the seriousness of 'the offense, the welfare of the community
requires criminal proceeding. Tex. Fam. Code Ann. §54.02(a0(3). The juvenile
Courtnoted that) in making, that determination, it had considered the four
factors enumerated in section 54. 02(f); am

(9) Reed contends that the juvenile Court's finding to his sophistication
and maturity is unsupported by the evidence. In Hidalgo, this COurt noted
that a psychological examination is ordinarily required to assist the court
in assessing a juvenile'sv sophisticatio, maturityi and' the likelihood of.
rehabilitation as required by subsection (f). In his evaluation Dr. Burns
concluded that Reed"is ain a low average range of general intelligence, his
visual and motor skills are below expectation, he was basically very cooperat-
ive and friendly, his thinking was appropriate with no bizzare thought content.
He isn not well controlled emotionallyH`there was evidence of the lower level
of aguisition of society's norms and values, essentially the results are
consistent `with conduct disorder, behavior problems, or a characterological_
disorder. Nowhere did the Dr. state that Reed was sophisticated and mature
but had a rationale to help his attorney. n

The aapplicant concedes that`the juvenile court is sole factefinder and
can choose to believe 'or disbelieve any or all witness testimony. Nonethe
less/ there' must be' some evidence to support the juvenile_court's finding
that Reed was sufficiently sophisticated and mature enough for the reasons
specified by the court in order to uphold its waiver determination. This
court's dreview should preclude that there was no evidence supportive of the
Ocurt‘s findings that Reed was "of sufficient sophistication and maturity
to have intelligentlYM knowingly, and voluntarily waive all constitutional
rights heretofore waived....[and] to have aided in the preperation of [his]
defense." As such, the evidence to uphold the juvenile court's finding regard-

ing Reed's sophistication and maturity as legally insufficient.

5.

(10) Reed contends that the evidence adduced is insufficient to suuport
the court's findings that "there is little, if any, prospect of adequate
protection of the public, and likelihood of reasonable rehabilitation of
[Reed] by use of procedures, services, and facilities currently avaiable
to the juvenile court."

The State contends that the juvenile court did consider rehabilitation
therefore} this. claim should be denied. See State's response page 6.' Thus,_
conceding that a juvenile court can properly find that the welfare of the
community requires criminal proceedings because of the seriousness of the
offense, the background of the individual, or both. However, a finding based
on the seriousness of the offense under subsection (a) does not absolve the
juvenile court's duty to consider the subsection (f) factors.

If, as the state is saying generally, the nature of the offense alone
justified waiver, transfer would.automaticallybe authorized in certain clases
of "serious" crimes such as sexual assault and armed robbery with a deadly
'weapon, and the subsection (f) factors should be rendered superfluous. See_§;§;
L_,_ 541 s.w.zd at 846, noon v. state, 410 s.w.3d 376:_ ` "

(ll) Reed contends that the record shows that he has four mentioned in€i
fractions were one went to adjudication. There was no report iprovided by
his probation officer or_ any testimony given during certification hearing.

Dr. Burns in his 'assessment stated, " No unusal somatic concerns was
expressed. At least mild anxiety was present, although Jamal did not express
it directly. Emotionally, he related adequately. Conceptually, he was organized.
He expressed no guilt feelings and denied anything in the offense, He was
not excessively tense and showed no unusal mannerisms or posturing. He exhibit-
ed no grandiosity or depressive mood. He was mildly depressed about being
in the dentention facility. He was cooperative, not hostile, and not suspicious.
He evidenced no hallucinatory behavior. His motor activity level was appr-
opriate. Hw -was basically very cooperative and friendly. His thinking was
logical and_ appropriate with no bizzare thought content. His affect was
generally appropriate. v

` After careful consideration by this court of all the_evidence is insuf-
ficient to supportl the juvenile court's finding. As to the protection to
the public Reed has one erviolent act of evading arrest of_a police officer
in which he was adjudicated with probation. it is hardly the sort of offense
for which there- is little prospect of adequate protection of the public and

likelihood of rehabilitation by use of procedures, services, and facilities

6.

currently available to the juvenile court.
Furthermore, there as Stated earlier, that there is no probation report

which offers any details as to Reed's time on probation.Since there was no
testimony from Dr. Burns as to evidence of possible rehabilitation this court
should conclude that the juvenile court erred in finding that there is no
prospect of adequate protection of the public and the likelihood of reasonable
rehabilitation of Reed by use of procedures, services, and facilities currently
avaiable to the juvenile court is so great againstthe§roponderance of the
evidence as to be unjust.

(12) Reed contends that he was never given a service of summons. The sum-
monsv is directed to the juvenile and there is no record or petition that
he personally recieved such summons at anytime. The district court lacked
jurisdition on the applicant to charge him with either crime because of the
failure to follow juvenile statutes pertaining to §54.02, §53.06, §53.07(a)
of the Family Code.{ `

Family Code 53.06(a), states: "that the juvenile court shall direct
issuance of a summons to;-(l) the child named in the petition as do §53.07(a)
which gives instructions on how the summons shall be handled. If any of these
procedures are not taken properly the jurisdiction of the juvenile exclusively
retains to the juvenile court and voids any process or procedure taken before
to certify the juvenile as an adult as stated in §54.02(B)(g)(G-l).

