Rivera, Eliseo Jr.

^,o&^i
Texas Court of Criminal Appeals May 7,2015
Attn: Mr. Abel Acosta, Court Clerk
P.O. Box 12308, Capitol Station
Austin, Texas 78711

RE: Ex Parte Eliseo Rivera, Jr., Trial Cause No. CR-09E-061A,
Appellate No. 07-09-00332-CR

Dear Mr. Acosta,
Enclosed, please find Applicant's Rebuttal to the Trial Court's
Findings of Fact, and Conclusions of Law, along with Applicant's
Request for An Evidentiary Hearing, and Motion Requesting this
Honorable Court to Order the Texas Rangers to Conduct a Criminal
Investigation in re'gards to the prosecution's misconduct.
Please file Said Documents among the papers in the above styled,
and numbered cause. Furthermore, please perform the proper proce
dures so that, a time, and date may be set for it's hearing.
In addition, Applicant has enclosed a self-addressed stamped
envelope, and two copies of this cover letter so that, if you could
please stamp one copy, and return to Applicant to verify your
receipt.
Applicant sincerely appreciates your assistance.

Best Regards,

y^/^M
7"
Eliseo Rivera, Jr. T.D.C.J. #1617277
Dalhart Unit

11950 Fm. 998

Dalhart, Texas 79022
 Trial Cause No. CR- 09E--061A

Appellate No . 07 -09 -00332--CR

Ex Parte In the Texas Court of

Eliseo Rivera, Jr § Criminal Appeals of
§ Austin, Texas

Applicant's Rebuttal to the Trial Court's Findings of Fact and
Conclusions of Law And Request for An Evidentiary Hearing

To the Honorable Justice(s) of Said Court:

Comes Now, Eliseo Rivera, Jr. T.D.C.J. #1617277, hereafter

Applicant in the above styled, and numbered cause, and files this

Rebuttal, and Request pursuant to the Texas Code of Criminal Proce

dure, Article 11.07(3)(d), and the Texas Rules of Appellate Proce
dure, Rules 10.(1)(2); 33.1, and 44.2.

In support of the foregoing Applicant presents the following
Facts:

Initially, when Applicant submitted his Habeas Corpus Art. 11.07

along with Memorandum of Law (Memo.), the trial court upon it's re
view concurred with Applicant that, there did exist issues of fact

that needed to be resolved. Thereafter, the trial court issued it's

"Designation of Controverted, Previously Unresolved Facts Material
to the Legality of Applicant's Confinement"

II.

The trial court upon receiving both trial, and appellate counsels'

Affidavits. Adopted both counsels' answers, and. ruled that both coun

sels' evasive, and erroneous answers satisfied the trial court's
questions. Thereafter, the trial court filed it's Findings of Fact,
and Conclusions of Law, dated March 25,2015.

III.

Applicant contends that after having extensively reviewed the

trial court's Findings of Fact, and Conclusions of Law. It is clear

that, trial court's decisions "resulted in decisions that are based

on an unreasonable determination of the facts in light of the evi

dence presented during trial proceedings", and in Applicant's Art.

11.07, Memorandum of Law. In addition, there are substantial fact

ual questions that persist regarding the validity of Applicant's

conviction in his Art. 11.07, Memo, which have not been resolved.

Therefore, Applicant will address those issues as they appear in

Applicant's Memo.

IV.

In the trial court's Conclusions of Law dated March 25, 2015, #14,

It states as Follows; The State did not engage in Prosecutorial

Misconduct. Applicant contends that the trial court as arrived to

an erroneous conclusion regarding the prosecution's performance during

trial. Applicant does not question the integrity of the trial court.

But, with all due respect, Applicant questions, how can trial court

arrive to the conclusion as it did in #14. If trial court never posed

any questions or requested any information from the prosecution in

regards to the legality of the anonymous 911 recording, the initial

stop of Applicant or Applicant's previous conviction from where trial

court could draw it's conclusions. Therefore, for the aforementioned

reasons Applicant will now demonstrate by clear, and convincing evi

dence that Applicant's conviction is invalid due to the prosecution's
unconstitutional actions in Ground One, Points of Error One, Two, and

Three.

V.

In Applicant's Art. 11.07, Ground One, Applicant alleges Prosecu

torial Misconduct, specifically in Point One, Applicant alleges that

the prosecution enfringed upon Applicant's Constitutional Amend.

Rights when the prosecution failed to show how the anonymous caller's

911 recording to police was admissible to prosecute Applicant with

during trial. Clearly, the 911 recording was the centerpiece of the

State's evidence against Applicant. With that said the prosecution

desperately attempted to proof to the trial court, and the jury how

the 911 tape recording was legally admissible with which to prosecute

Applicant by citing Castillo v. State, cite unknown, as the authori

tative case. But, as this Honorable Court notices the prosecution

failed to provide a cite, which denied Applicant of his right to ex

amine Said case, and verify if it did apply to the situation at hand.

(See Memo. p. 4-9). Therefore, the State failed to provide evidence
of any degree to indicate that the "911 tape recording" was admissible

VI. '

In addition, due to a timely objection by the defense, when the

prosecution introduced the inadmissible "911 tape recording", which

was promptly overruled by the trial court. And, the fact that the

defense filed it's motion for a new trial, which trial court denied

by Operation of Law. This clearly entitled Applicant to an Evident

iary Hearing on the foregoing issue. (TRAP ,. Rules- -33 .1; :44:. 2).. While
on the other hand, Applicant has cited Crawford v. Washington, 124

S.Ct. 1354 (2004); Coy v. Iowa, 108 S.Ct. 2798, 2802 (1988), and

Supreme Court case, Melendez-Diaz v. Mass., 129 S.Ct. 2527 (2009).
Which clearly states that on June 25,2009, the U.S. Supreme Court

expanded the scope of the defendant's constitutional rights by de

claring that a defendant whose conviction is significantly based on

an anonymous caller's recording or other such evidence. This places

the burden on the prosecution to produce the anonymous 911 caller

during trial. So that, Applicant may exercise his Sixth Constitu

tional Amend. Right to cross-examine the caller to expose any flaws.

