Case Information
*1
IssUES Resented
1.) The state failed to Rove beYond a reasonable doubt that the said weefon used in the commission of said offense was a dead 14 weefon. 2.) The state failed to Prove Intent. 3.) The state failed to Prove a Threat had been made, beYond a reasonable doubt. 4.) The state failed To Rove a threat with intent For imminent badil4 insure. 5.) The state failed to Prove an assault was committed. 6.) The evidence is legal14 insufficient To suflort the conviction. 7.) Denial of due Process under the sixth and Fourteenth Amendment: 8.) The evidence is Factuall4 insufficient To suflort conviction. 9.) Prosecutional mis conduct. 10) Ineffective assistance of counsel. 11.) Inconsistent and contradicting Testimoni of state's wifnesses.
*2 STATEMENT OF CASE
Affillant, KIRT Allien Esthat, was changed with AGGRAVATED ASSAULT with a DEADLY WEATHS a 2nd degree FELONY, for an otherwise alleged to have occurred on August 24, 2013. The indictment (CRP7) also contained an Enhancement ParagraPhs, therefore raising the possible Punishment of 25 to 99 Years of life. The case was tried before a July beginning February 17, 2014. The Just returned a verdict of guilty on February 18, 2014. The Affillant filed true to both chancements and the Affillant was sentenced to Twenty Five (25) Years in The Texas Defartment of Criminal Justice Institutional Division by the Court. The Court also found that the Defendant used or exhibited a deadly weapon. (Judgement CRP 101.)
*3 STATEMENT OF THE EVIDENCE ON August 24, 2013 the Eola Voluntary Fire DefarTment held a traf shoot to raise funds for their defartment. The state called sTACE Dorotik who was the disfatcher for the fire defartment. She testified that at some Point during the dq4 the Affellant, Kirt Allen Esthal, had showed that he reeked of Alcohol. Affellant was said to have been causing trouble, bauthering ReoPle Partici Rating. Mrs Dorotik claims Affellant had been tring To Talk with her (3RR 27; 10-11) Mrs Dorotik testified she tad told Affellant to leave her alone and to leave. State Asked Mrs Dorotik if the Person she had Just described was in court Toda4, Mrs Dorotik was unable to Identify Affellant, antill state lead her there (3RR 28; 15-25) (3RR 29; 2-14) Defense did not abject. Mrs Dorotik testified that she leaned her Phone To some one so that thet could call the Police For her. She claimed it was close to dark and they were tearing everything down. Mr Dorotik testified that this all haffened about 8:00 am maybe 9:00 am and Affellant was still there of Andste had it Known what haffened when Affellant wasit there anylenger. (3RR 35; 7-18)
*4
STATEMENT OF The EVIDENCE
ON AUGUST 24, 2013 the Cola Volunter Fire DefarTment held a traP sheet to raise Funds For Their defarTment. Mrs Dorotik testifying For the state Mrs Staci Dorotik was the disPatcher for Fire defarTment. She testified that at some PainT during the dat the affellant, Kirt Allen Esthat, had showed and he reeked of alcohol. Affellant was said to have been causing trouble, bauthering ReoPle Refialfing. Mrs Dorotik claimed affellant had been trying to talk with her. (3RR 27; 10-11:) Mrs Dorotik testified she had told affellant to to leave her along and to leave the event. State asked Mrs Dorotik if the Person she had Just described was in court todat. Mrs Dorotik was unable to Identif 4 affellant, ontill stated Lead her (3RR 28;15-25:) (and, 3RR 29; 2-14:) Mrs Dorotik had loaned her Thone to some one so that thet could call the law for her. She claimed it was close to dark when this took Place 8:00 or 9:00. Thet were tearing everything down. Mrs Dorotik testified that this all haffened close to dark but she did not know what had haffened when affellant wasint there any longer. (3RR 35;7-18:)
*5 Mrs. Staci Dorotik Testified That she didn't Know where affellant went when he wasn't there any longer. (3RR35;16-18:) Mr. Torres testified That he didn't see another deftity of at The Trap shoot he saw a Police car. (1RR32; 24-25:) Officer said The club or stick that mr Cervantes had was not part of the evidence. 3RR116;11-21 Officer admit's that she never looked for the stick, or club (3RR117;15-17)(3RPI17;21-23) Officer Maritz Testified she had not siep any where before getting to the Affellant, not even The hunals house. (3RR119;16-21:) Officer Testified That she searched the immediate area. And now she searched Mr Cervantes Front Yard. (3RR118;3)(3RR118;8) Officer Maritz earlier testimon't officer said, Admits she didn't go to the crime scene after the arrest (3RR117;22-23) Officer Maritz testified she had not stoffed any where before get to the Affellant(3RR119;16-21) Office admits she didn't have the fact that mr Cervantes a club in her refert.
