Munoz, Robert

Case Information

ORIGINAL No. 11-13-00139 CR

IN THE COURT-OF-CRIMINAL APPEALS OF TEXAS

ROBERT MUNICL, AMMELHUT V.

THE STATE OF TEXAS, AMMELLE

APPELLANTS PETITION FOR DISCRETIONARY REVIENT

IN APPEAL No. 11-13-00139 CR FROM THE COURT-OF-APPEALS 11th District EASTLAND CLUNTY TEXAS

FILLED IN COURT OF CRIMINAL APPEALS D. 1012010

Abel Acosta, Clerk

HIR ROBERT MUNICL No. 01859917 STEVEUSON UNIT 1525 F.M. 766 CHER. 1 TEXAS $-7\mathrm{M}\mathrm{S}\mathrm{Y}-$

THAEV OF AUTHORITIES

U.S. CONSTITU TION

FIFTH AMELAMENT OF THE U.S. CONSTITUTION SIXTH AMELAMENT OF THE U.S. CONSTITUTION FOURTEXTH AMELAMENT OF THE U.S. CONSTITUTION

U.S. SUPERFINE COURT

ANAERS V. CAIIFORUIA 386 U.S.738,18 L.Ed.2d,493,875.Cf.1396.(1967) BRANY Y. MARTLANIS 373 U.S.83,85 S.C4.109 (1963) REJEK V. U.S. 223 F. 2 d 621,655 (1955-5 NA.CIE) CHROUIC V. U.S. 466 U.S.648,88 L.Ed.2d 657,1045.Cf. 2036 (1964) GRIFFIN V. CAIIFORUIA 330 U.S.609,615,85 S.C4.1229,1233,14 L.Ed.2d/106 (1965) II JENKINS V. ANAERSON 447, U.S. 231,236-40,100 S.C4.2124,2129-30,65 L.Ed. 2d 86... 7 M'MANN V. RICHARASON 397 U.S. 759,771 m.14,25 L.Ed. 763,90 S.C4.144 (1930) 17 MIRANAA V. ARIZONIA 344 U.S.436 (1966) 10 PENIELL V. ALARAMA 287 U.S. 45,55 S.C4.57 L.Ed. 158 (1932) GUINN V. U.S. 349,155,162-64, 75 S.C4.66,693-74,95 L.Ed. 964,972-73 (1955) 15 ROMIPELIA V. BERNA 125 S.C4.2456 (2005) ROSE V. U.S. 141 F.5419.2d 661 (2001) 13 SALINAS U. TEXAS 133 S.C4.2174, 2162-83 (2013). SAITH V. U.S. 337 U.S. 137,69 S.C4. 1000,93 L.Ed 1204 (1949) U.S. U. ASH 413 U.S. 300,309,37 L.Ed. 2d 614,93 S.C4.2568 (1973) U.S. U. RUSSON 952 F. 2 d 1196 (NAN.CIE 1991) U.S. V. GODGWIN 470 F. 2 d 443 (1972) (ENA CIE) U.S. V. U.S KIMMELL 288 F. 2 d 669,676 (1016 CIE 1993) 11 STRICEIANA V. WASVIUSTON 466 U.S. 668,1045.C4. 2052 ROLEd 2d 674 (1964)

TEXAS CONSTITUTION

ART I, SEC. 10 OF THE TEXAS CONSTITUTION.

TEXAS COURT OF CRIMINAL APPEALS HUNTER V. STATE 530 S.W. 2d 573 (TEX.CRIM.AD. 1973). TEXAS COURT OF APPEALS HEWESSY V. STATE 268S.W. 3d 153,161 (TEX. ARR RIAIC, 2005) WERRU V. STATE 86 S.W. 3d 621,622 F. 29 (TEX.CRIM. AD. 2002) JOHNSON U. STATE 172 S.W. 3d 6 (TEV. APR-FE. WORTH 2005) SAINAS V. STATE 369 S.W. 3d 176,179 (TEX.CRIM. AD. 2012).

TEXAS COME OF CRIMULML PROCEDURE AR7. 1,05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT REGARDING ORAL ARGUMENT

STATEMENT OF THE CASE ..... 2 STATEMENT OF PROCEDURAL HISTORY ..... 2 CHRINGS FOR REVIEW ..... $3-19$ CHRINGS FOR REVIEMING ONE: THE TRIAL COURT ABOVED ITS DISceTION IN AROUNDS TESTIMENT THAT A WITNESS HAS PRESIDUSLY BEEN CONVICTED OF HUMBERING AMMEHEWSUN EROUNDS FOR REVIEMING THIS: THE TRIAL COURT ABOVED ITS DISceTION IN AROUNDS TESTIMENTY OF AMMEHNSES ROUNDS COMPANY GETTING OFF ROND GROUNDS FOR REVIEMING THREE: THE TRIAL COUR ABOVED ITS DISceTION BY AROUNDS TESTIMENTY THAT AMMEHENT BELIEED OFFICERS REGUEST FOR A STATEMENT. GROUNDS FOR REVIEMING FHIR: EVERFECTIVE ASSISTANCE OF COUNSEL

PRAYER FOR RELIET. CERTIFICATE OF SERVICE ..... 20 APPELINX ..... $N/A$

No. 11-13-00139CR IN THE CURT OF CRIMULA ABREALS OF TEXAS Roser Munoz - Appellant V.

The State of Texas. Appellate Appellants Petition for Discretionery Review

To the CURT of CRIMULA ABREALS OF TEXAS: Please FING USEEAM APPellants PRO-SE ACTION, HOWEVER. THE AUSTINAL CUPIES FOR DISceEtionery REVIENC CALLS NOT BE MAKE, THERE IS NO ACCESS FOR HIMATES TO MAKE ANY CUPIES IN T.O.C.J. IN THIS CRIMULA PESTION YOU AUD THE CULTT HIIT FING ADDITIONAL ASSUREDTS MAKE AS TO SUPPORT EACH GRAVING WITH THE CITATION TO SUPPORT EACH ASSUREDTS MAKE AS TO SUPPORT EACH GRAVING WITH THE CITATION TO SUPPORT EACH ASSUREDTS. THESE GRAVINGS ARE IN THE SAME ORDER AS ORTHOIDD FINDD BY APPellate Cruise? THIS PETiTON IS IN ACCURDINCE TO THE STA TIMATORY LAVAGNAGE IN RULE OF TEXAS RULES OF APPLLATE PROCEDURE, ALLEN, THE CULTIPY MAY FING ANY MISTALES ON THE FILMA, THE PETITICNER RESPECTRITly REGUEST THAT THIS CURT DOES NOT HELAS IT AGAINST APPLANT, PLEASE TAKE JUNICAL MOTICE OF THIS ENTIRE PROCEDURE HOWER TEXAS RULES OF EUDENIC IO 3 (F) AND 201, ESPECIALLY ON THE TACT THAT APPLLATE CULUSE! HAS FALGED TO CULTANIAE THE SUFFICIENCY OF EUDENICE IN HIS RRIEF, THEREFORE, HE HAS AIG EVER CONSTITUTIOUALLY INEFFECTIVE FOR NOT FILMA MATERIAL ISSUES ON THE HSAFFICIENCY OF EUDENICE KNOWLMA THAT PETITICNER CAN ONLY CULTANIAE

THE SUFFICIENCY OF EUROEUCET ON DIRECT ABRREAL, OR DIRECT RECUETU. APRellant PRAYS ACCEPTANCE BY THIS NEURORABLE CULLET TO BRING HIS PETITON WITH All EXHIBITS AND All MRTES FIRM INTO THE CULLET. APRellant RELMEC TPMIIE PERUEST NOTICE OF RECEIPT OF THIS PETITON AND FIIMA.

RESPECTFIIIIY SCIDMITTEA,

RUDENT MUSIA / PRo-SE No. 1857917 STEURNSON MUNIT 1525 T.M. 706 CHERD, TX. 77954

SIGNADA AND MTEA THIS 25TH MYOFSEPTEMBER 2015-MAJERS CERTIPER.

STATEMENT REPARGUIA ORAL ABRICDIENT

THE ARRellant REgUEST ORA/REgUMENT IN THIS CASE DUE TO SUCH ARGUMENT MAY ASSIST THE COURT IN APPlyNA THE FACTS TO THE ISSUES RAISEA. IT IS SUBRESTER THAT ORAL ARGUMENT MAY HELP SIMALIFY THE FACTS AND CIRRIEY THE ISSUES.

ON ARRIL 20, 2011. APPELANT WAS INGICtES ON OI COUNt OF SEXUAL ASSAULT OF M.A.K. WHO AIIEERS SHE WAS IS YEARS OF AGE; AIIESTERS 3/6/11, BENARES ONT 3/9/11, RE-INDICtES ON 84/2012 AFTER AIIESTERS ARUING 1/12/12, WHO AIIEXING OI COUNTS, AFTER AIIEST 1-YEAR FROM ORIGINAL INDICTMENT WITH TOTATI AIF FEREUY AIIEATIONS; RE-INDICtES 5/2012, AND RE-INDICtES ON lEULY WITH ORIGINAL YIELD CHARGE AND AN ASSISTUING CHARGE OF "SEXUAL ASSAULT."

TEAL WAS IN 84/2013, AND JHEY FUING APPELANT GUITY OF ASSISTUATED SEXUAL ASSAULT OF BOTH COUNTS, IF NOT, JAGGE SEN TENEES ASSISTUATED EVEN THEREN NOT CHARGEA ON ANY INDICTMENT OF ASSISTUATED, AND ALL (4) JUGIC TAKEN'S WERE ON SAME CAUSE NO: C.P. 38,476, PUNISHMENT BY JUGGE AT (26) YEARS 28.C.T. TO RUN CONSECUTIVE; ON BOTH COUNTS.

STATEMENT OF PROCEDURAL HISTORY

IN CAUSE NO. CR 38,476 THE APPELANT WAS CHARGEO, ON THE 4th RE-INDICTMENT OF SEXUAL ASSAULT, 2-COUINTS. THE APPELANT WAS CONVICtES OF SUCH OFFENSE ON 4/2013 AND APPEALES THE CONVICtION. ON 6/30/15, THE 1/44 COURT-OI-APPERS AFFIRMED THIS CONVICtION. NO MOTION FOR REMEMBING FILED OUE TO THE LACK OF KNOW LEASE OF APPELANT FROM APPELATE CAUSE! ON 25 SEP. 15, THIS PETITION FOR DISTECTIONARY REVIEW WAS TIMELY FORMARIED TO THE COURT-OF-APPERS FOR FIINH PURSUANT TO RULE 9.2 (6) TEXAS RULES OF APPELATE PROCEDURE.

GROUND 1

THE ORAL COURT ABOVED ITS DISCEE TION IN AIIUNING TESTIMONY THAT A GUTRES HAD PREUWUST BEEN CONVITED OF HUMBERING APPLIIANTS APPREHEMSTON!