(See Memo. p. 24-26). Therefore, pursuant to the foregoing the pro
secution's failure to produce such critical witness rendered the 911

tape recording.as inadmissible, which rendered Applicant's convic
tion as void. Applicant has clearly demonstrated that critical

questions of constitutional magnitude remain unresolved. Which re

quires that an Evidentiary Hearing be entertained in order to deter

mine the legality of Applicant's confinement. Moff v. State, 131
S.W.3d 485, 489 (Tex. Crim. App. 2004); United States v. Vasquez,

7F.3d 81, 84 (5th Cir. 1995) .

VII.

In addition, Applicant has clearly demonstrated by the record,

and cited statutes, and State, and Federal case law that Officer

Jimenez's initial stop of Applicant was illegal. (See Memo. p.5-7).
Furthermore, Applicant contends that the prosecution has drastically

failed to prove otherwise. It is established that an anonymous tip

usually will justify the initiation of a police investigation.

Davis v. State, 989 S.W.2d 859, 863 (TexApp.-Austin 1999) citing

Clemens v. State, 605 S.W.2d 567, 570 (Tex. Crim. App. 1980). How
ever, an anonymous tip or telephone call alone rarely will establish

the requisite level of suspicion necessary to justify an investi-
gation detention. Id. 989 S.W.2d at 863; citing Alabama v. White,
496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The
present case is like that in McAfee v. State, 204 S.W.3d 868, 869
(Tex.App.-Corpus Christi 2006), the record reveals that the officer
conducting the initial stop testified that he observed appellant's
vehicle traveling in excess of the posted speed limit. Therefore,
he stopped appellant for speeding. Thereafter, he further testified
that, prior to the stop he knew appellant was suspected of being
involved in an illegal drug transaction just prior to the stop.
During the stop, the officer discovered that appellant had no proof
of insurance for his vehicle. A pat-down of the other occupant re

vealed that the passenger was carrying cocaine that was later ad
mitted at appellant's trial. Unlike the present case, where the
officer conducting the initial stop of Applicant testified that,
when he observed Applicant he knew Applicant was a suspect in a
possible kidnapping of a juvenile. (See Memo. p.5). The officer
further testified that, the sole reason he stopped Applicant was to

"talk to him and check if the allegation was true". (See Memo. p.14)
The officer never testified that Applicant violated any traffic laws
as in McAfee, to give rise to reasonable suspicion for a stop. (See
Memo. p. 13). In fact the officer realized that, the initial alle
gation of kidnapping of a juvenile was false that, he decided to not
even mention it on his "Probable Cause Affidavit", as the reason why

police initially stopped Applicant. (See Memo. p.7; also see State's
Exhibit No. 3, found in RR,V.4of6,p.71,L.4-6, & L.20-22). Furthermore,
in appellate counsel, David Martinez's Affidavit dated February 13,
2015, appellate counsel concurs with Applicant's contention that Appli
cant was initially stopped by police without a legal reason. This, fact

5
is corroborated by appellate counsel, when he declares under penalty

of perjury in his Affidavit that, the reason appellate counsel did

not question the validity of the initial detention (stop), was be
cause, up to that point no offense had been committed. Therefore,

affirming Applicant's contention that, to this point no one has been
able to provide a legal reason why Applicant was initially stopped.

Therefore, Applicant has clearly demonstrated that critical questions

of constitutional magnitude remain unresolved. Which requires that

an Evidentiary Hearing be entertained in order to determine the

legality of Applicant's confinement. T.R.A.P., Rule 33.1; Moff v.
State, Supra; United States v. Vasquez, Supra.

VIII.

In trial counsel, Chris Hesse's Affidavit which was filed on

February 13^2015, he tries to justify police's initial illegal stop
of Applicant by declaring under penalty of perjury that, because the

officer testified that, "about one minute passed between him (offi
cer) , receiving the dispatch and him (officer), locating the suspect
vehicle". (See trial counsel's Affidavit p.3). Applicant contends
that trial counsel is mistaken, Applicant has searched and found no

State Statute or State or Federal case law that authorizes the legal

theory that, once an officer receives a dispatch for an offense.

And, if the officer locates the suspect in a short time this gives

rise to a reasonable suspicion stop, and erroneously cites Gurrola v.

State, 877 S.W.2d 300, 302 (Tex. CRim. App. 1994). Trial counsel's

reliance on Gurrola, to legitimatize the officer's illegal stop of
Applicant is misplaced. Gurrola, states in part; It is settled

law that there must be a "reasonable suspicion", by the detaining

officer that some activity out of the ordinary is occurring or had
is corroborated by appellate counsel, when he declares under penalty

of perjury in his Affidavit that, the reason appellate counsel did

not question the validity of the initial detention (stop), was be
cause, up to that point no offense had been committed. Therefore,

affirming Applicant's contention that, to this point no one has been

able to provide a legal reason why Applicant was initially stopped.

Therefore, Applicant has clearly demonstrated that critical questions

of constitutional magnitude remain unresolved. Which requires that

an Evidentiary Hearing be entertained in order to determine the

legality of Applicant's confinement. T.R.A.P., Rule 33.1; Moff v.

State, Supra; United States v. Vasquez, Supra.

VIII.