3RR121;19: Officer Maritz admits she did not take there statements, But she had been told about it and. she had read it. (3RR115;12-25) (3RR116;1-3:)
*6 DeRit4 GeorGina Maritz Testifying For the state. DeRit4 Maritz testified that she had been disPatched around and arrived around and had Placed Affellant in handcuffs and sat him on the ground, Officer Maritz then talked to Staci Dorotik, while affellant was hand-cuffed and sitting on the ground. (3RR 92;14-19:) (3RR119;1-3:)(3RR96;1-2:) (3RR108;17-25:) Mr Michael Cervantes testified it all happened at (3RR 57;10-12:) Mr Guadalufe Luna testified that everything haffened 4:00Rm 4:30Rm(3RR 83;16-21:) Direct examination, State calls Michael carvantes Voluntaril4 testified about Prior criminal record Therefore leaving a false impression with Sur4. (3RR 39;7-21:)
*7 STATES witness Mr Cervantes Testified That he Looked in the back of his truck and gets a coufle of stakes out. Affellant can only think of the movie, walking tall. Affellant is of a world were 212 equals = 4 four. But 4et feels as if Holl4wood has casted this roll.
The criminal episode begins when the attackers in an4 wot restricts the victims Freedom of movement and it ends with the Final release or escape of the victim from the attackers control. Cruz V. state 238 s.w. 3d 389,398 (Tex. AFP-Houston) 1st Dist D2006, No Ret) citing Burms V. state. 728 s.w. 2d 114, 116 (Tex. AFP Houston D4Th Dist) 1987, Ret retd) See Figueroa V. state, No. 07-05-0314-cR. 2006 Tex. AFP Lexis 2603, 2006 w.t 825036 at 2 Tex. AFP-Amarillo 2006, noRet)
STATES, witness Testified That at some foint Affellant starts calling Mr Cervantes daughter, There is nothing about any kids an4 were, nothing, a statement of Mr Cervantes, or either of the officers refort. Being a father, the world would have Known. (4RR12:10-25:) (4RR 13:4-21) Sufreme court held that the denial of the right of effective cross-examination was constitutional error of the First magnitude requiring automatic reversal 719F2d at 1464 quoting Davis V. Alaska 415 us 308, 318: 39L Ed 2d 347, 94 S.C.T.