ARGUMENT

(1) ON THE ISLME THAT THE GUTNESS QUESTIONED ABOUT HUMBERING THE APPREHEMSTON OF THE DEFENDANT SEVEREY HUPT THE APPENDANT BECAUSE THE PROSECUTUR MADE IT SEEH THAT THE DEFENDANT WAS A FUBATIVE FROM JUSTICE, ANG THAT HE WAS ON THE EUN, WHEN IN TRITH, THE DEFENDANT WAS NEVER CURREED WITH ESTURE OR ALIMBUN THE POLICE OR EMBLING AEREST, SEE TEX, CAGE CRIM PROC. 51 AND PEN. CODE 38.04 . (2) THE DEFENDANT WAS NEVER FOLHES AT THE GUTNESSES HONE, AND FOR THE STATE TO CURRE THE GUTNESS WITH HUMBERING APPREHEMSTON OF THE DEFENDANT IS NOT ONLY AN ABOVE OF DISCEE TION, BUT AISO MAlICUUUS PROSECUTIOUS, AND MAlICUUUS AEREST. EUIDENCE OF FIRMT OF CORRESE IS IN GENERAL AOMISTABLE ON THE ISLME OF GUILT, HUNTER U.S.STE 530 S.W. 24523 (TEX.CRIM. APT. 1923), BUT IN THIS CASE, THERE IS NO EUIDENCE. THERE WAS AN ARREST WARRANT PULCEA ON THE DEF. EWIMNT, BUT HAS THE DEFENDANT BEEN AIIUNING THE AUTRORITIES, HE WOULD NOT HAVE CUNE BACK FROM A VACATION IN CANCUN IN OUTERII NOIR FROM A DUSINESS TRIP TO ATLANTA, GENERIA IN OITERI2. WHEN APPLIIANT TICK THE ABOVSED GUTNESS OF HUMBERING HOW ALONG WITH THE AIRREED GUTNESS TO CANCUN IN THE OUTERII CANCUN TRIP, SEE FUENT ANG HOTEL INFO SEE EXHIBIT $\frac{1}{5}$ , THE PROSECUTUR NOT ONLY MAKE IMPROPER COMMENTS WHEN SHE STATES: (a) WES KUZMICH, EIIZMEEYH, NO YOU GO TO JAVI FOR HUMBERING APPREHENSTON OF THE DEFENDANT? ... A? YES (A) THAT THE STATE FAIED 70 SAY IS THAT THE DEFENDANT AT NO TIME WAS AT THE ACOUSED GUTNESSES HONE, THEREFORE, SHE CHILDHTT NUR SHOULA OF BEEN CURREED.) (a) ARE YOU CURRENTSY ON FELUNY PROTAIION?... A? YES (a) FOR HUMBERING THE APPREHENSTON OF THE DEFENDANT?

As I don't know what that means, but, yes ( 13 R.R. (D) 169,120). However, without any fixed effects, for the police such as events, arrest, the effects filled against element and completely false and malicious and not she not need asked questions of this nature as the presence of bis, and because such questions should qualify a bis such evidence of the effect. And not although the police do not exist anywhere. Therefore, this direction must be effected and refracted for a new trial.

(3) Even though curved for the effectors, such as two or three in the same position of the upper pressure actions, unless the person Held the presence of a certain effect, the presence of the real-cruel status of responses, evidence of the effectors. That the effectors, the real-cruel status of responses, evidence of the effectors. That the effectors, was checked to support that the was filed by them the police and of that he was actually found at elizareth kuzanich. Hence, which he was not.

(4) Just because a person knows another person does not make him or not either person's actions, unless the person Held the other question. A celline or they were from found under the same rule or celline scene. Under T.R.E. Rule 198, such evidence is reasonable and the way of questionning is so important to make and that we cannot be asked not for evidence of efficacy. The current and real was for another choice, not for escaming or adjusting the police. The evidence presented made it look like the effectors was found to escape, therefore, made him look easily at the subject and the object was present.

The outcome of the processes, the effectors was our focus in case no. c.r. 38,496, see the statement made by the presence of an the 'evolunt notice of intent to effect evidence of efficiency, or the effectors, while also

BH THE DEFEUDANT, FIERON OR ABOUT 12-21-12, SEE MAE 3, PAGGENEN' 5 THE DEFEUDANT WAS EHOWH TO BE IN SEVERTAL DIFFERENT CITIES REFERE APREHENSTHN, IN ADDITION, THE DEFEUDANT WAS AWARE OF HIS MEREST AND FAIED TO TURN HINSEIE IN EIIZABETH KUZMICH WAS CHARGED WITH HINBERING THE APREHENSTHN OF THE DEFEUDANT AND IS CURRENTLY IN PROBATION FOR THAT CFFENSE. THIS STATEMENT WES NOT REFLECT THAT APREDIANT WAS EVER FOUND AT EIIZABETH KUZMICHN' HONE. THEREFORE, SHE WAS NOT HINBERING THE APREHENSTHN OF ANYONE, SHE SHOULD NOT HONE BEEN USED TO TESTIFY AND FIEP HER TESTIMONY AGAINST THE DEFEUDANT. HAD THE STATE NOT SUPPRESSED THE EVIDENCE OF NO CHARGED OF EUROINS ON THE DEFEUDANT AND THAT AT NO TIME WAS NE AT EIIZABETHS HOUSE OR MERESTED THERE, RESULT OF THE PROFEEDING WOULD HONE BEEN DIFFERENT. SEE EXHIBIT ${}^{12}5$ . (5) IT IS CIFARIY STATED IN ART 2:01 OF T.C.C.P; THAT IT SHA!l' BE THE PRIMARY DUTY OF all PROSECUTING ATTUENEYS, NICH OINS SPECIAL PROSECUTORS, NOT TO CONVIC. T, BUT TO SEE THAT JUSTICE IS HONE. THEY SHA!l NOT SUPPRESS FACES OR SECRETE A WITNESS CAPAGE OF ESTABIISHING THE INJCCENCE CF THE ACCUIED, AS IN THIS CASE. THE PROSECUTOR FAI'ST ANDE CHARGES AGAINST EIIZABETH, BUT NEVER CHARGED APREDIANT OF AUGONS MEREST; SEE T.C.C.P. AET 51, AND PENAL CUBE 38.04. THEREFORE, FOR THE THEY NOT CONSIDERING FACES OUTSIDE THE SURVE OF THE EVIDENCE PRESENTED THAT APREDIANT WAS AIRGÉGly AIIUOING THE PAPLE, ABOUTLY APRECTED THE URGICT. THE PROSECUTOR SHOULD HONE DISCLUSED THAT SHE TABRICATED CRIMINAL CHARLES AGAINST EIIZABETH KUZMICH FURTHERHONE, THE TOTAL COURT COMMITTED AN AOUSE OF DISCRETION, AND WUWATED THE RIGHTS OF THE DEFEUDANT TO HONE A FAIR AND IMPACTIAL TRIAL AND ITS EVERG DUE PROCESS SUCH AS WITHOUNG ONY MATERIAL FACT IS A DERASY WUWATIION, SEE ERADY V. MARYANDS 373 U.S. 83, RS S. 64, H04 6963).

GRUUUS 2

The realcauce causes its disceEATION in permittura the show, if not too\% HENESTY STATEMENT BY THE BONDIUS COMPANY.

ARGUMENT

(1) The state faition to pence ANY material or physical evidence for the true reason BONDIUS COMPANY WENT off of BOND. THE RECIERD will reflect NON-RESPONDIVE ALSEURS FROM BARRENZES WHOLE BEING QUESTIONES. (2) Furthermore, the RECIERD states that LAST PAYMENT ANDE BY APPELANT TO BONDIUS COMPANY WAS LATE DECEMBER ZUII, FIVE MONTHS AFTER APPELANTS BE TURN FROM CANCUN TREP WITH ELIZABETH, MEETANN AND W. ISON KUZMICH. KHICH BY THE MAY. IN FACT, THE APPELANT CALLON BONDIUS COMPANY ON THE WEINESMY, OBSIDELIII, TO DO HLS WEEKLY REPORTING WHECH BONDIUS COMPANY SPOWED NO EUdENCE, HOW STATE OF ANY NON CALL-ING SINCE APPELANT WAS ORGINELly ON BOND SINCE USIEUU. This SPECIFIC LAII TO TIGS FAI BOND WAS FROM APPELANT FROM HIS HOTEL FROM IN CANCENT. SEE ETHIRIT 45 ENCLOSED.

GROUND 3

The realaulet abusEd its discection by allowing testimony that appo/ant deci used offices REOUEt for a statement.

ARGUMENT

(1) On the argument of this group, it clearly shows that appo/ant useded his 5th agreement étant when he told inveStiGuthe c.thedtes: "He would not speak without his attorict present and his aumושl abuisted him not to take to feedtes without aumisted present. InveStiguthe interminares testimonial a 7 zeual group Not have been abnitted since appo/ant had already included his étant against self-incetimination invekiur his 5th agreement to feedtes, seEexitit 4, cast paragem. The reciors should reflect that aumice/for appo/ant was to she/by since 6/2011; interminares ountacted appo/ant october or November or so 2011. C. FUENTES is a gaUdement official. Therefore, it is fHENTES duity to impute a beFeNDANTS 5th ameNament oNEE IANUKEd TO EVERY OTHER STATE ABENT! GGERD V STATE 86.5 W. 3d 621625-29 (ex.crim. App. 2002). Therewithier intEnades to speak to appo/ant again evtement of reuses, not for the chance he is in cursuy for. This evidence of his silence was substan'tially inenful and provided the linear and unant cUTcure, not in accordance with the 163. It is well settled that if a deffernant testifies, his per-areest silence can be used to impercH him; IENKINS y augescN HYT 45.231238; 161102 S.Ct. 21242129.30.65 L.Ed. 2d 86 (App). However, in this case, appo/ant cannot testify. (2) Therefore, using the inveXement and the protection of the feedral protected RIEHT against appo/ant as is the 5th agreement, was suently an appose of discection, but a violation of appo/ants due process riants as guAREnTEEd by the united states constitution andement if. The STATE in RETUERd uses theminaries, attegt to inveStigute appo/ants evtamentals offeuses against him, showing perfectly well He was already protected by the 5th ameUdement.

(3) When the state offered the appellants pre-argest silence against him to minipulate Guilt, see HeubESEY V. STATE ZL.B. 5 W. 24152 .1617 Fax. AM. WAGO ZUNG), I7 victates His sth amewament RIBHT, NO COURT HAS YE? DEEIDED ON NEMESEY ACCORDING TO THE 10th CARTt-of-DEPORLS. IN APPERIANTS ISSUE, THERE IS NO QUESTION TO DEEIDE BECAUSE C. FUENTES HAS STATES INTO THE RECORD THAT APPERIANT STATES TO HIM THAT APPERIANT WUUUS TALE TO HIM WITU CULINIETS PRESENEE AND COUNIET ADVISED APPERIANT NOT TO TALE TU C. FUENTES WITHOUT CILINSEIS PRESENEE; EVER AF TEX APPERIANTS ARREST, C. FUENTES FAILED TO CONTRACT HIM TO SEE IF HE HIM OF THINED COUNIEL, AND TO PERCEED WITH WHATEVER FUENTES WANTED TO DISCLISS, AND THE REASON FUENTES DID NOT PERSIST IN THE ISSUE IS BECAUSE APPERIANT AND INVULGED HIS PERCEAL PROTELTED AND EQUAL RIGHT WHICH IS TO REMAIN SILENT THEREFURE USING SILENCE AFTER APPERIANT HIM INVULGED HIS CONSTITUTIONAL RIGHT, IS A DUE PERCESS VIOLATION BECAUSE ON ITS FACE APAINST THE RIGHT TO THE ACCUSED CITED IN T.C.C.P. AET 1.05, TEV.COUST. AET I 520 AND OF CORRE THE 5th AND 14th AMENOMENTS. FURTHERMORE, THE STATE HAS ETRUNEQUALY REBUTTED APPERIANTS PUNt No. 3 WITH SAUHES V. STATE 569 S.W. 24176 .1767 FAX. CERM. APP. 2012), AND SAUHES V. TERAS 1532 C. 1217 C. 2182 .83 (2013), IAN 47 OTHINUS 1332 C. 2182 .8V. IN SAUHES, HE NEUROF INVULGED HIS RIGHT TO REMAIN SILENT, HE THAT VERT SIENT, AND IN CRUER TO BE PROTECTED, A PERFICINUIT HUGHER, IT DUES NOT HAVE TO BE SPECIFICATY SUCH AS TO SAV: "I AM INVULGED THE 5th," A SHUNING THAT A PERFICN ASSURES TO REMAIN SILENT SHUUED BE SUFFICIENT AND CF CORRE, SAUHES CAN NO 7 CHAM THAT HE INVULGED ANYTHING AS APPERIANT DID, SEE STATEMENT BY C. FUENTES AT STATES RELIE (7), SAUHES NEUROF SAID WHAT HE WANTED, ALBERT, IN THIS CASE, THERE IS THE SURFUETED MATERIAL EUIDENCE IN THE RECORD WHICH SAUHES CIGHEIV AND STATES BY THE APPERIATE WUULD ONLY THAT TO C. FUENTES WITH COUNIEL PRESENT AND AS-

