Case Information
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In the Court of Criminal Appeals Austin
From: Charles LaymonLox, pro se Bill Clements Unit 9601 Spur 591 Amarillo, Tx. 79107 To : Abel Acosta, Clerk RE: WR-78.951-03
July 29, 2015 RECEIVED IN COURT OF CRIMINAL APPEALS AUG 042015 Abel Acosta, Clerk
To the Honorable Clerk of the Court: Comestow Charles Laymon Cox pro se, and asks the Clerk to file this document into the Court of Criminal Appeals Record and place in the file corresponding with the attached trial court order before the Honorable Court of Criminal Appeals. His Memorandum Controverting States Proposed Findings In Support and Summary Conclusions of Appellants Art. II. 07 Habeas Corpus. Ordered by the trial Court Criminal Magistrate Charles P. Reynolds.
Charles LaymonLox would further request the Honorable Clerk to please file stamp and copy clerks' cover letter and return copy in the self addressed stamped envelope provided for this purpose.
Thankyou for your assistance. Respectfully Chanker &;.Lox
One other issue please: Appellant request that Rule 9.3 (e) be applied in that only the Driainal need be filled, and that this document be classilied as Original.
Thankyou.
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WR-78.951-03
In the Lourt of Criminal Appeals Austin Texas
RECEIVED IN COURT OF CRIMINAL APPEALS
Supplemental Attachment to Appellants' Memorandums Ordered by Trial Court
AUG 042815 AbelAcosta, Clerk
Herein is Appellants' Memorandum Controverting States Exposed Findings, submitted on June 9, 2014 in the 213th Judicial District Court, Tarrant County. And swears on penalty of perjury is a true and correct hand drawn copy. The trial Court Order closing Evidence in IS Days dated May 27, 2014, signed by Criminal Magistrate Charles P. Reynolds, ordered that any additional evidence proposed findings or memoranda be submitted within IS Days. see exhibit (X) attached. The trial Court Clerk having failed to transmit Appellants answer in response has left Charles Laymon Cox prejudiced before the Court of Criminal Appeals, having timely filed his response on June 9, 2014 in the 213th Judicial District Court. Therefore Appellant now submitss Bllis Supplemental Attachment to complete the Record. Signed July 29,2015 Charles P. Cox Respectfully Submitted Charles L. Cox Clements Unit 9601 Sour 591 Amarillo, Tx. 79107
*3 No. C-213-009413-0647447-A
In the 213th Judicial District Court of Charles Laymon Cox
In the 213th Judicial District Court of Tarrant County, Tex.
Memorandum Controverting State's Proposed Findings In Support and Summary Conclusions of Appellant's Art. II. 07 Habeas Corpus
Appellant brings forth the following memorandum in opposition controverting States Findings and Conclusions regarding Appellant's Unit of Habeas Corpus.
Appellant would make clear: That there are (11) Eleven Grounds in his Unit that have been presented to the Court. He has requested a list of his Amendments and Motions in support of his original (B) Grounds from the Clerk of the Court, that have been filed into the Record. To this date after several attempts to retain the information, the Clerk has refused to answer his requests.
Ground Four: Prosecutorial Miscondut and Subornation of Regiary has been Amended. (June 10, 2013) Ground Nine: Judicial Abuse of Discretion by Excess of Jurisdiction and Failure to Recuse; Amendment (August 14, 2012) Ground Ten: No Evidence; Amendment (August 14, 2013) Ground Eleven: Trial Court Failed Jurisdiction by Illegal Indictment (April 16, 2014)
Memorandum
General Facts Proposed Findings 1-7pp. 3 Rebuttal Tex. Code Crim. Proc. Art. 42.128 (5)(a) Deferred Adjudication Community Supervision Probation is not an Unadjudicated Judgment, nor does Appellant's plea or Admonishment impugne he has been found guilty.
*4 A plea to Deferred Adjudieation is not a Judicial Confession. see Donovan v. State 68 S.W.3d.633.636 (Tex.Crim.Ago.2002)' The Court of Criminal Agoeals rejected the argument that a finding that the evidence substantiates a defendant's guilt in a deferred adjudication of guilt.
Hurley v. State 130 S.W. 3d. (Tex. Crim. Ago. 2004) Id at 506 (33.141 Moreover, although, the Court of Criminal Agoeals has recognized amendments to article 42.08 were clearly designed to broaden the trial court's ability to stack sentences, Pettigrew 48 S.W. 3d. 769.772 (Tex. Crim. Ago. 2001), that discretion arises once a sentence has been imposed or suspended in two or more cases. In a deferred adjudication order sentence is neither imposed or suspended, see Donovan 68 S.W.3d.ot636. Thus the statute as written gives the court discretion to fashion an individualized plan, but does not grant discretion to stack a deferred adjudication order into prison time.
