Rivera, Eliseo Jr.
WR-83,087-01
| Tex. App. | May 12, 2015Background
- Applicant Eliseo Rivera, Jr., convicted of State Jail Felony evading arrest while using a vehicle (Tex. Penal Code § 38.04(b)(1)), filed an Art. 11.07 habeas application challenging his conviction and sentence.
- Central trial evidence was an anonymous 911 call recording; defense objected at trial and later moved for new trial after the recording was admitted over objection.
- Officer Jimenez stopped Rivera after a dispatch; Rivera contends the stop lacked reasonable suspicion and was therefore unlawful.
- During guilt/innocence the jury found Rivera used his vehicle as a deadly weapon, which increased the punishment range under Tex. Penal Code § 12.35; at punishment the State introduced a prior robbery conviction to further enhance punishment to a second-degree range.
- Rivera argues the anonymous 911 tape was inadmissible because the caller was not produced for cross-examination, the initial stop was illegal, trial counsel and appellate counsel provided ineffective assistance, and the prior robbery conviction did not qualify to enhance punishment under § 12.35.
- Rivera seeks an evidentiary hearing, correction of an allegedly illegal sentence, and asks the Court to order a criminal investigation into prosecutorial misconduct regarding the enhancement.
Issues
| Issue | Plaintiff's Argument (Rivera) | Defendant's Argument (State/Trial Court) | Held |
|---|---|---|---|
| Admissibility of anonymous 911 recording | The 911 tape was testimonial; the anonymous caller was not produced for cross-examination, violating the Sixth Amendment (Crawford/Melendez‑Diaz principles). | State relied on Castillo authority at trial to admit tape; trial court overruled defense objection and treated admissibility as proper. | Trial court concluded State did not engage in prosecutorial misconduct and did not find unresolved facts requiring hearing. Rivera requests further evidentiary hearing. |
| Lawfulness of initial stop | Officer lacked reasonable suspicion; stop was to check an unverified allegation and not based on observed traffic violation. | Trial court concluded the detention was lawful; counsel affidavits were accepted as resolving the designated factual disputes. | Rivera contends material factual questions remain; trial court found detention lawful. Rivera seeks evidentiary hearing to resolve conflict. |
| Enhancement using prior robbery conviction | Prior robbery conviction (Tex. Penal Code § 29.02) does not fall within the list of qualifying offenses under § 12.35(c)(2)(A)/(B); use of that conviction to raise punishment to second-degree felony was improper and rendered sentence illegal. | Prosecutor presented the pen packet at punishment; court and jury accepted enhancement. Counsel later gave inconsistent/erroneous explanations for enhancement basis. | Rivera argues sentence is void and requests correction/new punishment hearing. Trial court accepted counsel affidavits and concluded no prosecutorial misconduct, but Rivera disputes that factual finding. |
| Ineffective assistance of counsel on trial and appeal | Trial counsel failed to investigate caller identity, challenge inadmissible evidence, and was unfamiliar with § 12.35 enhancement structure; appellate counsel failed to raise plain errors and allegedly made false affidavit statements about the caller and record. | Trial and appellate counsel submitted affidavits asserting reasons for their conduct; trial court adopted their answers and denied relief. | Rivera alleges Strickland violations and requests an evidentiary hearing; trial court found counsel affidavits sufficient, but Rivera maintains unresolved constitutional questions remain. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements require opportunity for cross‑examination to satisfy Sixth Amendment)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (certificates of forensic analyses are testimonial and may require live testimony)
- In re Winship, 397 U.S. 358 (1970) (prosecution must prove every element beyond a reasonable doubt)
- Jackson v. Virginia, 443 U.S. 307 (1979) (insufficiency of the evidence standard for overturning conviction)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)
- Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) (evidentiary hearing required where controverted, previously unresolved facts material to confinement exist)
- United States v. Vasquez, 7 F.3d 81 (5th Cir. 1993) (evidentiary‑hearing principles on contested factual issues)
- Bobo v. State, 843 S.W.2d 572 (Tex. Crim. App. 1992) (prosecutorial use of an inadmissible prior conviction to enhance punishment can warrant new punishment hearing)