ADUISED BY CHUNSEL, SEE APPELIASTS BRIEF PRAE (11), WHICH SAYS: C. THENTES TESTIFIED THAT HE TECK A STATEMENT FROM THE COMPLAINTANT, AND C. THENTES ATTEMPTED TO TAKL A STATEMENT FROM APPELIAAT, ACCURAINED TO C. THENTES REPORT, HE CONTACTED APPELIAAT BY PHONE AND HE INITIALLY AGREED TO GUUE A STATEMENT, PROVIDED HIS LAWYER HAS PRETENT. THIS PRINT WAS NOT MAGE BY APPELIAAT, BUT BY C. THENTES HIPPETE, C. HENRY SHOUNG THAT APPELIAAT INUOKEO HIS RIGHT TE SEIE NICRIAIIATING, IF THE ACCUSED BE? ON F.C.E.P. ART. LES, IN H.S.U. GEORGHEW 470 E 2 d 8 V 2 (2th C.I.) "IT IS AGREED BY ALL THAT A CLAIM CF THE PRIVEREE DES NOT REGUIRE ANY SPECIFIC CONRUIIATION OF GUROS. PLANELY A WITNESS NEED NOT HAVE THE SKILF OF A LAWYER TO INUOKE THIS PROTECTION. IF AN CREETICN TO A QUESTION IS MAGE IN ANY LANGUAGE THAT A QUESTION MAY REASONABIYBE EXPECTED TO UNDERSTAND AS AN ATTEMPT TO INUOKE THE PRIVEREE, 17 AUGST BE RESPECTED." (4) THE H.S. CONST. AMEND. IS A SACRED PRIVEREE, AND 17 IS NOT TO BE DEPIED BY REGUIPING USE OF A PESSUURD TO CRESS 175 PROTECTURE PORTS, [SHCH AS IN THIS CASE], IT'S INVIOITING NEED NOT TO BE RUARIQD PROCLAINED WITH ANY REGUISITE OF DECIDES, 17 IS ENOUGH IF THE PERSON HEMERICY THE TESTIMONY RECEIVES THE MESSAGE BY WALTERNER FROM OF TRAUSATMEN. TH ERICK Y H.S. 223 E 2 d 8611185 (6th C.R 1955), STATES THAT THIS COURT REGUIRES THAT REFUKE A MAN CAN BE COMPETED TO TESTIFY AGAINST HIMSELF, HE MUST HAVE A FAIR CHANCE TO EXERCISE HIS RIGHT WNAER THE 5th AMENDMENT, AND IN COUNK Y. H.S. 349, 155.162 .164, 25 S. 84.1625 .74 .951 E 6 .964 472.13 (1955), AS ELDERVICME AGREES, NO RITUALISTIC FORMULA IS NECESSARY IN ORDER TO INUOKE THE PRIVEREE, SEE ALSO SMITH V. U.S. 327 H.S. 132.69 S.C. 1000193 L E 6 .1204 (1949), SAYS; NO EUnderCE dOTAINED DIRECTLY CR INUORECTLY FROM THE COMPETED TESTIMONY MAY BE USED AGAINST HOR IN ANY CRIMINAL PROCEEDING. (5) THE PROSECUTUR HSED APPELIAATS SIENCE AGAINST HIM, PHONE SEE STATES

RESPONSE TO APPELIAHTS PERIET PAGE 7; SAYS: C. FUENITES TESTIFIED THAT APPELIAHT SUBSERVEDTILY INFORMED HIM THAT APPELIAHT WELUS NOT EUVE ANY STATEMENT WITHOUT HIS LAWYOK PRESENT, AND THAT HE WIL IS CULTAC? ME AT ANY TIME. THE EUVRENCE W C. FUENTES REPORT W/1 SHOUL THE DATE APPELIAHT C/MIMED HIS RIGHT TO self INCREMINATION ON 4-6-11 AT E.P.M. THEREFORE ANY STATEMENT BY OTHER OFFICERS IN ATTEMPT TO MAKE APPELIAHT SPEAK BY HINSEIE WITHOUT HIS ATTUERCE PRESENT WOULD CONSTITUTE A WIL TATING OF HIS SEIE INCEIMINATION RIGHT AND USING His WUORED CUNST, PULPEDR. RIGHT SILENCE "AS IN SAUMS Y STATE TO 15 W. Sd. (TH/TEK. CERM.APZ CUL2), IS A CERM ABUSE OF DISCRETION. SAUMS NEEUOK SAUS ANY THING TO WUOKE HIS RIGHT SAUMS WAS SIGHT, DUY APPELIAHT INVULED AND SHIKE AND SAIS HE WELUS NOT SHOUL NOT SHOULUY HIS ATTUERCE PRESENT, SEE T.C.C.F. 105. (6) I7 IS STYED AND REFLECTED BY THE EUVRENCE THAT APPELIAHT DIS CRIM HIS PROTECTED RIGHT BEING HE ILAI MERCITED, SEE STATES RESPONSE TO APPELIAHTS DRIEF WHICH SAYS: THERMNAN'FER SIMPLY TESTIFIED THAT SHE ATTEMPTED TO CONTACT APPELIAHT AND THAT APPELIAHT DECIDED TO SHOUL TO HEN. SEE FUENTES REPORT PAGE 7 OF STATES RELIVING; THERE IS NO EUVRENCE IN THE RECUED OF THE DATE APPELIATE WAS AREESTED; HOWEVER, C. FUENTES TESTIFIED THAT HIS COWUERSATVON WITH APPELIAHT DECIDED PRIVR TO APPELIAHTS AREEST, IN C. FUENTES REPORT BETTUMEF FING PAGE, C. FUENTES CIPMEY WRIEES THAT APPELIAHT CULTACYED C. FUENTES 2-MYS AFTER FIRST CONTACT, WHERE C. FUENTES SAYS: APPELIAHT CULTACYED ME AND SAIS THAT HIS ATTUERCE "ADVISED" HIM NOT TO SPEAK TO ME WITHENT HIM PRESENT. (98) THE EUVRENCE SHOULS THAT APPELIATE IS RIGHT WHICH HE STATES IN HIS DRIEF THAT HIS SILENCE WAS REE-AREEST, REE-MUNANDA, AUPANDA Y. ARICLINA 384 U.S.436(7764), NOW HERE IS THE POINT APPELIAHT WHATS THE COURT TO WUOERSTAND, ACCORDING TO THE STATE, THEY HAVE STATED THAT THE COURT-OF-

CRIMING APANAS AND THE SUPERIRE COURT OF THE HUITED STATES HAVE 80 TN HELLS THAT PRE-ARREST, PRE-MIRANDA SILENCE IS MOMISSABLE EUNETIVE AGAINST A NUN-TESTIFYING DEPENDANT AS SUBSCANTLNE EUNIENCE OF GULLY, SAIINAS W. STATE 349 S.W. 3d 176.179 (TEX.CRIM. APP. 2412), a $t1/2$ Salmas H. TEXAS 123 S.C. $2174/2182,83$ (2413), A DEPENDANT MUST EXPRESSLY INVERE HIS RIGHT AGAINST SELE WICRINING THAN, MEEE SILEUKE IS NOT ENOUGH, THE STATE IN THEIR CASE IS REIYING HEAVITY ON SAIINAS, WHEN IN TACT, WHAT WE HAVE IS A TUEEN WITH 2-SIDES, IN SAIINAS, THE RIGHT WAS NOT INVERE. A'S HAS REEIVSTATED BY THE CALET, IF YOU WUULD REFER TO SAIINAS 80123 S.C. 2163-84, SAIINAS SIMPly REMAINED SILENT. (8) PUFFICIPPILLE, APPELINNT DIS NOT EXPRESSIY SAY HE WAS BEING SO BASED ON THE 3th AMENDMENT, AND ACKVEDING TO THE STATE, APPELINNT SIMPLY REMAINED SILENT, SAIINES 3d 82182-84, SAIINAS 369 S.W. 3d 80129, ALDE 27, THE STATE HAS PRIVOIOUSIY TRIED TO FIIP THE COUR TO THE OTHER SIDE WITHOUT FIRPING 17. IT'S CIRREly THAT THE CALET HAS COMMITTED AN ABOVE OF DISCRETION, EMETLY WHAT KIND OF LANGUARE OR SECRET CASE IS APPELINNT SUPERIER TO USE? IT will take to YOU WITH AIY ATTURNY PRESENT" AND "AIY ATTURNEY AQUIRE ME NOT TO TAIR TO YOU WITHENT HIM, SHOULD MUST DEFINLTLY BE ENOUGH. IN H.S. Y BURTON 952 E 2 d 1196 (18th Cir 1991), DID THE TESTIMENT CF (2) CRIMINAL INVESTIGATORS CONSTITUTE AN TAPPERMISSAGE COMMENT ON MEL DES V.M.SKHOWELLERS F 2 d 469.676 (18th Cir 1989), THE GENERAL RULE CF LAW IS THAT ONCE A DEPENDANT HAS INVERE HIS RIGHT TO REMAIN SILENT, 27 IS "TAPPERMISSAGE FOR THE PRESENTION TO REFER TO ANX FIFTH AMENDMENT RIGHT WHICH THE DEPENDANT EVERCISED, SEE GRIFFIN V. DEHERMID 380 U.S. 609.615, 85 3.C4.1229.1233.14 L. EH. EJ 106 (1965). HOWEVER, IT IS REFLECTED BY THE RECORD THAT APPELINNT INVERE HIS RIGHT TO REMAIN SILENT DEFERE HIS ARREST. (9) THORENCEE, SAIINAS 369 S.W. 3d 179 (tue (RIM. APP. 2412) AND SAIINAS V. TEXAS 133. S.C. $2174/2182,83$ (2413) DE NOT APPLY TO THE PRESENT CASE

AND THEREFORE, THE CLINIC TION MUST BE VACATED OR REVERSED FOR A NEW TRIAL BECAUSE HAD THE PROSECUTOR NOT USED THE SIENCE OF APPELIAUT AND COMMENTED ABOUT IT TO THE JURY, AND THE IMPROPER COMMENTS ABOUT APPELIASTS SIENCE REINF, USED AGAINST HIM AS A SIGN OF GULAT, THE OUTCOME OF THE PROCEEDINGS WUULD HAVE BEEN DIFFERENT. WHERE APPELIAUT WAS ONLY EXERCISING WHAT THE UNITED STATES CONSTITUTION AND THE DUE PROCESS CLAUSE SAY IT IS HIS RIGHT TO HAVE. WUW THE STATE HAS FAIED TO STATE OR PUTOUT A SPECIFIC LANDGLASE THAT DEFEUMMING SHOULD USE WHEN HUOKING HIS FEBERAL EQUAL PROTECTED RIGHT TO SELF INCRIMINATION. PLEASE REFOR TO: US. Y. GEORGKIN VTO F. 245 (1972 5th Cir): "IT IS ADREED BY ALL THAT A CHIM OF THE POWERGE DES NOT REGUIRE ANY SPECIFIC LAMBINATION OF WORDS, PLAINLY, A WITNESS NEED NOT HAVE THE SKILL OF A LAWYER TO INVOKE THE PROTECTION OF SELF-INCRIMINATION CLAUSE; SEE THE 5th AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL AS THE 14th AMENDMENT. (100) HENEZ, BECAUSE OF THE CONSTITUTIONAL EXERLES MADE BY THE TRIAL COURT, THE APPELIASTS ATTURLEY, AND THE PROSECUTOR, THIS HONORIRE COURT IS REINESTED FROM THE HEART FROM THE APPELIANT THAT THIS COURT MUST REVERSE OR VACATE THE THOUGHENT OF CONVIC tION PUREMINT TO RULE 44.2 (9) TERMS RULES OF APPELIA tE PROCEDURE, OR AT LENS 7, IN THE WYEREST OF JUSTICE, REMIDD FOR A NEW TECAT.