*8 Mr Cervantes testified that once the sheriff's defantment showed up he did not come out not until everything was over (3RR 53:19-20) Mr Cervantes turned around and testified that he did not come back out until the sheriff showed up. (3RR 60; 8-9) Mr Cervantes testified that Luna tried to make affellant but the Knife away and get APRellant To thiside. (3RR 52; 16)(3RR 52,200) Mr Cervantes want's to make sure he covers all ground, he also testified that mr Luna get APRellant To go back where they were because he went inside. (3RR 52; 21-23) The state starts testifying for witness (3RR 52; 2425: (3RR 53; 1-11) Mr Cervantes Testified that Mr Luna escorted APRellant back to his house, but he's not sure. But mr Luna go's back to the clah shat. (3RRS3; 8-10:) MrLuna Testified, That once he got to arrived he told APRellant, what's going on, and That APRellant and Mr Cervantes was just talking. Mr Luna Testified he Told Mr Cervantes To goins and Told APRellant to leave because he was going to call the law, and when they started seffarating he take the of to go Callitits out. (3RR 24) MrLunq's Testimony is not anything like Mr Cervantes. See 3RRS226-25 (3RRS3:8-20)
*9 Mr Cervantes testified that once the sheriff's defartment showed UP he did not come out not tintill everything was over (3RR 53:19-20) Mr Cervantes turned around and testified That he did not come back out untill the sheriff showed uP. (3RR 60:8-9) Mr Cervantes testified that Luna tried to make affellant PoT the Knife away and get APRellanT To inside. (3RR 52:16)(3RR 52:20:) Mr. cervantes want's to make sure he covers all ground, He also testified that mr Luna get APRellanT To go back where they were because he went inside. (3RR 52:21-23:) The state starts testifying for witness (3RR52:2425: (3RR 53:1-11:) Mr. Cervantes Testified that Mr Luna escorted APRellanT back to his house, but he's not sure. But mr Luna go's back to the clof shoot. (3RR53:8-10:) Defendant, (3RR53:24-25) Mr Luna Testified, That he asted ance he got arrived he told APRellan, what's going on, and That APRellanT and Mr. Cervantes was just talking. Mr. Luna Testified he Told Mr. cervantes To go insi and Told APRellanT to leave because he was going to call the law, and when They started seParating he take of to go Call (3RR53:8-24) Mr. Lona's Testimony is not anything Like Mr. Cervantes. See 3RR52:16-25 (3RR 53:8-20)
*10 If counsel had imfeached the testimony of state witnesses officer Georgino maritz, and Michael Cervantes, Guadalte Luna Jr, there credibilit4 would have obviously been so weak as to undermind confidence in the verdict under Johnson V. State, 23 S.W. 3d 1 (Tex Crim. MP 2000) Retitioner directs to no evidence, insufficient to show the affellant exhibited a deadly weafon, also insufficient To show defendant used or intended to use the Knife so as to inflict serious bodily harm or death, Harris V. State, 562 s.w. 2d 463 (1978) also. S. W. 2d 285, 1980) insufficient to establish That The Knife he exhibited was a deadl4 weapon. Bendamin Davidson Jr AffellantV. The State of criminal AHeals of Texas 602.S.W. 2d 272; 1980 The allegation of ineffective assistance of counsel will be sustained onl4 if the4 are Firmly Founded. Johnson V. State 614. S. W. 2d 148 (Tex crim MP 1991)
*11 The court in agurs justified this standard of materialit4 on the grounds that the knowing use of ferlured testimons involves Rosecubrial micanduct and more imfortanti4, involves a corruption of the truth seeking function of the trial process Id, at 104,49 1.8d 2d 342, 46 S.Ct 2392.
The courts would have to fit blinders on as to not see all of the PerJured testimont of each one of the states witness. Stact Dorot. K, Maritz, each one of these witnesses have contradicted their own testimonts as well as onenother. (Inconsistenc4 of statements) as grounds for Imreachment in general. Rules of evid, rule (608(b)) (604(a) Factual Sufficienti, Retitioners Factual Sufficient arguments are based on the facts of the record for affeul. Defendants cousels Performance was deficient, because counsel made errors so serious as to deftive the defendant of a fair trial with a reliable result.
*12 Coming out of the gate, state already made a substantial showing of denial of constitutional rights, under the sixth and Fourteenth amendment. State witnesses testifying Voluntaril4 about Prior Criminal record. Michael Servantes and Guadalupe Luna Jr. (3RR 39; 4-21)(3RR67;3-20) And Officer Moritz Georgino should have also been imfeached for Falsely testifying (3RR 95;17-22) (CR; 8-1) Retitioner's Factual sufficiency arguments are based on the facts of the record for Afreal. Defendant's Counsel's Performance was deficient because counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the sixth and Fourteenth amendment and counsel's errors were so serious as to deffive the defendant of a fair trial with a reliable result.