In trial counsel, Chris Hesse's Affidavit which was filed on

February 13,2015, he tries to justify police's initial illegal stop

of Applicant by declaring under penalty of perjury that, because the

officer testified that, "about one minute passed between him (offi

cer) , receiving the dispatch and him (officer), locating the suspect
vehicle". (See trial counsel's Affidavit p.3). Applicant contends

that trial counsel is mistaken, Applicant has searched and found no

State Statute or State or Federal case law that authorizes the legal

theory that, once an officer receives a dispatch for an offense.

And, if the officer locates the suspect in a short time this gives

rise to a reasonable suspicion stop, and erroneously cites Gurrola v.

State, 877 S.W.2d 300, 302 (Tex. CRim. App. 1994). Trial counsel's
reliance on Gurrola, to legitimatize the officer's illegal stop of
Applicant is misplaced. Gurrola, states in. part; It is settled

law that there must be a "reasonable suspicion", by the detaining

officer that some activity out of the ordinary is occurring or had
occurred, some suggestion to connect the detained person.with the

unusual activity, and some indication that the activity is related

to the crime. (See trial counsel's Affidavit p.2). In the present

case, the detaining officer testified that when he observed Appli

cant's vehicle, he fallowed it, and regardless to the fact that the

officer did not testify that Applicant violated any traffic laws,

as in McAfee, he still went ahead and made an illegal traffic stop.

Pursuant to the nature of the call, he wanted to check if the call

was true and correct, and for no other reason. (See Memo. p.14).

Unlike in McAfee, even though the officer testified that he knew

that Appellant had just been involved in criminal activity. The

officer testified that the sole reason that gave rise to a "reason
able suspicion", stop was the fact that appellant was speeding.

Which concurs with the principles set in Gurrola, "an activity out

of the ordinary". Clearly, trial counsel failed to justify why the

officer conducted a traffic stop if, Applicant did not violate any

traffic laws. Therefore, a question of constitutional magnitude

remains unresolved which strictly rquires that an Evidentiary

Hearing be entertained.

IX.

While on the other hand, when the trial court ordered appellate

counsel, Mr. David Martinez, in its "Designation of Controverted

Previously Unresolved Facts Material to the Legality of Applicant's
Confinement", to explain why he did not challenge the legality of

Applicant's initial stop? Appellate counsel answered; The reason

that I did not question the legality of Applicant's initial deten
tion was because at the time that the officer observed the suspected

vehicle allegedly involved in the crime. Applicant had committed

7
no offense. (See Appellate counsel's Affidavit p.l). Clearly,

appellate counsel's answer concurs with Applicant's contention that
the detaining officer, Mr. Jimenez, had no legal reason to initially

stop Applicant which rendered Applicant's initial stop as illegal.
Clearly, both trial, and appellate counsels along with the prosecutor

have failed to provide any answers or any evidence to satisfy the

trial court's "Designation of Controverted, Previously Unresolved

Facts Material to the Legality of Applicant's Confinement".
But, regardless to the foregoing facts, trial court indicated

in it's Conclusions of Law, #2 that, Applicant's initial detention

was lawful. Therefore, Applicant has clearly demonstrated that

critical questions of constitutional magnitude remain unresolved.
Which requires that an Evidentiary Hearing be entertained in order

to determine the legality of Applicant's Confinement. T.R.A.P.,
Rule 33.1; Moff v. State, Supra; United States v. Vasquez, Supra.

X.

Applicant will now thoroughly show this Honorable Court how
the prosecution has failed to produce any evidence to contradict

Applicant's contention in Applicant's Art. 11.07, Ground One, Pro
secutorial Misconduct, Point Two: Applicant contends that, he has

demonstrated the six essential elements which comprise P.C. § 38.04

(b)(1) State Jail Felony, Evading Arrest or Detention while using a

vehicle. (See Memo. p. 9-16). Applicant further, contends that he

has proven by clear, and convincing evidence embeded in the record
that the prosecution has drastically failed to prove by any degree
essential element (5). Which dictates that, the prosecution must

prove beyond a reasonable doubt that, the detaining officer's
intention when he initially stopped Applicant was to arrest Applicant
(See Memo. p.9-16); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979); Brook v. State, 323 S.W.2d 893, 894-95

(Tex. Crim. App. 2000); Thacker v. Dretke, 396 F.3d 601, 613 (5th
Cir. 2005). Applicant has meticulously reviewed each essential

element and has proven how the prosecution's evidence in the record
supports all essential elements except for element (5). The detain
ing officer never testified that he intended to arrest Applicant.

Therefore, the prosecution's failure to strictly satisfy essential

element (5), lowered the., prosecution 's burden of proof, which rendered
Applicant's conviction as unconstitutional. (See Memo. p.16).
As this Honorable Court notices even though trial court declares

in it's Conclusions of Law, #14, that the State did not engage in

prosecutorial misconduct. Clearly, by the trial court's Conclusion
in #14, indicates that it refuses to acknowledge the prosecution's
fundamental error. It is established in T.R.A.P., Rule 44.2, Re

versible Error in Criminal Cases that (a) Constitutional Error

occurs; If the appellate record in a criminal case reveals consti

tutional error that is subject to harmless error review, the court

of appeals mus t reverse a judgment of conviction or punishment un

less the court determines beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. Clearly, in

the present case, the record reveals that, even though the State

failed to meet it's burden in element (5), Applicant was still

convicted. Which clearly contradicts the Texas and U.S. Constitu

tions, and the principles set out in In re Winship, and Jackson v.

Virginia,. Therefore, Applicant has clearly demonstrated that
critical questions of constitutional magnitude remain unresolved.
Which requires that an Evidentiary Hearing be entertained in order
to determine the legality of Applicant's Confinement. T.R.A.P.,
Rule 33.1; Moff v. State,; United States v. Vasquez,.