GROUND 4 THEFFECTIVE ASSISTANCE OF CAUNGEL ARSUMENT (i) IT IS SUSSED IN ROSE (VIF SUPPERELI (RUH) TAL 7: THE PRESENCE OR ASSENCE OF PERIENCE, BOTH WITH RESPECT TO CAUNG OF INEFFECTIVE ASSISTANCE OF CAUNGEL AT THE TRIAL AND APPERLATE LEGEL HUMSES UP DID THE FAMCUSES OF THE TEOL AND THE RELIGIIITY OF THE INGRMENT OF CONVICTUUM RESULTING THEREERMAL. I.S.A 7 ZYZ. IN THE PRESENT CASE, BOTH CAUNGELS HAVE FAIED TO SATISFY THE CUL AMENDMENT RELIVEREMED WHICH TO PROVIDE EFFECTIVE ASSISTANCE OF CAUNGEL, ALBERT, APPERLATE CAUNGEL HAS FIELS INEFFECTIVE ASSISTANCE CLAIM ON TRIAL CAUNGEL; ON(7) ISSUES AND (5) PARABRAPHS. HE HAS PROVIDES INEFFECTIVE ASSISTANCE OF CAUNGEL HIMSELF, FOR NOT CHALLENTING THE SUFFICIENCY OF EUGENCE ON WHECT APPERL KNOWING THAT IT IS APPERLANTS ONLY CHANCE TO ATTACK THE SUFFICIENCY OF EUGENCE, BECAUSE A HABEAS PETITUMER CAN NOT ATTACK THE SUFFICIENCY OF EUGENCE ON HABEAS REVIEL, THOCEFERE, HE HAS BEEN CANSTITUTUOUS/ly INEFFECTIVE. ELEM TRIAL CAUNGEL STATES THAT ONE OF THE RELIGNS FOR A NEUL TRIAL ON APPERL WAS THE SUFFICIENCY OF EUGENCE, WHICH BY THE KEY IS 30 UNITRARY TO THE INGRMENT AND JESTICS. (2) APPERLATE CAUNGEL HAS BEEN UNITRUTH FU/ IN THE RECURS, IF YOU SEE PREE [11] OF ANEILATES BRIEF ON PARA GRAPH 49, HE STATES: AFTER THE TRIAL CINEF EXCUNGED CERTAIN EUGENCE OFFERED BY THE DEFENSE. CAUNGEL FAIED TO MALE AN OFFER OF PERF, TO ESTABLISH THE NATURE AND AUNISURIIITY OF THIS TEUDERED EUGENCE INCLINING? (A) ALLEGED PESTINGS BY CUNPLANNANT ON FACEBRE (IS R R (C) 103); (B) ALLEGED PESTINGS BY CUNPLANNATS PROTHER ON FACEBRE (IS R R (C) 202); (C) AN INCURIT INVOLVING CUNPLANNANT TOUCHING APPERLANTS BUTTICKS WITH HER FROT (IS R R (C) 81);

(b) THE TESTIMONY OF DR. JARUIS WRIGHT, PH.D. (IV RPE OR MS-JAY); (c) A PERWERD JAIL PHONE CALL BETWEEN AMPEIANT AND WITNESS ALBERT PALMER WHICH COUNSEL OFFERED IN ITS EUTHEETY (IN R R 102); (3) Now, it is cIERELY THAT APPARL COUNSEL HAS FAIEM TO REVIEN THE RECURS, ACCORDING, TO THE APPEIANTS MEMORY DUE TO DEVIAL OF TRANSCRISTS FROM APPEALRTE CONUSEL, . . AT UN TIME "HAS DEFENSE COUNSEL OFFER OR PRESENT EVIDENCE OF A PHONE CALL BETWEEN DEFENOANT AND WITNESS, OR ALBERT PALMER IN AGAITON, THE TROL JNABE AIIUING THE PROSECURR, ARS. LINDA HUGG/F, TO TAKE ME. PALMER ONT OF THE COURT FROM DURING A LINCH REENA TO SONE FROM 50 THE PROSECURR AND ME. PALMER COHLS LISTEN TO THE RECURDED JAN, PHONE CALL IN QUESTION. BY THE MAY, THE RECURS STELLS REFLECT THAT THIS EURENCE WAS TURNED AROUND OF ITS TENE CONTENTS BY THE PROJEEN FOR, AND SAND PHONE CALL WAS KEY FROM THE JURY'S EMES BECAUSE THE PROSECURR CONCRELED IT INTENTIOLATE, THEREFORE UNDERD HEX PERMET DUTY, CITED IN YEY CODE CRIM PERC. ART 2.01, WHERE IT CICERLY STATES THAT: IT SHALL BE THE PERMET DUTY OF ALL PROSECUTING ATTURNEYS, INCLUDING SPECIAL PROSECUTURES 'NO? 70' CUNUICY, BUT 70 SEE THAT JUSTICE IS MORE, THET SHAII NO?, SUPPRESS FACTS OR SERFETE WITNESS CHANGLE OF ESTABLISHING THE HUGGENCE OF THE ACCUSES, HERE, THE PROSECUTIVE WITNESS FAUVERSE EURENCE THAT IF PRESENTED WOULD HAVE MALE THE WITERENCE IN THE OUTRUNA'S REVIENCES BY BRADY V. MARTLAND 373 H.S. 85,85 S.C. 1164 (1963), BUT, DEFENSE CUNUSEL NEVER FUSHED FOR SAND PHONE CALL OR TESTIMONY WHICH FAIRS WATER EX-PARTG COMMUNICATIONS POMNITTED BY THE TROL JNABE, ALBERT, DEFENSE CUNUSEL FAIED TO PUSH FOR SAND EVIDENCE TO BE OFFERED TO THE JURY TO SHOW THAT ABREIANT WAS NO? TRYING TO CHECK AUTONE HEX HAVE THE ALBERT UNCTIM TO RECANT, AS THE PROSECUTIVE MALE IT SOMING, THE PHONE CALL WOULD HAVE CICERED THE ISSUE AND PROVIDE DIFFERENT BUT ONLY IF THE PROJEEN FOR. WOULD NOT HAVE

VIDLATED HOR PERMERY DUTY AND THE SHE PRACTES OF THE ACCUSES BY THE INTECTUAL WITHHOLDING OF MATERIAL EXCHLRA TURY EUROENCE IN FAVER OF THE ACCUSES, 20, PLEASE SEE EXHIBIT 2, 17 IS AN AFFINAL IT PROVIDED BY OR PAIMER WHICH SPERES OF THE FACTS, ACTIVNS, AND THE ABUSE OF THE PROSECUTIVE THURS A FAVERABLE WITHESS THAT COULD NOT BE CONFRONTED WITH THE TREUTH IN ACCURANCE TO THE 5th ANEXAPHENT AND THE CONFRONTATION CULUSE. HYD TRIAL COUNSEL INVESTIGATED AND SPOKE TO MR. HUGUZ MORE THAN DUTY US MINUTES ONE TIME THE SPIDAY BEFORE TRIAL AND MR. PAIMER AND LETRAL THE FACTS OF THE CASE, COUNSEL COULD HAVE OFFERED AS MATERIAL EUROENCE, BUT DUE TO HIS LACK OF INTEREST AND INVESTIGATION, IT WAS NOT POSIIBLE, IN PAVUEL V. ALABAMA 287 U.S. 45,535.C4.57, L. 224152 (932); IT HIS REEN CLEMENT STATED THAT? IF THE FAMILATION OF THE ACCUSES CASE HAS NOT BEEN BUILT THERMEN AN INVESTIGATION, THEN THE CONSTITUTIONAL RIGHTS OF THE ACCUSES HAVE BEEN VIOIATED, ACZETT. APPLIATE CUNSEL HAS OFFERED THIS POINT AS TRUE, HE HIS FUIRE TO REVIEW THE RECURS, DUE TO THE FACT THAT IT SEEMS THAT NO WHERE IN THE RECURS SHOULD REFLECT THAT TRIAL COUNSEL OFFERED A RECURDED ITAL PHONE CALI ENTIREITY, SEE EXHIBIT 2 FOR THIS POINT, BOTH CONUSELS HAVE MET THE (S)PROVIGS OF STRIEKLAND V. HASHINGTON 426 U.S. G6S, 1045, C4.2052, BOL. 224267 (1984), AND BOTH HAVE VIOIATED THE 6th ANEXAPHENT OF THE UNITED STATES CONSTITUTION, AR7 1530, SEE ALSO TIC.C.P. AR7 105 AND 1.051, BECAUSE BOTH CONUSELS PERFORMANCE HAVE BEEN UNIDISTATARLEY DIFFICIENT IN THE FACE OF THE RECURS...FURTHERMERE, IN THOUSON V. STATE 172 S.W. 3d (6) HISLENDING AND BEHYED PERUWCTHN OR LACE OF WITHOUT ORJECTION BY COUNSEL OF RECURSING UNHERMINE A FIVE 2R14L; ALSO, "UNITED STATES SUPERME COURT EMPHISTES THIS DUTY TO OR TANE AND REVIEW REIEUANT MATERIAL...PUMPE!A V. BENED 125 S.C4.2456 (E205).

(3) APPENDENT HOWERSE UNGERSZANDS THAT THIS GROWING IS AGAINST TRIAL COUNSEE, BUT, WHEN BUTH CONUSELS HAVE PROVIDED INEFFECTIVE REPRESENTATION, EITHER BY THE FILING OF PAPERS OR DEFICIENT PERFORMANCE AT TRIAL, THE COURT. OF CRIMINAL APPERLS AND ANY APPERLS COURT SHALL TEST AND RAPLHCE THE EURENCE, IN U.S. U. CRONIC, THE COURT MOUPED A (5) FIVE CRITERIA; [1] THE TIME AFTHER TO INVESTIGATE AND PREPERATION, [2] THE EXPERIENCE OF COUNSEL; [3] THE GRUNITY OF THE CHANGE; [4]THE COMPLEXITY OF POSIBLE OFFENSES AND [5] THE ACCESSIBILITY OF WITHENSES TO CUNUSEL; SEE CRONIC U. U.S. VUL U.S. HAR, BOLER ZHILST, HOTS.CYDOL. HOWEVER APPIICANT PRAYS THIS CRITERIA CAN OR WILL BE MAPPEND BY THIS COURT TO CONCHIDE IF TRIAL CONUSEL(S) MEY THE STECKMAN'S TAMMARDS OF PERIUMABLENESS, BFFICIENT AND PERFORMANCE... DUE 70 TRIAL CONUSEL NOT BEING PREPARED TO 6070 TRIAL, HE HAD NOT SPOLENT TO THE WITHENSES THE DEFENDANT PERIUMED, SUCH AS, OIE/24DETH EXTANCH, OR COMPLAINORS WITHESS, THREYING EXTANCH, (C) MR. ALERT PAYNER, (D) OR THE OTHER AIIESED VICTHM, A.H, WHOMY WAS ALGREED TO TESTIFY FOR THE STATE, THEU THE STATE DISMISSING AND CHANGE AFTER A.H. TESTIRICULAR... CUNUSEL AISU PAYERD TO CONTACT THE OFFICERS INVOLVED AND ALGWER THE PROSECUTIOR TO COMMENT ABOUT AMERIANTS SILENCE, IT'S CLEAR THAT WHEN THE DEFENDANT WAS CONFRONTED BY THE MAUOCACT OF THE PRES. ECTUR, THAT TRIAL CONUSEL WAS NOT REPAY TO DEFEND DEFENDANT. IT IS AISU STATE IN CRONIC THAT THE PRESUMPTUM OF CONUSELS ASSISTANCE IS ESSENTIAL, PERVIERS THE CONCLUSION THAT A TRIAL IS UNIOR IF THE ACCUSED IS DENIED AT ANY CULTICAL STAGE OF HIS TRIAL. (5) EN THE OTHER (6) PINTS, APPERL CONUSEL PIISED, HE IS RIGHT ABOUT TRIAL CONUSEL THAT HE SHOULD IF REPUESTED A BAIANCING TEST PRUESS, ESSENTITY