*13 Being a Parent and having someone around you did in trust around your kids as Mr Cervantes stated: (SER 46: 10-11.) How could you not know if they were Playing around that Person If mr Cervantes has claimed the kids were Play in back of Fruck not know affellant, if there or not. (3RR46: 7-13) Affellant's Point being this never haffened, there was no Knife. Mr Cervantes testified that Affellant filled a weapon, a Knife when he gets out of his truck, but 4et he could Look, and reach in back of his truck and get a stick, stake, or club, wood mean; The criminal eftsade begins when the attacker in anywah restricts the victims Freedom of movement and it ends with the final release of escape of the victim from the attackers control. Cruz V. state 238 s.w. 3d 389,398 (Tex ABP-Houston]1st Dist [2006, No Pet.) citing Burns V. state. 728 s.w. 2 d 114,116 (Tex ABP Houston (14Th Dist) 1987, Pet refd). see Figueroa V. State, No. 07-05-0314-cR. 2006 Tex, ABP. LEXis 2603, 2006 WL 825036, at 2 Tex ABP-Amarillo 2006, NoPet) not designed.
*14 It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown betond a reasonable doubt that the defendant committed each elemend. XIV; Tex code crim Proc. Ann art. 38.03 (vernon SuP 2008:) Tex Penal code ann. $ 2.01 Evidence is legal! Insufficient if when viewed in a light most Favorable To the Prosecution, a rational trier of Fact could not have found each element of the offense betond a reasonable doubt. Jackson V. Virginia, 443 U.S. 307, 318, 99 S. ct 2781, 2789, 6 L.Ed 2d 560, 573 (1979) Laster V. State, 275 S.w. 3d 512, 517 (Tex crim AP. 2009) Mrs. Protik could not Identify Affellant without being Lead by the states Attorney (3RR 28; 1925) Therefore dening Affellants Fourteenth amendment, prohibitting a conviction except when Proof betond a reasonable dabt of every fact necessary to constitute the crime with which a defendant is charged. STATES witness Michael Cervantes Testified that Affellant was reall at the Back of his truck, his later testimonials Place's he's Kids in back of the truck. Being at back of truck; (3RR 46; 10-19:) Kid's Plating back of truck; see(3RR 49; 16-18)
*15 The court reasoned that a deliberate deception known to be perfured is inconsistent with the rudimentary demands of Justice Id at 11279 L Ed 791, 55 S.Ct 340, 98 ALR 406. The court reaffirmed this PrinciPe in broader term in PyLeV. Kansas 317 us 21387 L Ed 214, 63 s.Ct 177.(1942). Where it held that allegations that the Prosecutor had deliberatel4 suffressed evidence favorable to the accused and had knowingl4 used perfured testim onl were sufficient to change a due Process violation.
CF.NAReV. Illinois, 360 us. 264, 269, 3 L Ed 2d1217, 79s.CT 1173(1959) The Jur4 estimate of the truthfulness and reliabilit4 of a given witness ma4 well be determinative of the witness in testifying falsel4 that a defendants life or Libert4 mat defend.
The court in Agurs Justified this standard of materialit4 on the ground that the knowing use of perfured testimont, involves a corruftion of the truth seeking function of the trial Process Id, at 104, 49 L Ed 2d 342, 965.ct 2392.
*16 It is a Fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown betond a reasonable doubt that the defendant committed each elemen. XIV; Tex Code crim Proc. Ann art 38.03 (vernon SuP 2008) Tex Penal code ann. Evidence is legal! 4 insufficient if when viewed in a light most favorable To the Prosecution, a rational trier of fact could not have found each element of the offense betond a reasonable doubt. Jackson V. Virginia, 443 U.S. 307, 318, 99 S. CT 2781, 2789, GIL.Ed 2d 560, 573(1979) Laster V. state, 275 S.w. 3d 512,517(Tex crim APP. 2009) Mrs Drotik could not Identif 4 Affellant without being Lead by the state.(3RR.28;19-25:) Therefore dening Affellants Fourteenth amendment, Prohibitting a conviction except ufon proof betond a reasonable doubt of ever 4 fact necessary to constitute the crime with which a defendant is charged.
The court in Agurs Justified this standard of materialit? on the ground that the Knowing use of Refured testimon 4 involves Prosecutorial misconduct and, more imfortantly, involves a corruption of the truth seeking function of the trial Process Id, at 104, 49 L.Ed 2d 342,96 S.Ct 2392.