XI.

On Applicant's Art. 11.07, Ground One, Prosecutorial Misconduct,
Point Three, Applicant contends that, the prosecution has purposely
enhanced Applicant's punishment range beyond the statutory legal
limit with Applicant's only prior felony conviction which is not on
the T.P.C. § 12.35 State Jail Felony Punishment list, which only

qualifies certain serious prior felony convictions as legal enhance
ments. (See Memo. p.17-22). In addition, what the face of Indict
ment, Cause No. CR-09E-061A, clearly reveals is that Applicant only
has one prior felony conviction, T.P.C. § 29.02 Robbery, Indictment,
Cause No. CR-83J-125. Furthermore, Applicant will demonstrate how

his adjudication process leads us to T.P.C. § 12.35 State Jail
Felony Punishment which govern enhancements when a vehicle is alleged
to have been used or exhibited as a deadly weapon.

On September 30,2009, Applicant was initially adjudged guilty
by a jury for §38.04(b)(1) Evading arrest or detention while using
a vehicle, a State Jail Felony. Moreover, since a vehicle was in
volved during flight, then the prosecution had the option during
the guilt/innocence stage; to introduce evidence to try and increase
Applicant's punishment range up to a 3rd degree felony. Thereafter,
the prosecution did take it's opportunity to increase Applicant's
punishment by presenting State's Exhibit P.T.-l (police chase video),
and an agrument in support before the jury alleging that Applicant
used or exhibit his vehicle as a deadly weapon. Due to the prosecu
tion's assertion above. This clearly directs us to the language

10
within T.P.C. § 12.35(c)(1) which states in part; An individual ad

judged guilty of a State Jail Felony shall be punished for a third

degree felony if it is shown on the trial of the offense that: (1)
a deadly weapon as defined by Section 1.07, was used or exhibited

during the commission of the offense, or during immediate flight
following the commission of the offense, and that the individual
used or exhibited the deadly weapon or was a party or the offense

and knew that a deadly weapon would be used or exhibited;...(See
Memo. p.18-19). The State presented the deadly weapon (a vehicle),
before the jury as the "special issue", and instructed the jury to
consider that if, it found during the guilt/innocence stage. That
the prosecution proved that Applicant did use or exhibited his ve

hicle as a deadly weapon. Then, the jury would answer "yes", to the
"special issue". Thereafter, the jury did answer "yes", which in
creased Applicant's punishment range to a 3rd degree felony. Which

exposed Applicant to (2) to (10) years in T.D.C.J. Thereafter, the
prosecution attempted to further increase Applicant's punishment
range from (2) to (10), to (2) to (20) years in T.D.C.J, by present
ing Applicant's prior felony conviction, T.P.C. § 29.02 Robbery, as
an enhancement during the punishment phase. (See Memo. p.17).

XII.

Applicant contends that, Applicant's only prior felony convic
tion (§ 29.02 Robbery), is not on the T.P.C. § 12.35(c)(2)(A)(B) list
of serious felony offenses, therefore it did not qaulify to enhance

Applicant's punishment range to a 2nd degree felony. For this
Honorable Court's convenience Applicant will list all the serious

offenses that do qualify for enhancements under T.P.C. § 12.35(c)(2)
(A)(B).

11
Under § 12.35(c)(2)(A)

T.P.C. § 21.02 Continuous Sexual Abuse of Young Child or Children
or C.C.P., Art. 42.12,3g(a)(1) which are the following;
P.C.§ 19.02 Murder
§ 19.03 Capital Murder
§ 21.11(a)(1) Indecency with a Child
§ 20.04 Aggravated Kidnapping
§ 22.021 Aggravated Sexual Assault
§ 29.03 Aggravated Robbery
Health & Safety Code § 481.140 Use of Child in Commission of
Offense

Health & Safety Code § 481.134 Drug-Free Zone (c),(d),(e), or
(f).
P.C.§ 22.011 Sexual Assault
§ 22.04(a)(1) Injury to a Child, Elderly Individual, or Disabled
Individual

§ 43.25 Sexual Performance by a Child
§ 15.03 Criminal Solicitation
§ 43.05 Compelling Prostitutions
§ 20A.02 Trafficking of Persons;
Under §. 12.35(c)(2)(B)

C.C.P., Art. 42.12 Section 3g(a)(2) it states; to a defendant
when it is shown that a deadly weapon as defined in Sec. 1.07
Penal Code, was used or exhibited during the commission of a
felony offense or during immediate flight therefrom, and that
the defendant used or exhibited the deadly weapon or was a party
to the offense and knew that a deadly weapon would be used or
exhibited. On an affirmative finding under this subdivision,
the trial court shall-enter the finding in the judgment of the
court. On an affirmative finding that the deadly weapon was a
firearm, the court shall enter that finding in it's judgment.
Applicant has factually shown that his only prior felony con
viction T.P.C. § 29.02 Robbery, is definitely not among the serious
felony offenses listed above. Clearly, indicating that Applicant's
sentence has been illegally enhanced to a 2nd degree felony.

12
 In addition, Applicant will also like to clarify that T.P.C. §

12.35(c)(2)(B), which directs us to C.C.P., Art. 42.12 Sec. 3g(a)(2).
Also, does not apply to Applicant due to the fact that, the language

in 3g(a)(2), dictates that if Applicant did use or exhibit a deadly

weapon to wit: a tfirearm. Then 3g(a)(2) would apply. But, as it

stands in the present case, the record clearly reveals in the Judg

ment of Conviction by Jury Sheet. (See Attachment Exhibit "C"p.l).