Therefore the illegalyjoindered revocation hearing and trial, could not grant the Court discretion to sentence Appellant to prison from a revocation of deferred adjudication order, without a formal adjucation of the Indictment. see State's Proposed Findings exhibit (8).
A Motion to Proceed to Adjudication is a ministerial instrument and does not infer properprocedure was followed.
Appellants' writ clearly proves the State proceeded to an illegaly joindered Hybrid Trial.
Appellant was unprepared to make any knowingly or intelligent decisions or pleas. His Court Appointed Counsel failed or intentionally did not advise him of the consequences of an illegaly joindered Hybrid Trial of Revocation Hearing and Trial at the single proceeding.
Appellants' appeal was based on his trial Counsels strategy of hearsay testimony allowed at trial. However Appellants' writ clearly exposes the unrestrained violations of fundamentalConstitutional rights allowed by his Court Appointed Counsel.
*5 Prosecutorial Misconduct Proposed Findings 8-14 09.3.4 Rebuttal Ground One of AppellantéWrit claims Denial of Due Course of Law, The State's attempted ple-bargain to a conviction approximately (30) days prior to trial, proves the State and Court were aware of Appellants Constitutional Due Course of Law / Due Process rights.
The Court Record of testimony, of Probation Revocation brought in a Court convened for a trial to adjudicate the Indictment (0647447-D) is an Hlegaly joindered Hybrid Trial.
Tex. Code Crim. Proc. Art. 42.128 (5)(b)..., "the defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge."
This statute clearly explains the legislative intent by it's express limitation on the court, where a hearing is limited to what can be heard in the proceeding, also limits its consequences.
The Judgment Adjudicating Guilt on October 4, 2007 states: "On this day, set forth above, this cause again cameon for trial"... And the Court having heard evidence limited to whether the Court should proceed to an adjudication of guilt under the original charge and having determined that the Court should proceed to such a determination, finds the defendant guilty."
A Motion to Proceed does not allow Prosecutorial Misconduct and Abuse of Discretion by the State and Court, to present at trial a Revocation Hearing used as evidence to whether it finds the defendant guilty, is a fundamental violation of article 42.128 (5)(b) [8] express limitation on the Court against Constitutional violations of Due Course of Law.
The State fails to disprove Denial of Due Course of Law. Subject Matter / Constitutional Jurisdiction Proposed Findings 15-26094.5 Rebuttal
An Indietment does not guarantee the actions of the State and Court have met the legal requirements of law or procedure.
*6 The Court Record of Testimony and exhibits prove the evidence plled at trial were probation violations. The State admits it brought this evidence to trial. The Summary of the Courts Judgment clearly state the evidence used to determine guilt was limited to Probation Violations. see State's Proposed Findiag exhibits (A), (E, pgs 1-7), see also Judgment Adjudicating Guilt stating: "On this day, set forth above, this cause again came on for trial."
The Judgment Adjudicating Guilt states three paragraphs found by the Court of Probation Violations. The Judgment Adjudicating Guilt states 'None' of the three Courts of Indictmenttobe found (0647497-0). The Judgment does state the Defendant was punished for Count One. Thereby proof that:(1) Subject Matter at trialwas Probation Violations and (2) Constitutional requirement of a trial by Indictment had not been met.
Trejo v. State 280 S.W.3d. 264 (Tex.Crim.Ago. 2009) Subject Matter Jurisdiction is offense specific because it is about what type of offense can be tried by the court. Subject matterjurisdiction depends not only on the grant of authority to the trial court in the constitution and the statutes, but also on its being invoked for the particular case before the court by the State's pleadings." "But personal jurisdiction is person specific. It determines whether a court can exercise power over a particular defendant may nevertheless lack authority to try that defendant for offenses not covered by an indictment."(opinion JusticeWomack concurred by Justices Keller, Meyers and Johnson)
Nix v. State 65 S.W. 3d. 664 (Tex.Crim.Ago. 2001) [4.5] a judgment is void only in very rare situations, usually due to lack of jurisdiction. In Civil Cases, a judgment is void only when there is' no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter a particular judgment, or no capacity to act as a court."
*7 Therefore the Court on October 4, 2007, failed to adjudicate the Subject Matter of the Indictment. Without an adjudication of Indictment, the Court did not reach Constitutional Jurisdiction of Indictments Authority, or its jurisdiction.
Tex. CodeCrim. Proc. Art. I. 13 ... plea of guilt alone does not authorize a conviction.