ABout paragraph (1), Kuzmich's cunuctiont for HinderinG appeffanis aperteHEvision... No WHERE IN THE RECORD DOES IT SHOW A CHLERE OF EUROING AREST or escapint of that appEItANt was EVER SEEN or FUNDO At Kuzmich's Home DURING THIS ERIGDIE, HOWEDER, THE CHLERE ARESE OUT OF ANOTHER CHLERE WHICH INCLUDED A DIFFERENT AFTERED UICZIN, SEE CAUSE NO: c.E.39,575... TAID CHERE WAS DISMISSED BY THE STATE, YET EXPANEYH KUZMICH WAS STIH ON PRUPA TONI FOR A CHLREE THAT WAS DISMISSED, Now tEAL CUNISEL SHIHAS HAVE USED THE EUIDENCE OF SAID ACCUSATION TO PRONE THAT NO CRIME HAS BEEN COMMITTEE?; OR ABREMLC CUNISEL. SEE MEDICAL REPORT HEREIN ATTACHED AS EXHIBIT Z, BUT NEITHER COUNSEL CHALIEUSED THIS EUIDENCE WHICH WAS DENIED 70 BE INTRODUCED BY THE JUOSE EVEN AFTER A.H. WAS A/QUARD 70 TESTIFY IN PRESENT CASE. At No time did Elizabeth KuzmicH HINDER defENOINT ATHER HOME HOR AVOID ABREHENYION, SHEN AS THE STATE FASTLY CHAREED, MES. KUZMICH, EIZABETH. THERE FARE, COUNSEL FAIED TO HOLD THE PROSECUTION TU A MENIMISTLIT ADVERSARIAL TESTING MAKING THE ADVERSARY PROCESS PRESUMPTINELY UNIFELABLE. SEE CROUCE U. U.S. VICH U.S. UNIF. NOIED 2057184 S.E. 2057 (PAY). ONLY WHEN SUERDUMMING CIRCUUSTANCES JUSTIFY A PRESUMPTION OF INEFFECTIVE ASSISTANCE OF COUNSEL, CAN A L.H. ANEXOANEHT CLAIM BE SUFFICIENT WITHOUT INGUURY INTU COUNSEIS ACTUAL PERFORMANCE AT TRIAL; THE SPECIAL VALUE OF THE RIGHT 70 THE ASSISTANCE OF COUNSEL EVOLAINS HAY 17 HU BEEN WUO RECODINIZED THAT THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNISEL BE MANUU U. RICHARDSON 297 U.S. 759, 771 N. 14, 25 L.Ed 763, 90 S.CE. (NY) (6970), THE TEXT OF THE SIXTH ANEXOANENT ITIEUF SUBGEST AS HOW MUCH THE ANEXOANENT REWUINES, NO? MERELY THE PROVISION OF CUNISEL TO THE ACEUSED, BYT "ASSISTANCE" WHICH IS TO BE FOR HIS DEFENSE, THUS THE CURE PURPOSE OF

CHUNSEL GRIAFENTERS WAS TO ASSURE ASSISTANCE AT TRIAL WHEN THE ACKUSES WAS CONFRONTEN WITH ROTH THE INTEICACIES OF THE LAW AND THE ANALYSY OF THE PUBLIC PROSECUTOR, UNITED STATES V. ADD US U.S. 200, 709, 77 L. ER 24 GH1 93 S.C. $42768(973)$ , IF NO ACTUAL ASSISTANCE FOR THE ACKUSES DEFENSE IS PROVIDED, THEN THE CONSTITUTIONAL RIGHT GUARENTEE HAS BEEL UIDIZED. (6) HAS CCHUSE/ INVESTIPATES AND PREPARES WITHESSES SUCH AS EIFERENT KUZMICH, ALBERT PAYNER, THE DEFENDAN?, THE ACKUSING WITHESS, POLICE AFFICERS, ETC... AND HAS TRIAL CHUNSE/ NOT AIDOLES THE STATES PROS. ECUTOR TO WITHYL/AS EVIDENCE ANDY WITHESSES FROM THE DEFENSE, THE OUTCURE WUULD MALE BEEN DIFFERENT. (7) TRIAL CCHUSELS FRANQUIENT CONCEP/MED IT OF MATERIAL EVIDENCE, PROVIDED AN UNITIST OUTCOME, AND HIS FAILURE TO ESECUTE ANY INVESTIGATION IN THE CASE PROVIDED THE UNITIST RESULT AND THE UNIFERMES IN JUSTICE APPEITHUY WAS DEALT AND RECAUSE TRIAL CCHUSEL FURGOT THAT THE UNIFERENI PROCESS PROTECTER BY THE 5th AMENDMENT RECURGES THAT THE ACKUSES MALE CCHUSE/ ACTING IN THE ROLE OF AN ANALCATE, SEE ANDERS U. CALIFERNAL SEE U.S. 738,743 .18 L.ED 22493, 07 S.C. 1396 (1967), THE RIGHT TO EFFECT IUE ASSISTANCE OF CCHUSEL IS THE RIGHT OF THE ACKUSES TO RECAUSE THE PROSECUTIONS CASE TO SURVIVE THESE HYMMPHY OF MEMORIAFR/ ANAERSARIAL TESTING, WHEN A TRUE AMERCARIAL CRIMINAL TRIAL HAS BEEN CUNDUCTED, EVEN IF REFENSE CCHUSE/ MAY HAVE BEEN MALE DEMOSTRANOIE ERRORS, THE KING OF TESTING EVALISEUED BY THE IGUSAL AMENDMENT HAS ACKUSES, BUT IF THE PROCESS LOSEN CHARACTER AS A CONFRUITATION BETWEEN AQUERINAL [SUCH AS IN THE PRESENT CASE] THE CONSTITUTIONAL GUARENTEE IS ---

is uiofated. therefure, has trial convoxel needs the state to aducesmert testinf in the evidence of eunflorped the sufficiency of the same, seE teX. Rules of evidence. 403, or REACHED, the trial count to EWHTHE IN THE PAHNCIHT PROCESS, THE EXTEINE OF THE PROCESSING WALLD HACE DIFERENT AND THERE IS A STEING PROBABILITY THAT HAS CONVSE/ACYED AS aUURGARY AND NoT AS A REIEND OF THE CULRT, THE EUTCHHE WALLD HACE BEEN DIFERENT, nIso, HAS TRIAL CONVSE/ BASED THE ENTIRE CASE ON A SOI10 FOLWORTION AS INVESTIGATION AS CITED IN DEWELL U. ALAIMAM 287 U.S.45-53, S.C.57, E.C.158, (1952), THE CONSTITUTUAL RIGHTS OF THE ACKUSED TO EFFECTIVE ASSISTANCE OF CONVSEL WALLD NoT HACE BEEN UIOfated. (8) If CONUSEL WALLD HACE INVESTIGATED OR DIFERENTtY REMS THE RECURD, HE WALLD HACE KNOWN THAT APPE/ANT CERENTY INVU kED HIS STH AMENAMENT TO INVESTIGATUR C. FHEVITES ON 4-6-11, THEREFURE, HE FAIRED TO OBJECT TO THE IMPRENOR IMPERCHISED/EC COMMENTS MADE BY THE PROSECUTUR DURINF TRIAL ABOUT APPE/ANTS SILENCE, THEREFURE, NOT ACKNOWLebINF THAT THE APPE/ANT WAS DEPRUED OF THE FEDERAL CONSTITUTICAL PROTECTED RIGHT TO BE EFFECTIVELY REPRESENTED BY CONVSEL WALLD BE CONSIDERED A FUNDAMENTAL AISCARRAGE OF TUSTILE, RECASSE APPE/ANT IS IN CUSTUSY IN UIO/ATVUU OF THE LAWG OF THE COMMON WELTHY AND IN UIO/ATVUU OF THE LAWG OF THE CONSTITUTION OF THE UNITED STATES AND HAS HE NOT DERIVED, BEEN DERRUED, OF HIS RIGHT TO A FAIR AND IMPRETAE TRIAL, THERE IS A TERMENOENS PROBABILITY THAT NO REASONABLE JURUR OR FACT THOER WALLD OF FOLNO HIM EWITY OF THE UNIVERSITY OFFEVSE BEYOND A REASONABLE DULRT.

PRAYER FOR RELIEF

For the reasons stated withow, it is respectfully submitted that the Court of Criminal Arbeits of Texas should grant this petition for biscretionary Reuiew - In desus Name!

Certificate of Source

The unabesished areilant nereary certifies that a true and correct hand written copy of the pretional permition for biscetionark Reuiew has been mailed, u.s. maild postage reftain, to the office of the clber of the 11 th Court of Amebals, Estilum, Lown 7, Texas on or about this 25 th day of sept. 2015.

EYHIBIT

STATE OF TEXAS COUNTY OF MISLAND, TX

"Indeed no more than affidavits are necessary to make Prime Facie Case", United States-vKis, 685 F.2d 526, 536 (7th Cir. 1981), 50 U.S.L.W. 2169; S. Ct. March 22, 1982.

The undersigned affiant, Albert A. Palmer, herisinafter Affiant, does solemnly swear, declare, and state as follows:

1. Affiant is competent to state the matters set forth herein.
2. Affiant has personal knowledge of the facts stated herein.
3. All the facts stated herein are true, correct, and complete, admissiblé as evidence, and if called upon as a witness, Affiant will testify to their veracity.
4. The purpose of this Affidavit is not to intimidate, harass, or cause problems in any way, but, only to be used in an Evidentiary Hearing upon Bench Werrant.

PLAIN STATEMENT OF FACTS

When I was on the witness stand, during Robert Munoz's Trial No. CR38.946. The following questions and answers occurred between the prosecutor, Mrs. Laurs Nodolf and I, to the best of my knowledge as follows:

NODOLF: "Mr. Palmer. Isn't it true, that during one of your conversations with Mr. Munoz while Mr. Munoz was in jail [at Midland County, Texas], Mr. Munoz asked you to have Elizabeth Kuzmich [the alleged victim, Maryann Kuzmich's mother], yecor-dod so that Maryann could recant"?

MR. PALMER: "No Ma'am". NODOLF: "Mr. Palmer, [at this point, Nodolf pulls out a CD that the defense did not know existed, without objection by defense counsel, Mr. Wayne Frost]. I have a recording between you and Mr. Munoz, would you like to hear it?" MR. PALMER: "Yes Ma'am". JUDGE: "How long will it take to listent to the CD?" NODOLF: "Your Honor, it's almost lunch time, [it's about 11:35 a.m. or so). I can take Mr. Palmer to my office during lunch and allow Mr. Palmer to listen to the [recorded jail phone call]. CD there."

JUDGE: "OK, we we'll do that!" NOTE: What Mr. Munoz asked me to do is to have Elizabeth record Maryann to "ReAdmit", that Robert Munoz never touched her, since Maryann had told Elizabeth in the past and before trial, that, Mr. Munoz never touched Maryann .... So, Mrs. Nodolf took me to a room so she and I could listen to the recorded jail phone call between Mr. Munoz and me.

I believe, I remember Mrs. Nodolf said she could charge me with something or hold me in contempt for denying the conversation. I don't believe I was denying a conversation with Mr. Munoz, I believe I was denying what Mrs. Nodolf was alleging, that Mr. Munoz wanted me to get Elizabeth Kuzmich to record Maryann to allegedly "Recant", when Mr. Munoz was actually asking me to have Elizabeth Kuzmich record Maryann Kuzmich to "Recant"

If this CD, that was brought out in Court by Mrs. Nodolf would be listened to in its entirety, I believe the truth of Mr. Munoz's intentions to get Maryann Kuzmich to re-admit, Mr. Munoz never touching Maryann, not Mr. Munoz ever asking Maryann Kuzmich to "Recent", as Mrs. Nodolf allured in front of the judge, jury and the entire court. This should all be in the trial transcripts during my testimonial and cross-examination by the State - Mrs. Nodolf. To the best of my knowledge, I don't believe anyone else was allowed or heard the true contents of the recorded jail phone call between Mr. Munoz and Me.

Albert A. Palmer

STATE OF TEXAS COUNTY OF ECTOR

SUBSCRIBED, SMORN TO, AND ACKNOULEDGED before me on this ETTI day of EETERMER , 2015.