That, when the trial court entered it's affirmative findings on the

deadly weapon issue. The jury and the trial court determined that

a deadly weapon was used, to wit a motor vehicle, not a firearm.

Therefore, § 12.35(c)(2)(B); Art. 42.12, Sec. 3g(a)(2), clearly does

not qualify to enhance Applicant's punishment range. (See Attach
ments, Exhibits "B" & "C"p.l). Applicant has shown by clear, and

convincing evidence embeded in the record, and applicable State

Statutes that Applicant's 2nd degree felony conviction is illegal.

(See Memo. p.17-22). Which is contrary to the trial court's Conclu
sions of Law, #14, where it declares that, the State did not engage

in Prosecutorial Misconduct. Therefore, a question of constitutional

magnitude remains unresolved. Which strictly requires that an

Evidentiary Hearing be entertained.

XIII.

On September 29,2009, Applicant's case was called to a jury

trial (See Memo. p.l). On September 30,2009, during the punishment
phase, Assist. Dist. Atty., Mr. Chris Strowd (prosecution), presented

Applicant's pen packet before the court, and jury containing docu

ments verifying Applicant's prior felony conviction T.P.C. § 29.02

Robbery in an attempt to increase Applicant's maximum punishment

range from (10) years to (20) years in T.D.C.J. (See Memo. p.17-22).

13
 The following is not to undermine the integrity of the Deaf

Smith County District Attorney's Office. But, Applicant being

ignorant to the law conducted a diligent search to gain understand

ing as to how Applicant's prior felony conviction qualified to in

crease Applicant-'s maximum punishment range from (10) to (20) years
in T.D.C.J. At the conclusion of Applicant's research, Applicant

discovered that, Applicant was found guilty of T.P.C. § 38.04(b)(1)

State Jail Felony, Evading arrest or detention while using a vehicle

(See Memo. p.9). Furthermore, during the guilt/innocence phase the
prosecution introduced evidence to prove that while Applicant was in

flight, Applicant did use or exhibit his vehicle as a deadly weapon.

The jury found that Applicant did use or exhibit his vehicle as a

deadly weapon, which increased Applicant's maximum punishment range

to (10) years in T.D.C.J. The way the Texas Legislature inscribed
the langauge in § 38.04, and the fact that Applicant only had one

prior felony conviction. This only leads us to one possible enhance

ment Statute, T.P.C. § 12.35 State Jail Felony Punishment with which

the prosecution may attempt to increase punishment. (See State v.

Brown, No. 06-09-00212-CR (Tex.App.-Texarkana); also Rebuttal to
Counsels' Affidavits, p.5). Moreover, pursuant to the aforemention

ed, Applicant has discovered that, Applicant's prior felony convic

tion T.P.C. § 29.02 Robbery does not fall within the realm of quali

fied serious felony offenses as outlined in § 12.35(c)(2)(A)(B).

(See Section XII). Therefore, according to the langange in § 12.35
(c)(2)(A)(B), and the additional State Statutes that § 12.35 directs
us to go check. It is apparently clear that, the prosecution's

effort to increase Applicant's maximum sentencing range from (10) to

(20) years in T.D.C.J, was invalid. In support of this fact Appli-

14
cant has carefully laid out the entire list of serious felony offen

ses that do qualify to enhance Applicant's sentence. (See Memo. p.
17-22, & Section XII.). Applicant has clearly demonstrated by clear

and convincing evidence embeded in the record along with applicable

State Statutes that, Applicant's prior felony conviction does not

qualify to enhance Applicant's maximum sentencing range. It is

incomprehensible to try and understand how this miscarriage of jus

tice could have been overlooked.

XIV.

The present case is like that in Bobo v. State, 843 S.W.2d 572,

575 (Tex. Crim. App. 1992). Appellant complained that the prosecu

tor purposely used an inadmissible prior felony conviction to il

legally increase Applicant's sentencing range, as the prosecutor has

also resorted to in the present case. In Bobo, the court of appeals

held that the record reflects that Appellant's indictment contained

two enhancement paragraphs. The second paragraph alleged that Appel

lant had previously been convicted of burglary in a California court.

The pen packet contained a conviction certification dated February 24

1989; however, the identifying fingerprints bear a certification date

of April 4,1989. Appellant contended that the prosecutor altered

the pen packet by adding additional documents that did not coincide

with the original documents .

Clearly, the prosecutor tampered with the inadmissible pen pac

ket trying to illegally qualify it as an enhancement. Once Appel

lant brought this egregious miscarriage of justice before the court

of appeals' attention, the court suggested that Appellant should be

afforded a new punishment hearing. The court further sustained

Appellant's point of error, and remanded Appellant's case back to

15
the trial court for a new hearing on punishment only. I_d. Appellant

further complained that, he was stripped of his Sixth U.S. Consti

tutional Amend . Right . to a fair trial due to the prosecutor's mis

conduct. For several years the U.S. Supreme Court, and the Texas

Court of Criminal Appeals have handed down opinions which seriously

hamper the effective investigations, prosecutions, and incarcerations

of criminal. The trend to protect the rights of the accused has

swung so far to the left that we have seemingly forgotten about the

Rights of the victims of crimes. However, it has become increasely

clear that these stringent guidelines are forced upon us when the

State refuses to follow or be bound by the rules . The actions of

the prosecutor in this case, Nancy Conlin must be condemned. Upon

discovering what she had done, the District Attorney of Harris

County notified the court, terminated her employment, and referred

the matter to a Harris County grand jury. By her acts Nancy Conlin

has set herself above the rules. Id.

XV.