Appellants plea was coerced, Appellant was unprepared to make any knowingly or intelligent decisions or pleas. His Counsel having failed to advise him of the consequences he faced in the illegaly joindered Hybrid Trial, where the U.S.C. 6th Amendment right to know what he had to defend was denied.
The State fails to disporove Appellants' Subject Matter or Constitutional Authority of Indictments Jurisdiction. Pesjury Proposed Findings 27-43,09, 5.6 Rebuttal The testimony pursued by the State acknowledges the evidence of Probation Revocation Testimony at trial' where judgment of guilt was adjudicated.
The State incorrectly claims Appellant impugned Mis Smiths occupation. It does not apply to the assertions, that her testimony was misleading. Where Mis Smith stated "she was the probation officer assigned to the Court in which defendants case was heard"(RR. Vol. I, p.6, lines 21-24) Thereby impugning an adjudication of evidence.
Appellants' Ground Four, 09, 1 in his Facts Supporting, states in the amended ground, that he withdraws any statements to the authenticity of the Probation Record, as he was unable to prove them at the time. Therefore pursuant to Tex. Penal Code 837.05 Retraction, his statements are moot and he reduced the claim of pesjury to the Court Record of Testimony.
The State's Proposed Finding exhibit (F) clearly shows Marie Mollett' was' affiliated with Counseling Institute of Texas in 1998, and her statement that she was' executive director in 1998, does not alter the fact of Suborned Pesjury.
*8 The State presented an 'imposter' witness at Appellants' trial, before the public with implied knowledge of the defendant she did not possess. Where at trial the Prosecutor asked Mis Smith if Marie Mollett was the sex offender treatment provider, implied by the Probation file of the defendant, and she replied that Marie Mollett was the person asked about" (RR. Vol. I, p. 14. lines 9-20). This was perjury and the Prosecutor knew it was perjury and the testimony was harmful. Mis Smith went on to make many statements to have been said by Marie Mollett.
On Cross, Marie Mollett was asked if she was the one who met with the defendant in 1998, she stated: "She was not the one who met with the defendant" and she admitted, "she was not the defendants treatment provider." (RR.Vol.1, p. 73, line 13). Therefore she did not have the implied personal knowledge of her testimony, it was suborned by the Prosecutor. She was an 'imposter' witness, Mis Smith knew it. Mis Jack knew it and Marie Mollett admitted it.
Whether Marie Mollett was an executive director in 1998 or a probation officer in 2007 is irrelevent. The State presented her before the public as Appellants' treatment provider with personal knowledge she did not possess, is perjury. And as such the States testimony of Sally Smith and Marie Mollett is uncredible fabricated perjury.
The State fails to disprove perjury. Factual and Legal Sufficiency Proposed Findings 94-99,09. 7, Re buttal Legal Sufficiency of evidence is dependant upon the jurisdiction of the Subject Matter. see Trejo v State 280SW.3d.(Tex.Clim.Aga2009) "Subject Matter jurisdiction is offense specific... (it depends not only on the grant of authority to the trial court in the constitution and the statutes, but on its being invoked before the court by the State's pleadings.
The State brought on a trial of the Indictment (0647447-0), and pled Probation violations as evidence, see State Proposed Finding exhibit (A), (Eggs 1-7) also see Judgment Adjudicating Guilt and Court Record of Testimony.
*9 A variance of evidence to the Indictment is a variance of the Legal Sufficiency of the subjectmatter. see Byrd v. State (2010 Tex. App. Lexis 2891) "Under State Law Sufficiency standards, a claim of legal sufficiency is viewed as a variance issue where evidence is different or varies from the charging instrument. A variance occurs when there is a discrepancy between the allegations of the charging instrument and the proof of trial.
The State on October 4, 2007 pled Probation Violations and not the Indictment.
The State's claim that a guilty pleb is "some"evidence to support a conviction. Ex Parte Williams 703 S.W.2d.674.683 (Tex.Cim. App. 1986), does not outweigh legislated State Law of Tex.Lode.Crim.Proc. Art. guilty plea alone does not authorize a conviction." Wherby the States pleadings of perfured revocation testimony, "No Legal Evidence was produced by the State to the Indictment. Tex. Penal Code 82.01 States Burden, was not met.
Perales v. State 215 S.W. 3d.418,420 (Tex.Crim.Ago. 2007) [2/4]...[A] claim of no evidence is cognizable because" Where there has been no evidence to base conviction" a violation of due process has occurred... (even if the has pled guilty) Art.1.13, Ex ParteColeman 599 S.W. 2d.305.307(Tex. Lrim. App. 1978) "If the record is devoid of evidentiary support for a conviction, an evidentiary challenge is cognizable" ... see Ex Parte Brown 757 S.W. 2 d . 367, 368-69 (Tex.Cim. App. 1988) Ex Parte Williams 703 S.W. 2d. 274, 279-80 (Tex. Cim. App. 1986)
The State fails to disprove Legal Sufficiency. Ineffective Assistance of Trial Counsel Proposed Findings 50-58,09.7.8 Rebuttal The adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of advocate. Anders v. California 386 U.S.738.743 S.Ct.1396.18 L.Cd.2d. 493 (1967).