METARY FOR THE STATE OF TEXAS

My Commission Expires: FEBRUARY 03,2015

CLEO PARRA SOIO Noray Public State of Texas My Commission Expires February 03, 2018

Page 1 of 2

GILDREN'S SAFE HARBOR

REFERRAL FORM

| Date Referred: $11/1/2011$ | | Referred by: CSH Staff S\LE CPS Name: Key Thenwhanger | | | | | | | :--: | :--: | :--: | :--: | :--: | :--: | :--: | :--: | | $◻$ Counseling $◻$ Family Advocate Program $⊠$ Sane Exam | | | | Any (heandhanger Law Enforcement Officer Signature to Authorize Exam | | | | | Child/Garegiver information | | | | $◻$ Spanish Speaking | | | | | Child's Name: | Alyssa Hulsay | | | Age: | 9 | DOB: | 7/15/2002 | $\&\text{M}\&\text{F}$ | | Child's SSN: | | | | Ethnicity: $⊠W◻H◻B◻A◻$ Multi $◻$ Other | | | | | Sexually Acting Out Behaviors: $◻Y◻N$ | | Physical or Mental Conditions (specify): | | | | | | | Parent/Guardian Name: | | Brett Hulsay | | Age: | 42 | DOB: | 6/18/1989 | $\&\text{M}\&\text{F}$ | | Child Residing With: | | Brett Hulsay | | Relationship to
Victim: | | Father | | | Address: 1904 Miranda Drive | | | | | | | | | City/State/Zip: | Cleveland, TX 77328 | | | | | | | | Home Phone: | 832-294-3705 | | Cell Phone: | | Work Phone/Ext: | | | | Referral Summary | | | | | | | | | AP's Name: | Robert Munoz | | | Age: | 40 | DOB: | unknown | $\&\text{M}\&\text{F}$ | | Relationship to Victim: | | Known Unrelated | | | | Has AP Been Arrested: $◻Y⊠N$ | | | Date of Forensic Interview: 8/24/2011 | | | | Date of Incident: 5/1/2011 | | | | | Confirmed Outcry: $⊠Y◻N◻$ Unknown | | | Type of Abuse: $⊠$ Sexual $◻$ Physical $◻$ Other Please Specify: | | | | | | Type of Sexual Abuse: $◻$ Exposure $◻$ Pornography $⊠$ Fondling: $◻$ Over Clothes $⊠$ Under Clothes | | | | | | | | | Penetration: $⊠$ Digital $◻$ Oral $⊠$ Anal $⊠$ Vaginal $◻$ One Time Occurrence $⊠$ Multiple Occurrences | | | | | | | | | Case Summary: Alyssa said that she would spend the night at her friend's house that her dad would touch her on her "private area". She said that he would put his finger into her "private area". She said that it happened four different times. She said she told her mother about it but her mother did not call the police. The child is living with her father. The incident occurred in Midland, TX | | | | | | | | | | | | | | | | | | | | | | | | | | | CPS Agency/County: | | | | LE Agency/County: Midland PD | | | | | CPS Case #: | | | | Law Enforcement Case #: | | 1108-16024 | | | CPS Caseworker: | | | | Law Enforcement Officer: | | Key Thenwanger | | | Cell Phone #: | | | | Cell Phone #: | | | | | Office Phone #: | | | | Office Phone #: | | 432-685-7171 | | | Fax #: | | | | Fax #: | | | |

CSH Use Only

STEP 2 SEXUAL ASSAULT EXAMINATION FORENSIC REPORT FORM Please print legibly. To be filled out with medical information gathered from the patient. Please inform the patient that, should the case go to court, it may be necessary to gather additional evidence at a later time. Please fill all spaces with information or N/A.

| Name: Alyssa Hulsay | | | DOB: 07/16/02 | | Sex: Female Race: Caucasian | | | :--: | :--: | :--: | :--: | :--: | :--: | :--: | | Address: 1904 Miranda Drive Cleveland, Texas 77328 | | | | | | Phone: (832) 294-3706 | | Patient Brought in by: Brett Hulsay | | | Agency or Relationship of Escort: Father | | | | | Hospital Number: C6H 11057 | | | | | | | | Exam Date: 11/02/11 | | | Beginning Time of Exam: 13:10 | | | | | VITAL SRGNS: Time 13:10 | | Temp 90 | | | | B/P 102/60 | | Known Allergies: None | | | | | | | | Current Medications: Vitamins | | | | | | |

HISTORY OF ASSAULT: (Patient's description of pertinent details of the assault-if known by patient, such as: orifice penetrated, digital penetration or use of foreign object, oral contact by assailant, oral contact by patient) Patient states "My friends Dad touched me where I didn't want to be touched. His name is Robert Munoz. He touched my peepoe with his fingers. (patient points to female genitalia). Then he would put his fingers inside my peepoe. It happened 4 times when living with my Mom."

Date of Assault: multiple Time of Assault: varied Number of Assailants: 1

At time of example, was: Contraceptive form or spermicide present? Lubricant used by assailant? What kind? Condom used by assailant? Tampon present during assault? Patient menstruating? Assailant injured during assault? If known, where Was there penetration? Did ejaculation occur? Did ejaculation occur? At time of exam, was tampon present? $◻$ Yes 囚 No Menstruation at time of exam? $◻$ Yes 囚 No When was the patient's most recent sexual contact with a male up to 1 week prior to the assault? N/A Race of that individual? N/A If the response is less than 48 hours, inform the patient of the possibility that blood and fluid samples may be requested from that individual at a later time.

Gание Jancell Bss/em

Hulsay, Alyssa DOB: 7/15/2002 CSA: 11057 LE: $1108-16024$ COCCER: (NUSING) CESVICES

STEP 2 SEXUAL ASSAULT FORENSIC EXAMINATION Page 2

Sigaificant Past Medical History: Last normal menstrual period: Pre-pubescent Vaginal tampons used in past? N/A Contraceptives used: N/A Genital surgical procedures: None per father General Appearance: (behavior, affect) Quiet, locking down, answers questions when asked, then became

Body Surface Diagrams: Document injuries and observations on the attached body diagrams. Genital Examination: Labia Majora No trauma noted Labia Minora No trauma noted

Hymen

Vagina Cervix Perineum Arms

No trauma noted: good sphincter tone

Penis Scrotum Check for Sperm Genital Diagrams: Document injuries and observations on the attached genital diagrams. Document all diagnostic tests and treatment on medical record. Ending Time of Exam: 14:15 /STRET 13:15 / HOCRE 5 MILITT EYAM! Impressions From Exam: Sexual assault per patient history - WHAT THIS MEAN?

4 No trauma on head to toe assessment 4 No trauma on genital assessment 4 No laboratory results pending

Memorial Hermann Healthcare System Forensic Nursing Services

(Please list clothing or miscellaneous items)

PATIENT FOLLOW-UP CARE/LEGAL CHECKLIST: GYN/Medical/STD follow-up appointment Sexual assault counseling referral given Written and verbal information given to patient Medical facility received permission to contact patient $◻$ by telephone $◻$ by mail $◻$ permission not obtained Authorization for Release of Evidence to Law Enforcement Agency completed Law enforcement/Children's Protective Services notified if suspect child abuse $◻$ Yes $◻$ No $◻$ Yes $◻$ No $◻$ Yes $◻$ No $◻$ Yes $◻$ No

$◻$ aame Genell beila

Signature of Examiner

CAUSE NO. CR-38,496

| THE STATE OF TEXAS | 8 | IN THE DISTRICT COURT: | | :--: | :--: | :--: | | V. | 8 | 441st JUDICIAL DISTRICT | | ROBERT MUNOZ | 8 | MIDLAND COUNTY, TEXAS |

SEVENTH NOTICE OF INTENT TO OFFER EVIDENCE OF EXTRANEOUS CRIMES, ACTS AND WRONGS COMMITTED BY THE DEFENDANT IN STATE'S CASE IN CHIEF ON GUILT-INNOCENCE AND/OR PUNISHMENT

COMES NOW the State of Texas by and through her District Attorney and gives notice to the defendant as required by TEX. R. CRIM. EVID. 404(b) and 37.07 of the TEX. CODE CRIM. PROC. that the State of Texas intends to offer in the State's case in chief at guilt-innocence and/or punishment evidence, or for the purpose of enhancing the range of punishment, of the following crimes, acts and wrongs committed by the defendant, which may be considered extraneous, to-wit:

1. On or about September 16, 1992 in Jacksonville, North Carolina, the defendant was placed on probation for the offense of Discharge of a Weapon in the City Limits.
2. On or about June 20, 2007 in Midland County, Texas, the defendant was placed on deferred adjudication in cause number CR117131 for Assault Family Violence. The defendant had been charged with Assault Family Violence alleged in cause number CR117130. That case was dismissed when the defendant plead to cause number CR117131. During this incident the defendant was arguing with Elizabeth Kuzmich in the front yard. Irene Galvan Munoz, the daughter of the defendant, went outside

where she observed the defendant sitting on top of Elizabeth hitting her head with his hands. Ms. Munoz stated that she went to attempt to get the defendant off when the defendant pushed her away causing Ms. Munoz to hurt her right ankle whish was bleeding and bruised up when deputies arrived. Ms. Munoz then went inside and called 911 and locked her father out of the house due to him being violent. The defendant came back inside by busting in the back window and questioned Ms. Munoz if she had called the police. Elizabeth was found hiding across the street and had visible injuries.

In a field witness statement, Ms. Munoz further elaborates that she was woken up her sister because "Dad is beating up Elizabeth." The girls yelled at him to get off of her (Elizabeth Kuzmich) and they had to get a shovel to get him off of her (Elizabeth Kuzmich). In addition, Ms. Munoz stated they were terrified and the defendant threatened to whoop them if they called the police. Further, the two girls were hiding in the bathroom from the defendant and locked the door and tried not to breathe so as to stay hidden. The full contents of the statement are contained in the State's file and available for discovery. The defendant was intoxicated during the offense.

On or about January $3^{\text{rd}},2008$ In Midland County, Texas the defendant penetrated the female sexual organ of Mary Ann Kuzmich with his finger or fingers. On or about January 15, 2008 the defendant penetrated the female sexual organ of Mary Ann Kuzmich with his finger or fingers. At the time of the incidents, Mary Ann Kuzmich was a child younger than 17 years of age. These allegations appear in cause number CR38496.

1. On or about November 2, 2011 in Midland County, Texas the defendant was charged with Theft by Check which is filed by information in cause

number CR136082. 5. The defendant was on bond in cause number CR38496 and violated the terms and conditions of his bond by moving to a new address out of the city of Midland and failed to communicate with his bonding company. In addition, the defendant absconded while on release on bond resulting in a manhunt lead by the Midland County Sheriffs Department and the United States Marshall Service. The defendant was known to be in several different cities before apprehended. In addition, the defendant was aware of his warrant and failed to turn himself in. Elizabeth Kuzmich was charged with Hindering the Apprehension of the defendant and is currently on probation for that offense. 6. On or about December 2010 to May of 2011 the defendant penetrated the female sexual organ and anus of A.H and touched the breast of the said A.H. on multiple occasions. At the time of the offense the said A.H. was a child younger than 14 years of age. Those offenses are alleged in cause number CR39575. 7. The defendant has been practicing law while incarcerated in the Midland County Jail. Inmates refer to him as "the attorney". He has been accepting payments for his services in the form of commissary. 8. The defendant was married to Norma Munoz and carried on a long term extra marital affair with Elizabeth Kuzmich. 9. The during the time the defendant was in a relationship with Elizabeth Kuzmich, the defendant intentionally and knowingly hit and struck the said Elizabeth Kuzmich with his hand or hand, and pushed the said Elizabeth Kuzmich, and grabbed the said Elizabeth Kuzmich, and had a history of family violence with the said Elizabeth Kuzmich. During the

relationship with Elizabeth Kuzmich, the defendant also committed family violence against Wilson Kuzmich and Mary Ann Kuzmich by hitting and striking them, and by pushing them, and by grabbing them. The defendant was intoxicated during some of these episodes. $r_2{b}_1$ 10. The defendant has a history of substance abuse. Including marijuana use in approximately 2008 and delivering Marijuana to Tyler Kuzmich. 11. The defendant has continued contact with Elizabeth Kuzmich since his incarceration.

• 12 The defendant has threaten to kill or "take out" Elizabeth Kuzmich on several occasions during the relationship. The defendant placed both his biological children and Elizabeth Kuzmich's children in fear based on his violent nature and continued assaults against Elizabeth Kuzmich and his acts of violence against Mary Ann Kuzmich.