Clearly, the present case mirrors Bobo, due to the fact that,

as in Bobo, Applicant has factually demonstrated in his Memo, pages

17-22, & 29-31. And, in Section XII, along with evidence embeded in

the record, and with State Statute, T.P.C. § 12.35(c)(2)(A)(B) State

Jail Felony Punishment. That, Applicant's prior felony conviction

clearly does not fall within the realm of qualified serious offenses

listed in § 12.35(c)(2)(A)(B), to legally enhance a State Jail Felony
But regardless to the fact above, as in Bobo, the prosecutor, Mr.

Chris Strowd set himself above the rules, and in the process has

perpetrated a fraud upon the court, and the jury. When the prose

cutor presented Applicant's inadmissible prior felony conviction

16
during the punishment phase of Applicant's trial. Therefore, pur
suant to the facts above Applicant has proven that, he is entitled
to relief requested in his Memo. Ground One. In the alternative,
if the prosecutor continues to insist that Applicant's only prior
conviction qualifies as a legal enhancement. Then, Applicant humbly
requests that this Honorable Court order the prosecution to clearly
lay out it's claim as Applicant has done so in Section XII. So that,
Applicant may gain an understanding as to how the law applies to
Applicant's prior felony conviction. Applicant has clearly shown
in the foregoing, and in his Memo. p. 4-23. That, the trial court's
factual determinations in it's Conclusions of Law dated March 25,
2015, regarding #14. That, the State did not engage in prosecutorial
misconduct is an erroneous assessment of the facts, which is not
supported by the record as a whole. Cearly, questions of contro

verted, previously unresolved facts material to the legality of
Applicant's confinement remain unresolved. Therefore, pursuant to
the foregoing an Evidentiary Hearing is required pursuant to Habeas
Corpus, Art. 11.07(3)(d); Moff v. State, 131 S.W.3d 485, 489 (Tex.
Crim. App. 2004); United States v. Vasquez, 7 F.3d 81, 84 (5th Cir.
1995).

XVI.

When the trial court ordered trial counsel to explain why he did
not challenge the State's use of Applicant's prior Robbery convic
tion for enhancement purposes. Trial counsel simply replied in his
Affidavit p.4 that, Applicant's prior Robbery conviction was pro
perly proven by the State. The question posed to trial counsel was not

whether Applicant's prior conviction was properly proven. But rather
if, it legally qualified to enhance Applicant's punishment. Appli-

17
cant has factually shown in Section XII, and in his Memo. p.17-22,
that the short answer to that question. Is, "No", it did not legally
qualify to enhance Applicant's punishment. Trial counsel realizing
that Applicant had sufficiently proven his contention correct in a

desperate attempt provided another answer by declaring under penalty
of perjury. That, Applicant's prior conviction did qualify under
T.P.C. § 12.42(a)(3) Penalties for Repeat and Habitual Offenders.
Clearly, trial counsel's answer was intended to mislead the court.

Because, Applicant's current charge T.P.C. § 38.04 State Jail Felony
Evading arrest with a vehicle, is not a subsequent to Applicant's

previous conviction for Robbery. Therefore, Applicant is not a re

peat offender. Furthermore, Applicant only has one prior felony
conviction (§29.02), therefore, Applicant is not a habitual offender.
(See trial counsel's Affidavit p.4), Clearly, trial counsel's an
swers were designed to mislead the trial court. Which, trial counsel

has succeeded as evident by the trial court's answer in it's Con

clusions of Law #4.

XVII.

In addition, when the trial court issued it's "Deignation of
Controverted, Previously Unresolved Facts Material to the Legality

of Applicant's Confinement". Where within, the trial court ordered
Appellate counsel on page 2, to explain why Appellate counsel did

not raise the fact of, the prosecution's using of an inadmissible

prior conviction to illegally enhance Applicant's sentence. In

appellate counsel's affidavit responding to all the designated issues
especially to the inadmissible enhancement. Appellate counsel pur

posely refused to acknowledge the trial court's question regarding
the prosecution's illegal enhancement of Applicant's sentence. It

18
is clear that, appellate counsel does not even want to touch this

issue with a "ten foot pole". Applicant has proven by clear, and
convincing evidence embeded in the record that, both trial, and

appellate counsels have drastically failed to provide any credible

evidence to support their evasive answers regarding the trial court's

questions. Clearly, it is apparent that, the only alternative by
which to resolve the trial court's controverted unresolved facts

that are material to the legality of Applicant's confinement is to

remand this case back to the trial court and order trial court to

entertain an Evidentiary Hearing with live testimony.

XVIII.

In Ground Two, Ineffective Assistance of Counsel (I.A.C.), Appli
cant contends that, had trial counsel conducted even a minimal pre

trial investigation. Trial counsel would have discovered that, the

identity of the anonymous 911 caller was unknown which rendered the

911 recording as inadmissible. (See Memo. p.4-9, & p.23-26).
Furthermore, trial counsel would have discovered that, the enhance

ment paragraph in regards to Applicant's only prior felony convic
tion on the face of Applicant's indictment did not qualify as a
specific type of serious offense that could legally enhance punish

ment on a State Jail Felony conviction under T.P.C. § 12.35(c)(2)(A)

(B). (See Memo. p.17-23, & p.28-32; also see Section XII). In addi
tion, in support of Applicant's contention that, trial counsel was

not prepared for trial. Applicant will show by clear, and convinc

ing evidence enbeded in the record how trial counsel was not familiar

with the enhancement structure for State Jail Felony Punishments

under T.P.C. § 23.35(a)(1)(c)(2)(A)(B) . Applicant's contention above

is sufficiently supported by the record; when trial court asked trial

19
counsel on the record. If, Applicant is found guilty of a State
Jail Felony, T.P.C. § 38.04(b)(1) Evading arrest or detention while
using a vehicle. And if, the jury finds that Applicant did exhibit
his vehicle as a deadly weapon, can that increase Applicant's punish
ment range? Andj trial counsel answered,"No Sir", it cannot incr
ease punishment. And was then promptly corrected on the record by
the State, when the State declared in part, "As the trial court
knows, "Yes", a deadly weapon finding can increase a State Jail
Felony Punishment range to a third degree offense". (See § 12.35(a)
(1); Memo. p.31). The trial court then turned, and asked trial
counsel, "Is that right". Trial counsel then stated, "Okay. I stand
corrected". (See Memo. p.31). Applicant has proven by clear, and
convincing evidence embeded in the record. (See Memo. p.31; § 12.35
(a)(1)) That, on the day of trial, trial counsel was not familiar
with the enhancement structure for State Jail Felony Punishments
§ 12.35(a)(l)(c)(2)(A)(B).