A Probation Revocation brought in to a court convened for trial to adjudicate the Indictment, is an Illegaly joindered Hybrid Trial. To revoke probation
*10 and use as evidence to adjudicate Indictment is a fundamental denial of Constitutional rights to Due Course of Law / Due Process.
Manifestly, a prima facia claim that the illegaly joindered Hybrid Trial could not have happend without cooperation from Appellants Counsel, is clear and evident proof of Ineffective Assistance.
Mr. Rosteet did allow the State and Court unrestrained violations of Appellants' Constitutional rights, cannot be construed as reasonobletrial strategy or harmless.
An Indictment does not guarantee the actions of the State and Court have met the legislated requirements of Due Course of Law.
Appellant was unprepared to make any knowingly or intelligent decisions or plea, His Counsel having failed to advise him of the consequences he faced in the illegaly joindered Hybrid Trial, where his U.S.C. 6th Amendment right to know what he had to defend at trial was denied.
Legal Sufficiency of evidence is dependant upon the Jurisdiction of the Subject Matter. A variance of the evidence to the Indictment is a variance of the Legal Sufficiency of the Subject Matter.
Pecjury is defined in Tex. Penal Code 837.02 and 37.03, Appellant has proved pejury.
The State fails to disprove claim. Ineffective Assistance of Appellate Counsel Proposed Findings 59-64,09.8 Rebuttal
The States' abject denial of Ineffective Assistance of Appellate Counsel is an attack on Appellants' right to colsterally attack his appeal.
Though Mr. Walker did bill the State as per States Proposed Findings exhibit (C), it does not agoly to Appellants claim that his Appellate Counsel had knowledge the appeal was frivolous.
Bone v. State 77 S.W. 3d.828.833 (Tex. Crim. App. 2002) stating that, (Winder normal circumstances,
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the record on direct appeal will not be sufficient to show counsel's representation was so lacking in tactical strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional.
Ex Parte Mailor 199 S.W.3d. 125 (Tex.Crim. App. 2004) III. Claims of ineffective assistance of counsel are frequently raised on direct appeal without the benifit of adequate record and then re urged on a writ of habeas corpus after they have been adequately developed in a post conviction evidentiary hearing.
Appellant has requested an evidentiary hearing. see Cumulative Traverse, dated September 20, 2011
Prayer
Premise Considered, Charles Laymon Cox prays that the Court finds his cause worthy and Recomends Relief.
Respectfully Submitted Charles
T.O.E.S.No. 1463721 Clements Unit 9601 Sour 591 Amarillo,Te. 79107
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Inmates Declaration
I, Charles Laymon Cox, do swear under penalty of perjury that the statements made in this Memorandum are trueand correct. Signed on this day June 9,2014
Charles I. cox
Certificate of Service
I certify that this document was placed into the possession of the T.O.C.J. Mail Room at the Bill Clements Unit Potter County, Amarillo, Tx, on June 9,2014. Therefore is considered served.
Charles I. cox
Certificate of Compliance
I certify that the number of words in this Memorandum Controverting State's Proposed Findings is approximately 2500 words
Charles I. cox
*13 EX PARTE
CHARLES LAYMAN COX
FILED THOMAS A WILDER, DIST. CLERK TARRANT COUNTY, TEXAS
MAY 27 2014
| | | | | | :--: | :--: | :--: | :--: | | | | | | | | | TIME | 10:33 | | | | BY | DEPUTY | | | | | | | | | | | | | | | TARRANT COUNTY, TEXAS |
ORDER CLOSING EVIDENCE IN 15 DAYS The Court has before it Applicant's Application for Writ of Habeas Corpus, filed under Article 11.07 of the Texas Code of Criminal Procedure.
IT IS ORDERED that any additional evidence, proposed findings or memoranda be submitted to the Court within fifteen days of the date of this order, unless an extension has been granted to the parties.
Thereafter, the Court will consider the record closed and will proceed to a decision in this matter.
The Clerk of the Court is ORDERED to send a copy of this order to the Applicant at his current known address and to the Appellate Section of the Tarrant County District Attorney's Office.
SIGNED AND ENTERED this 2014.
CHARLES P. REYNOLDS CRIMINAL MAGISTRATE TARRANT COUNTY, TEXAS