• On or about December 12, 2010 in Midland County, Texas, the defendant did then and there hit, strike, and push the said Elizabeth Kuzmich thereby causing her bodily injury and the defendant and Elizabeth Kuzmich were in a dating relationship. During the same incident, the said defendant did then and there push Mary Ann Kuzmich thereby causing her bodily injury. Mary Ann Kuzmich then called her sister-in-law who in return contacted the police. The defendant was gone upon arrival.

• The defendant has a history of being provocative towards women while intoxicated. This includes an incident where the defendant grabbed the hand of Christina Reyes and attempted to force Ms. Reyes to touch him.

• The defendant did then and there penetrate the sexual organ of Christina Reyes with his finger in Midland County when the said Christina Reyes was 18 years of age. During this incident, the defendant was saying things like, "doesn't that feel good?" and "you know you want it".

1. The defendant and Christina Reyes were in Plainview, Texas for work. Another individual by the name of Ally had accompanied them. The three went out for drinks the night before. In the morning, all three were late getting around. Ally and Ms. Reyes were staying in a room together. The defendant was staying in an adjacent room. The defendant said he was going to go and get breakfast and set up and for Ms. Reyes to use his shower so she could get ready. While in the shower, the defendant came into the bathroom and tried to pull the shower curtain back. Ms. Reyes told him to leave and he did. The defendant then came back into the bathroom and tried to look at Ms. Reyes again. The defendant was told to leave the bathroom and he did. Ms. Reyes exited the shower and had a 4 Hr Wr 1 towel wrapped around her head and body. Ms. Reyes then ended up on the

Cleobus. bed. The defendant proceeded to put his mouth on her genitals. Ms. Reyes kicked the defendant in the nose. He grabbed her towel on her body and put it to her nose. She then grabbed the towel from her head and ran to her room next door. The defendant had made many comments that he wanted to "eat her out". Ms. Reyes was 21 when this happened.

JUNY 5 Hr. 17. The defendant exposed his penis to Christina Reyes on several occasions. 122421224 These events all took place when Ms. Reyes was over the age of 17. 18. While pregnant with her son John, Christina Reyes was staying at the home of Elizabeth Kuzmich. Ms. Reyes was staying in the bedroom of Mary Ann Kuzmich. While staying there, the was in the bed sleeping when she felt a hand go up her shorts and squeeze her bottom. She woke up to find the defendant standing near the doorway. 19. After being arrested for the above styled cause, the defendant made the statement, "if you say anything, I'm gone" and "if you say anything, I am going to eye fuck you in court." Ms. Reyes understood this statement to

mean he would go to prison is she ever talked. 20. Christina Reyes confirmed that there was a substantial amount of physical abuse between the defendant and Elizabeth Kuzmich.

WHEREFORE, PREMISES CONSIDERED, the defendant is hereby notified that at the trial of the above entitled and numbered cause, the State intends to introduce in evidence at the State's case in chief on guilt-innocence and/or punishment the aforesaid extraneous crimes, acts and wrongs committed by the said defendant.

CERTIFICATE OF SERVICE

I, the below signed Attorney for Midland County, Texas, do hereby certify that on the day of December 2012, I sent a true and correct copy of the foregoing NOTICE by facsimile to the Attorney of Reford for the defendant, at his office.

(432) 688-4411

03/25/11 10:26

Details Incident Number: 11-01793 Sequence Number: 2

Name: FUENTES C Date: 09:42:54 03/25/11

Narrative (See below)

Narrative: SUPPLEMENT OFFENSE:

SEXUAL ASSAULT OF A CHILD MIDLAND COUNTY SHERIFF'S OFFICE P.O. Box 11287, 400 South Main

Midland, Texas 79701 $432-688-4600$

1. COMPLAINT # 11-01793
2. NAME OF COMPLAINANT

MARY ANN WOOD KUZMICH W/F DOB 10-31-92 4400 N. HOLIDAY HILL RD. #1401 $432-557-2150$ 3. Details of Offense, Progress of Investigation, Etc.

ON February 18, 2011 I SGT. C. FUENTES, A JUVENILE INVESTIGATOR WITH THE MIDLAND COUNTY SHERIFF'S OFFICE WAS ASSIGNED CASE # 11-0192, COMPLAINT # 11-01793 IN REFERENCE TO A SEXUAL ASSAULT OF A CHILD. THE COMPLAINANT AND VICTIM, MARY ANN WOOD KUZMICH, W/F, DOB 10-31-92 REPORTED TO MIDLAND POLICE OFFICER D. STIEE THAT SHE HAD BEEN SEXUALLY ASSAULTED BY HER MOTHERS BOYFRIEND APPROXIMATELY THREE YEARS AGO AND WAS WANTING TO KNOW IF SHE COULD STILL REPORT IF. UNKNOWN AT THE TIME THAT THE INCIDENT OCCURRED IN MIDLAND COUNTY, A REPORT WAS TAKEN BY OFFICER STIEE AND THE CASE WAS TURNED OVER TO DETECTIVE ANDERSON DETECTIVE ANDERSON BEGAN THE INVESTIGATION AND FOUND THAT THE INCIDENT OCURED IN THE COUNTY ( SEE REPORT WRITTEN BY DETECTIVE ANDERSON ). SOON AFTER THE CASE WAS TURNED OVER TO MIDLAND COUNTY INVESTIGATION DIVISION.

ON February 24, 2011 I SGT. FUENTES WAS FINALLY ABLE TO MAKE CONTACT WITH THE VICTIM MARY ANN WOOD KUZMICH. MARY ANN STATED THAT SHE COULD GIVE ME A STATEMENT ON MARCH 2, 2011 AFTER 1 P.M. AT LEE HIGH SCHOOL.

ON MARCH 2, 2011 AT APPROXIMATELY 1:25 P.M. I SGT. C. FUENTES MET WITH THE VICTIM/ COMPLAINANT AT ROBERT E. LEE HIGH SCHOOL. MARY ANN STATED THAT SHE 3-7HAD BEEN SEXUALLY ASSAULTED OR January OF 2008:BY HER MOTHERS BOYFRIEND ROBERT MUNOE, H/M DOB 2-3-69 WHILE THEY HAD STATED THE NIGHT OVER AT ROBERT'S HOUSE LOCATED AT 4101 SCR 1184, WITH HER MOTHER ELIZABETH CANTU KUZMICH, W/F, DOB 6-29-65. MARY ANN STATED THAT HER MOTHER, ELIZABETH, AND ROBERT HAD BEEN DRINKING THIS NIGHT. MARY ANN STATED THAT IT HAD GOT LATE SO HER MOTHER DECIDED TO STAY THE NIGHT AND MARY ANN SLEPT ON THE FLOOR IN THE LIVING ROOM. MARY ANN STATED THAT WHILE SHE WAS ASLEEP, SHE WAS AWARENED BY FEELING SOMETHING TOUCHING HER THIGH. SHE (PEREED AND SAN THAT IT WAS HER MOTHERS BOYFRIEND ROBERT MUNOE.

1. P. 12. SGT. OCCUERED SAN 2207-1179AN 2008

MARY ANN STATED THAT HE CONTINUED TO MOVE UP HER LEG UNTIL HE HAD REACHED HER VAGINA. MARY ANN STATED THAT " HE HAD PUT HIS FINGERS CHSTDE ME:". I THEN ASKED MARY ANN JUST TO BE SURE IF ROBERT HAD PENETRATED HER FEMALE ORGAN WITH HIS FINGERS, MARY ANN STATED " YES " AS SHE WAS CRYING. MARY ANN STATED THAT HE HAD ATTEMPTED AGAIN WHILE SHE STAYED AT 5320 SHADY BEND COURT WHILE SHE WAS ASLEEP AGAIN. MARY ANN STATED THAT SHE KNEN WHAT HE WAS TRYING TO DO SO SHE BEGAN $\to$ STRETCHING AS IE SHE WERE WAKING UP. THIS STARTLED ROBERT AND HE LEFT HER ROOM. MARY ANN DID STATE THAT SHE HAD TOLD HER MOTHER ELIZABETH ABOUT THE FIRST INCIDENT THE MORNING AFTER. MARY ANN STATED THAT HER MOTHER GREW UPSET AND CONFRONTED ROBERT ABOUT IT. MARY ANN STATED THAT ROBERT HAD DENIED IT RUT THAT $\to$ IE IT DID HAPPEN HE DID NOT REMEMBER BECAUSE HE WAS DRUNK. ( LISTEN TO AUDIO FOR COMPLETE DETAILS ). ON MARCH 7, 2011 I SGT. C. FUENTES MADE CONTACT WITH ROBERT MUNOZ WHO $\to$ (1) STATEDH THAT HE WOULD GIVE A STATEMENT ON MARCH 9, 2011 AT APPROXIAHTELY 2 P.M. . ON MARCH 9, 2011 I SGT. FUENTES WAS CONTACTED BY ROBERT MUNOZ AND WAS ADVISED THAT HIS LAWYER DID NOT WANT HIM TO SPEAK WITH ME WITHOUT HIM. MR. MUNOZ STATED THAT HE WOULD CALL ME AND RESCHEDULE AN INTERVIEW AT A LATER DATE WITH HIS LAWYER.

THIS CASE IS TO TURNED OVER TO THE DISTRICT ATTORNEYS OFFICE TO BE PRESENTED BEFORE THE GRAND JURY. NO FURTHER. 4. Deputy making report, Badge#, Section, Date SGT. C. FUENTES, 212, CID, 3-25-11 (2) TRADE IT SCHINO.

WALY NOT TEL MEN IF ZAN MURPHO ABOUT? (3) STRETCHING, ASIE WAKING, $W$ , WIIY NOT HELS, SERGAN, KICR.

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| PASSENGER NAME | | Seats | | :--: | :--: | :--: | | ELIZABETH C KUZMICH | | 17A I Confirmed | | QARY ANN WOOD KUZMICH | | 17B I Confirmed | | WILSON RUDOLPH WOOD KUZMICH | | 17C / Confirmed | | Airline Reservation | | | | Code | CENEXS | Duration | | Status | Confirmed | Class | | Aircraft | EMBRAER JET | Cute | | | | Stop(s) | | Smoking | No | Distance (in Miles) | | | | |

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Opinion filed June 30, 2015

In The

(Fleventh Court of &ppeals

No. 11-13-00139-CR

ROBERT MUNOZ, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CR 38,496

MEMORANDUM OPINION

Robert Munoz appeals his convictions by a jury for two counts of sexual assault of a child younger than seventeen years of age. Tex. Penal Code Ann. § 22.011(a)(2)(A), (c)(1) (West 2011). The trial court assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal justice for a term of ten years on each count with the sentences to be served consecutively. Appellant brings four issues on appeal. He argues in his first three

issues that the trial court erred when it admitted the following evidence: (1) testimony that a witness had previously been convicted of hindering Appellant's apprehension, (2) testimony concerning Appellant's violation of his agreement with his bail bondsman, and (3) testimony of Appellant's pre-arrest silence. In his fourth issue, Appellant asserts that he received ineffective assistance of counsel at trial. We affirm.

Background Facts

M.A.K. was fifteen years old at the time of the conduct charged in the indictment. She testified that her mother, Elizabeth, worked with Appellant at Prepaid Legal Services. Although Appellant was already married with children, Elizabeth and Appellant began a romantic relationship. Elizabeth would bring M.A.K. and her younger brother, W.W.K., over to Appellant's house to "hang out and go to the movies and just be around each other." Occasionally, M.A.K. would stay the night at Appellant's house with Elizabeth and W.W.K. Elizabeth would sleep with Appellant while M.A.K. and W.W.K. would sleep on a pallet in the living room.

Elizabeth, M.A.K., and W.W.K. stayed at Appellant's house during the 20072008 Christmas vacation. The night before returning to school, M.A.K. woke up in the middle of the night because she "felt pressure on [her] leg. It felt like -- it felt like a hand on [her] leg." M.A.K. felt the hand on her upper thigh, and the hand moved up her leg, under her shorts. M.A.K. said that she felt the hand go under her underwear and penetrate her in her "no-no spot." M.A.K. testified that it was Appellant's fingers and that he moved his fingers "in and out and around." M.A.K. then turned over and began to hyperventilate. Appellant ran into the kitchen, and

Elizabeth came out of the bedroom. Elizabeth told M.A.K. to "shut up and go to sleep because [she] had school the next morning."