XIX.

Trial counsel acknowledged Applicant's contention above, But in
stead of conceding to the fact that, Applicant's only prior felony
conviction does not qualify under § 12.35, to enhance Applicant's
punishment. And, furthermore, submitting proper legal recommenda
tions that trial court correct Applicant's excessive illegal sen
tence. In the middle of appellate litigation, trial counsel has
changed his legal theory as to how Applicant was legally enhanced
to a 2nd degree felony. Trial counsel now claims under penalty of
perjury that, his new legal theory as to how Applicant's only prior
felony conviction qualifies to legally enhance Applicant to a 2nd
degree felony. Is due to the fact that, Applicant is a T.P.C. §

20
12.42(a)(3) Habitual Offender. (See trial counsel's Affidavit p.4).
Under Texas' habitual offender statute, a defendant convicted of a

felony is subject to a sentence of a second degree felony, punish
ment range (2) to (20) years if (1) he has two prior felony convic
tions, and (2) the conviction for the first prior offense became

final before commission of the second. In addition, Texas law re

quires the State to prove the habitual offender allegation to a

jury beyond a reasonable doubt during the punishment phase of the
trial. Dretke v. Haley, 124 S.Ct. 1847, 1848 (2004). In the pre
sent case, what the record reveals by clear and convincing evidence

embeded in the record is that, the State only presented one pen

packet, (State's Ex.#4), before the jury to try and increase Appli
cant's sentence during the punishment phase. Clearly, the State

failed to present two prior felony convictions as Texas law requires
(See.Memo. p.17-23, & 28-32; also see RR,V.6of6, State's Exhibits
Index, Ex.#4). Moreover, the entire record reveals that, Applicant
only has one prior felony conviction, this is also revealed in
Applicant's indictment, and in the Judgment of Conviction by the
Jury Document. (See attachments Indictment Exhibit "B", & Judgment
of Conviction by the Jury, Exhibit "C"). In trial counsel's desper
ate attempt to justify Applicant's illegal enhancement to a second
degree felony. Trial counsel purposely committed perjury before
the eyes of the court. Furthermore, trial counsel's false state
ments clearly mislead the trial court. This is evident by trial
court's determination in it's Conclusion of Law #4.

Moreover, in trial counsel's Affidavit in answer #3 on page #4,
it reveals that trial counsel is still not familiar as to how prior

felony convictions qualify to enhance State Jail Felony Convictions.

21
 Therefore, Applicant has factually demonstrated in the foregoing
that trial counsel's answers in his Affidavit are completely unreli

able. In addition, according to T.R.A.P., Rule 44.2 when Applicant

directs the court to an exact place in the appellate record or
introduces evidence that reveals "Constitutional Error". Then Appli

cant's case is subject to harmless error review, the court of appeals
must reverse judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contri-
bute to the conviction or punishment. In the present case, Applicant
has sufficiently proven by evidence embeded in the appellate record
along with State Statutes, and State, and Federal case law that,
trial counsel did engage in (I.A.C.). Which clearly violated the
applicable Sections of the Texas, and U.S. Constitutions, and the
principles, set out in In re Winship, Jackson v. Virginia, and Strick
land v. Washington,.

Moreover, Applicant has factually demonstrated that crucial
questions of constitutional magnitude remain unresolved, contrary to
the trial court's findings. Which requires that an Evidentiary Hear
ing be entertained in order to determine the legality of Applicant's
Confinement. T.R.A.P., Rule 33.1; Moff v. State, ; United States v.
Vasquez , .

XX.

Ground Three, Applicant contends that appellate counsel failed to
provide effective assistance during direct appeal. In Point of
Error One, Applicant contends that he has sufficiently proven in his
Memo. p.40-41, & 4-23, that, the "plain errors", Applicant claimed
in Point One remain unresolved. In Ground Three, Point of Error Two,

Applicant contends that, he has sufficiently proven in his Memo. p.

22
23-40, with evidence embeded in the record that, trial counsel was
ineffective, and appellate counsel failed to bring those "plain
errors", to light. (See Memo. p.26-28, & 23-40). In Ground Three,
Point of Error, Three, and Four, Applicant contends that appellate
counsel has purposely failed to meet his appellate obligations to
properly, and timely inform Applicant of his Statutory appellate
options. This fact is sufficiently proven in Applicant's Memo. p.
43-49.

