Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 11/25/2015 ABEL ACOSTA, CLERK *1 WR-61,441-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 11/24/2015 5:03:10 PM Accepted 11/25/2015 8:17:55 AM ABEL ACOSTA NO. 2001-CR-4920-W2 CLERK (TEXAS COURT OF CRIMINAL APPEALS NO. 61,441-02) EX PARTE § IN THE DISTRICT COURT
§
§ 144TH JUDICIAL DISTRICT §
RICHARD ANTHONY, JR. § BEXAR COUNTY, TEXAS
OBJECTION TO DISTRICT COURT’S ORDER AND REQUEST TO SET THIS CASE TO BE HEARD BY THE TEXAS COURT OF CRIMINAL APPEALS
Now comes Applicant Richard Anthony, Jr., by and through counsel, and files
this Objection to the District Court’s Order and Request to Set this Case to be Heard
by the Texas Court of Criminal Appeals. As good cause in support thereof, Applicant
Richard Anthony, Jr. (sometimes referred to as “Mr. Anthony” or “Applicant”) would
respectfully show unto the Court as follows:
I. The District Court’s Description of Mr. Anthony’s Argument is Incorrect Which in Turn Led the Court to Incorrectly Recommend Dismissal
The District Court’s description of Mr. Anthony’s argument in this subsequent
writ is incorrect. The incorrect statement is the reason the District Court recommends
a dismissal. Respectfully, if the Court had applied the facts to the law as it concerns
Mr. Anthony’s argument, the Court would have had hearing and/or ruled for Mr.
Anthony.
II.
Application
The District Court stated in the Order: “The Court finds that Applicant’s
allegations in this writ application have been presented in his previously filed writ
application.” (Order, page 2). Hence, the Court dismissed the writ because article
11.07 § 4(a)(1) of the Texas Code of Criminal Procedure provides that claims brought
in a subsequent writ are forbidden if they have been presented in a previous writ. Id.
(citing Tex. Code Crim. Pro. Ann. art. 11.07 § 4(a)(1) (West 2012)). Respectfully,
the District Court’s conclusion is without merit because, as argued in this writ, Mr.
Anthony argues he has received ineffective assistance of counsel in the plea bargain
process, which included an offer of thirty to thirty-five years’ imprisonment, as
opposed to the fifty-year term he received after proceeding to trial without the
knowledge that the plea offer had been made. (Memorandum in Support of Writ,
pages 35-41).
This is not what was alleged in Mr. Anthony’s first writ. As the District Court
itself recognized in its Order: “Applicant previously argued [in his first writ] he
received ineffective assistance of counsel based on counsel’s presentation of a theory
of self-defense which was not viable as a matter of law.” (Order, page 2). Indeed,
there is no mention in the first writ of any possible claim based on ineffective
assistance during the plea bargain process. In fact, as discussed in the subsequent
writ, this argument could not have been made in the first writ because ineffective
assistance of counsel during the plea bargaining process is new law which has only
recently been approved by the United States Supreme Court. (Memorandum in
Support of Writ, generally). In other words, the plea bargain claim is only in the
second writ and no such argument, or reference thereto, either express or implied, was
made in the first filing. Therefore, the District Court’s dismissal, or dismissal
recommendation, is incorrect and this Court should rule accordingly.
WHEREFORE PREMISES CONSIDERED, Applicant Richard Anthony, Jr.
respectfully files these objections to the Order of the District Court and requests that
this case be placed on the docket of this Court to be heard. Mr. Anthony also
respectfully requests that he be awarded any other such relief to which he is entitled
under the law and in equity.
Respectfully submitted, /s/ James Scott Sullivan James Scott Sullivan L AW O FFICES OF J. S COTT S ULLIVAN 22211 I.H. 10 West, Suite 1260 San Antonio, Texas 78257 Telephone: (210) 227-6000 Facsimile: (210) 399-4854 Counsel for Applicant, Richard Anthony, Jr.
CERTIFICATE OF SERVICE I hereby certify that on this 25th day of November, 2015, a true and correct
copy of the foregoing instrument was hand delivered to the Bexar County District
Attorney’s Office.
/s/ James Scott Sullivan James Scott Sullivan