If said p%rocedures are not followed and the juvenile is to recieve
such summons personallythee whole procedure to certify him as an adult is
indeeed nixed and invalid. Light v. State, 993 S.W.Zd 740 (Tex.App.-Austin,
1999); In the Matter of H.R.A., 790 S.W.2d 102, 103-06 (Tex.App.-Beaumont
1990). '

v CONCLUSION
Because the juvenile court abused its discretion waiving its jurisdiction
over Reed and certifying him as aniadult¢ the district court lacked jurisdiction
over this case. Therefore, this court is construed to vacate the district

court's judgment and dismiss the case.

CERTIFICATION OF SERVICE

A true and correct copy is being mailed to the District Clerk of the
Texas Court of Criminal Appeals at P.O. Box 12308, Capitol Station, Austin,
Texas 78711 on thiszgf§&;_of July, 2015.

7.

Res_ ctfully Submitted,

4"¢70//7@<¢

amal Anton Reed
TDCJ-CID l Pr`O-S€
2101 F.M. 369 N.
»JA 69

Iowa Park, Texas

~/l t

#701172'
Applicant

76367

APPENDIX
EXHIBIT ONE. . . . . . . . . . .Petitioner ' s Motion to Dismiss
EXHIBIT TWO. . . . . . . . . .1994 DNA Test ing Report
EXHIBHIT THREE. . . . . . . . 2012 DNA TeStinq RepOrt.

ZL~.

EXHIBIT oNE (a)

52783-J
IN THE MATT»H “ }{ ' IN THE 323RD DISTRICT
oF }{ ` coURT oF
JAMAL }{ , TARRANT coUNTY, TEXAS

/

i)i§;'i‘mc':' C h
PETITIONER'S MOTION TO DISMISS

COMES NOW, on this the lOth day of March, 1994, TIM CURRY,
Criminal District Attorney, in and for Tarrant County, Texasy by
and through BROCK GROOM, Assistant Criminal District Attorney, and
requests the Court to dismiss the above styled and numbered cause
for the following reason(s).

1. The respondent was certified in Cause #52784-J.

TIM CURRY
CRIMINAL ISTRICT ATTORNEY
TA T UNT TEXAS

BY

BROCK GRooM“ .
Assistant Criminal District
Attorney, Tarrant County, Texas
State Bar #00784181

AFTER PRESENTATION of the Motion and the Court's due
consideration of said Motion, it is the Court's opinion that the
above styled and numbered cause should be dismissed and accordingly

grants this Motion. §§

SIGNED AND ENTERED this the 526 day of
1994.

-PRB€T®IN@X§UDGE ”

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each, in person, a true copy of this Citation together with the accompanying copy of Plaritiffs original petition, having
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F`or Serving Citation---$

F`or mileage -------------- $ . r \ \of County,
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Total Fees ----- $

(must be verified if served outside the State of Texas.)

Signed and sworn to by the said __________ before me this __________ day of

,19 , to certify which witness my hand and seal of office.

Notary Public, ' County

F.) h chME LABORAroR"
‘ PHYS|CAL EV|DENCE EXAM|NAT'ON
cwa 4_19_94 usomo¢zv ms No: 131411
$ERV'°E N°‘ 93 583462 ` °FFEN$E‘ s£xUAL AssAuLT
susPEcr; M-
V|CT|M: w, H_

TO:
CRIMINAL INVESTIGATION DIVISION

S U P P L E H E N T A L R E P 0 R T
ADDITIONAL EVIDENCE:
____________________

Collected at the Fort Worth Police Department from Atrice L. 01iver 2-23-94, 1155 hours

-17-l8. Blood samples.h
19. Saliva sample.

Collected at the Fors~Worth~Police”Department frbm‘JamaIMAZ Reed 2423494, 1425 hours by
A. Watts: . .

20-21. Blood samples.
22. Saliva‘sample.

RESULTS OF.EXAHINATION:
The following items were extracted for DNA testing:

KS'- Known`blood sample from Atrice Oliver.
K6 - Known blood sample from Jamal'Reed.

High Molecular Weight Deoxyribonucleic Acid (DNA) was extracted from the above items

and each nestrictedmwithwthe Restriction EnzymeWHKE IIIT "DNK profiles for Genetic Loci
DZS44, DlS7, D10828, D48139 and Dl4Sl3 were generated for KS and K6.

`Based on these results}'Jamal Reed is eliminated as the semen donor on the pillowcase (Q2.
The DNA profiles of Atrice Oliver (KS) and the pillow case (QZ) match.

Statistics were generated for Genetic Loci 02344, DlS7, DlOSZB and D4Sl39. The probability
of selecting an unrelated individual having a DNA profile matching Atrice Oliver is 1 in

1.3 billion people in the Caucasian population; 1 in 63 million people in the African-
American population; and l in 310 million people in the Hispanic population.

-\ _ &}wi/Am L€ W/MYL/

Constance Patton, Serologist

SHDoOM

,` EXHIBIBT Two (D) /\

131411

RESULTS OF EXAMINATION:

1.

9.A

9.B and

IO.A

lO.B

l'I`.

13;

1.5..'

Semen was not detected. The victim's blood was typed as 0 Secretor, PGM 1+.

Presumptive tests for semen were positive. Quantity is not sufficient for
extensive analysis.

Semen was detected with H antigen and PGM 1+1-.

Presumptive tests for semen_were positive. H antigen and PCM 1+1~ were'
detected.

Donald Boldon is blood type 0 Secretor, PGM 1+1-.

Barry west is blood.type B, Secretor.

Daryl'Willis is blood type 0 Nonsecretor.“'

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