In addition, during the commencement of Applicant's trial a dis

cussion took place between trial counsel, the State, and the tr.ial

court in regards to the unknown identity of the 911 caller. Trial

counsel argued that since the anonymous 911 caller's identity was
never known the recording is inadmissible, and can not used during
trial to prosecute Applicant. To the present day the prosecution
has never claimed that it knew the 911 caller's identity.
Thereafter, Applicant formulated a point of error in regards to
this fact. (See Ground One, Point One,.found in Memo. p.4-7). In
fact, the entire appellate record is completely silent in regards
to the identity of the anonymous 911 caller. But yet, when trial
court ordered appellate counsel to address the trial court's Contro

verted, Previously Unresolved Facts Material to the Legality of

Applicant's Confinement. Appellate counsel declared under penalty
of perjury in his Affidavit that, he had reviewed the appellate re

cord, and had discovered the identity of the 911 caller, Erica Garcia

If appellate counsel's contention is correct, why then did appellate
counsel not submit a copy of the alleged document that supposedly
identifies Erica Garcia as the anonymous 911 caller in support of

his contention? It is obvious that even the trial court is not

23
convinced that Erica Garcia is the anonymous 911 caller. Applicant's

contention is corroborated by the fact that, even the trial court

did not acknowledge appellate counsel's unsubstantiated claim in

it's Findings of Fact and Conclusions of Law. Applicant has fact

ually demonstrated that in appellate counsel's desperate attempt to
qualify the inadmissible 911 tape recording with, which to prosecute

Applicant. Appellate counsel has committed perjury by declaring

such fraudulent statement under oath in his Affidavit. (See Appel

late counsel's Affidavit p.l, B.l).

Furthermore, Applicant has factually demonstrated in the fore
going that appellate counsel's answers in his Affidavit are complete
ly unreliable. In addition, Applicant has factually proven with
evidence embeded in the appellate record that appellate counsel did

engage in I.A.C. Which clearly violated the applicable Sections

of the Texas, and U.S. Constitutions, and the principles set out in

In re Winship, Jackson v. Virginia, and Strickland v. Washington,.

Moreover, Applicant has factually demonstrated in this Rebuttal

in regards to the Trial Court's Findings of Fact and Conclusions of
Law that, crucial questions of constitutional magnitude remain unre

solved contrary to the trial court's determinations. In addition,
Applicant has formulated, and presented before the trial court per
suasive arguments in regards to how Applicant's Constitutional Rights
have been violated, especially Applicant's illegal sentence. It is
well established that a sentence not authorized by law, as we have

in the present case, is void. Fullbright v. State, 818 S.W.2d 808,
'809 (Tex. Cr. App. 1991); Heath v. State, 817 S.W.2d 335, 339 (Tex.
Cr. App. 1991). The Texas Court of Criminal Appeals has held that a
trial court always has authority to correct an illegal sentence.

24
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). In the

present case, Applicant has proven by clear, and convincing evidence

that his sentence is illegal. But yet, the trial court has refused

to perform it's ministerial duty to correct such egregious miscar
riage of justice;

Prayer

Wherefore, All Things Considered, Applicant humbly requests

that this Honorable Court take into consideration the foregoing

Rebuttal, and grant Applicant an Evidentiary Hearing. So that,
Applicant may be afforded a full, and fair fact hearing to develope

material facts in support of Applicant's Grounds, and points of

error in his 11.07. Especially, Applicant's void sentence.

Therefore, based upon the foregoing reasons, Applicant prays

this Honorable Court grant Applicant an Evidentiary Hearing
pursuant to Texas Rules of Appellate Procedure, Rules 33.1; 44.2;

Texas Code of Criminal Procedure, Article 11.07(3) (d) ;' Townsend v.

Sain, 372 U.S. 293, 313, 9 L.Ed.2d 770 (1963); Guidry v. Dretke,

397 F.3d 306, 332-23 (5th Cir. 2005). Furthermore, Applicant prays

for any other relief which this Honorable Court deems justice, and

proper to protect Applicant's State, and Federal Constitutional

Amendment Rights .

Respectfully Submitted,

Eliseo Rivera, Jr. TDCJ

25
 Certificate of Service

I, Eliseo Rivera, Jr. T.D.C.J. #1617277, Applicant hereby

certify that, a true, and correct copy of the foregoing, and

accompanying Motion has been forwarded by U.S. Mail, Postage Pre

paid, First Class to the Attorney for the State at Deaf Smith

County Courthouse, 235 E. 3rd Street, Room 401, Hereford, Texas

79045-5593.

/sy/i^/7 /Tj/lrf/W
Eliseo Rivera, Jr. T #1617277

Inmate Declaration

I, Eliseo Rivera, Jr. T.D.C.J. #1617277, Applicant declare un

der penalty of perjury that the foregoing is true, and correct.

Executed in the Dalhart Unit in Hartley County, Texas on this

the 7th day of May, 2015.

Respectfully Submitted,

^^€^yA^//jA^r/^\ ^n
Eliseo Rivera, Jr. TDCJ/#1617277
Dalhart Unit

11950 Fm. 998

Dalhart, Texas 79022

26
 Trial Cause No. CR-09E-061
AE£^Uate_No^_07_-09-00 332-CR
Ex Parte
In the Texas Court of
Eliseo Rivera, Jr
^ Criminal Appeals
§ Austin, Texas
Motion Requesting this Honorable Court to Order the
Texas Rangers to Conduct a Criminal In.IV estigation

To the Honorable Justice(s) of Said Court-
Comes Now, Eliseo Rivera, Jr. T.D.C.J. #16172 77 hereinafter
T^r^
this Motion Pr° Se' ^ t--thSt ab°Ver, ,Styled' and "umbered cause
Dursnant- dUse' and fil
and files
10.1(a)(1). RUl6S °f APP<^" Procedure, Rule
Moreover, Applicant contends that the Attorney for the State
::;' nr -a f— — „hen, thye stat::\
o y ad knowlngly introduced Applicant's prior felony con-
a 3Ilo "? did "^ qUali£y t0 enhan" APP"«nt's charge,
t.p. . 8 >;b;;ing rrTor Detention uhile — - - ^
(Memo.) pages 17-'n ., >. '(B) (20°4)'