The next morning, M.A.K. told her mother that Appellant had touched her. Elizabeth got upset and told M.A.K. to shut up and go to school. When M.A.K. arrived home from school, Elizabeth confronted her in the presence of Appellant and asked if what she had said was true. M.A.K testified that, when she answered in the affirmative, Appellant said, "If I did do anything, I didn't mean to." M.A.K. then left the room at the request of Elizabeth. A week later, M.A.K. was sleeping at her house when she was awakened by a hand on her thigh. She "felt a hand move up [her] leg and under [her] underwear, and his fingers penetrated [her] no-no spot." M.A.K. turned over, and Appellant ran from the room. M.A.K. did not tell her mother about the second time "[b]ecause she didn't believe [M.A.K.] the first time." M.A.K. did not report the incidents to the authorities until December 2010. M.A.K. called the police to report that Appellant had assaulted her mother. While M.A.K. was talking to the police about the assault on her mother, she also told them about the sexual assaults that Appellant had committed against M.A.K.

At the time of trial, the romantic relationship between Elizabeth and Appellant continued to exist. Elizabeth was called by the State as a witness. Elizabeth's testimony supported Appellant's position at trial rather than her daughter's allegations. With regard to the first incident, Elizabeth testified that M.A.K. told her that Appellant had touched her. However, Elizabeth said that she "confronted them, and [M.A.K.] said it wasn't true." Elizabeth also denied that she fought with Appellant the night M.A.K. called the police. Two weeks prior to trial, Elizabeth recorded M.A.K. in an effort to get her to recant.

Analysis

Appellant's first three issues address the admissibility of evidence at trial. We review a trial court's ruling on admissibility of evidence for an abuse of discretion.

See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).

In his first issue, Appellant argues that the trial court erred when it permitted the State to question Elizabeth about charges filed against her for hindering Appellant's apprehension. The prosecutor initially asked Elizabeth, "You love the Defendant as much as you love your children; isn't that correct? . . Isn't it true you went to jail for the Defendant?" Appellant's trial counsel lodged a general relevancy objection to these questions. The prosecutor responded that "[w]e're showing it for the motive and bias of the testimony of the witness." The trial court overruled Appellant's objection but instructed the jury to only consider Elizabeth's responses for the purpose of showing the motive and bias of the witness. When asked by the prosecutor if she had gone "to jail for the Defendant," Elizabeth responded, "They put me in jail." The prosecutor then asked Elizabeth, "Did you go to jail for the offense of hindering apprehension, the apprehension of the Defendant?" to which she replied in the affirmative. Appellant's trial counsel did not lodge an objection to the prosecutor's subsequent question that identified the particular offense for which Elizabeth was incarcerated.

Appellant contends that the subsequent identification of the offense was cumulative of the previous evidence of Elizabeth's motive or bias. He additionally contends that this evidence was unfairly prejudicial under Rule 403 and that the "impact of this cumulative evidence was that jurors could wrongly infer that, as Appellant's lover, [Elizabeth] was attempting to aid Appellant in avoiding apprehension." Further, Appellant contends that the testimony shows that, if Elizabeth "was placed on probation for hindering his apprehension, then Appellant himself must have been attempting to evade apprehension - and therefore guilty of the charges." See Tex. R. Evid. 403. However, Appellant's trial counsel did not

lodge an objection to the prosecutor's follow-up question. Accordingly, Appellant's complaints on appeal were not preserved for appellate review. See TEX. R. App. P. 33.1. We overrule Appellant's first issue.

In his second issue, Appellant argues that the trial court erred when it admitted the testimony of Chris Barrientes, Appellant's bail bondsman, "about the conditions of Appellant's bond, and the reasons why the bonding company went off Appellant's bond." Appellant argues that this testimony was not relevant to the issue of Appellant's guilt and that, even if it was relevant, its prejudicial effect outweighs its probative value. Appellant's trial counsel lodged a general relevancy objection to the initial question pertaining to the conditions of Appellant's bond. The prosecutor responded to this objection by asserting that the information was relevant to a trip to Cancun that Appellant raised in his cross-examination of M.A.K. The trial court overruled this objection.

The prosecutor then asked Barrientes about the details of the conditions of Appellant's bond. Appellant's trial counsel objected on the basis of hearsay to a response wherein Barrientes stated that Appellant told the bonding company that he did not have a passport. The trial court overruled this objection after the prosecutor stated that Appellant's statement constituted an admission of a party-opponent. The prosecutor then elicited testimony from Barrientes to the effect that Appellant did not state that he had any intentions of traveling out of the country, that the bonding company would not have permitted him to travel out of the country for leisure purposes, and that the bonding company ultimately went off his bond for a variety of reasons. Barrientes also testified during cross-examination by Appellant's trial counsel that "Marshals" had shown up at the bonding company seeking information about Appellant. The subsequent questioning occurred without objection from Appellant's trial counsel.

We disagree with Appellant's contention that Barrientes's testimony was not relevant to the issue of Appellant's guilt. As correctly noted by the State, Appellant raised the matter of the trip to Cancun during the cross-examination of M.A.K. when defense counsel questioned her about a trip to Cancun in 2011. Two photographs of Appellant and M.A.K. swimming together were introduced into evidence. Defense counsel attempted to show that M.A.K. and Appellant had a close relationship even after she made allegations to the authorities. Accordingly, Appellant "opened the door" to details pertaining to the trip. See Bowley v. State, 310 S.W.3d 431, 435 (Tex. Crim. App. 2010) ("[A] party who 'opens the door' to otherwise inadmissible evidence risks the adverse effect of having that evidence admitted."). We conclude that the trial court did not abuse its discretion by overruling Appellant's relevancy objection to the details of Appellant's bond conditions regarding foreign travel.

With respect to Appellant's argument under Rule 403, this contention was not preserved for appellate review with a sufficient objection. A general relevance objection is insufficient to invoke a ruling from the trial court on whether the evidence is subject to exclusion on the ground of unfair prejudice under Rule 403. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). Furthermore, most of Barrientes's testimony pertaining to the details of Appellant's bond was admitted without objection. Accordingly, we overrule Appellant's second issue.

Appellant's third issue challenges the admission of evidence that he refused to talk to Investigator Chris Fuentes about M.A.K.'s allegations or Detective Kay Therwhanger about extraneous offenses that he allegedly committed. Citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980), Appellant alleges that his pre-arrest silence cannot be used against him because he did not testify in this case.

Investigator Fuentes testified that he called Appellant on March 7, 2011, and asked him "if he would be willing to give me a statement of his own free will."

Appellant initially agreed to give a statement to Investigator Fuentes. However, Investigator Fuentes testified that Appellant subsequently informed him that he would not give "any statement without his lawyer being present and that he would contact me back at a later time." Investigator Fuentes did not speak with Appellant again.

Detective Therwhanger testified that she called Appellant to discuss extraneous offenses involving A.H., a ten-year-old girl who testified that Appellant had touched her in a similar fashion on several occasions. Detective Therwhanger simply testified that she attempted to contact Appellant and that he declined to speak with her.

There is no evidence in the record of the date that Appellant was arrested. However, Investigator Fuentes testified that his contact with Appellant occurred prior to Appellant's arrest. Furthermore, Appellant states in his brief that his silence was pre-arrest, pre-Miranda. Miranda v. Arizona, 384 U.S. 436 (1966).

The Court of Criminal Appeals and the Supreme Court of the United States have both held that pre-arrest, pre-Miranda silence is admissible evidence against a non-testifying defendant as substantive evidence of guilt. Salinas v. State, 369 S.W.3d 176, 179 (Tex. Crim. App. 2012), aff'd, Salinas v. Texas, 133 S. Ct. 2174, 2182-83 (2013). A defendant must expressly invoke his right against selfincrimination; mere silence is not enough. Salinas, 133 S. Ct. 2183-84. While Appellant refused to talk to either Investigator Fuentes or Detective Therwhanger, he did not expressly say he was doing so based on the Fifth Amendment. Appellant simply refused to speak to them. This was not enough to invoke his rights under the Fifth Amendment and Miranda. Id. at 2182-84; Salinas, 369 S.W.3d at 179. Thus, the trial court did not abuse its discretion when it admitted testimony concerning Appellant's pre-arrest, pre-Miranda silence. We overrule Appellant's third issue.

In his fourth issue, Appellant contends that his trial counsel rendered ineffective assistance of counsel during the guilt/innocence phase of trial in seven respects: (1) when he failed to invoke Rule 403, or request a balancing test, when the State offered evidence of Elizabeth's conviction for hindering Appellant's apprehension; (2) when he failed to invoke Rule 403, or request a balancing test, when the State offered the bail bondsman's testimony; (3) when he failed to object to the bondsman's nonresponsive testimony regarding marshals coming to the bonding office to look at Appellant's file and failed to request an instruction to disregard and a mistrial; (4) when he failed to make a relevance objection to the bail bondsman's testimony regarding the reasons why the bonding company went off Appellant's bond; (5) when he failed to make a relevance objection, invoke Rule 403, request a balancing test, or make a Fifth Amendment objection to Investigator Fuentes's testimony about Appellant's refusal to give a statement; (6) when he failed to make a relevance objection, invoke Rule 403, request a balancing test, or make a Fifth Amendment objection to Detective Therwhanger's testimony about Appellant's refusal to give a statement; and (7) when he failed to make an offer of proof after the trial court excluded certain evidence. Appellant specifically cites five pieces of evidence that were excluded by the trial court, including posts by the complainant and the complainant's brother on Facebook, an incident involving the complainant touching Appellant's buttocks with her foot, the testimony of Dr. Jarvis Wright, and a recorded phone call between Appellant and witness Albert Palmer.

To determine whether Appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether Appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Wiggins v. Smith, 539 U.S. 510 (2003);

Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone $v$ . State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. In this case, the record is silent as to the reasoning behind trial counsel's actions and decisions.

The bulk of Appellant's claims of ineffective assistance of counsel are premised on trial counsel's failure to object on various grounds. When alleging ineffective assistance of counsel for failure to object, an appellant must demonstrate that the trial court would have erred in overruling an objection if trial counsel had made one. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

Many of Appellant's claims are based on the lack of an objection under Rule 403. This rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless

presentation of cumulative evidence. See Young v. State, 283 S.W .3d 854, 874 (Tex. Crim. App. 2009). An analysis under Rule 403 includes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence, and (4) the State's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).

Appellant contends that the probative value of Elizabeth's testimony regarding her conviction for hindering Appellant's apprehension was outweighed by the danger of unfair prejudice. Appellant is essentially asserting that the trial court would have erred by overruling an objection under Rule 403 to this testimony. We disagree. Under Rule 403, it is presumed that the probative value of relevant evidence outweighs any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). As noted previously, the State sought to offer evidence of Elizabeth's conviction for hindering Appellant's apprehension to show motive or bias on her part in favor of Appellant. The fact that the offense involved Appellant's apprehension for the charged offenses is not unduly prejudicial because evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989).

In his second claim of ineffective assistance of counsel, Appellant contends that his trial counsel should have objected to Barrientes's testimony under Rule 403. In his third claim, he contends that his trial counsel should have objected to the nonresponsive nature of Barrientes's response about marshals coming to look at Appellant's file. In his fourth claim, Appellant contends that his trial counsel should have objected to the relevancy of the reasons why the bonding company went off Appellant's bond. As with the case of Elizabeth's testimony, the testimony from

Barrientes that Appellant contends his trial counsel should have challenged relates to Appellant's possible flight from the authorities while the case was pending. As noted previously, evidence of flight is admissible as a circumstance of guilt. Id.; see Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (evidence of bond forfeiture may be admissible as tending to show flight). We cannot conclude that the trial court would have erred in overruling the objections that Appellant contends his trial counsel should have made to Barrientes's testimony.

In his fifth and sixth claims of ineffective assistance of counsel, Appellant contends that his trial counsel provided ineffective assistance because he failed to object under Rule 403 during Investigator Fuentes's testimony about Appellant's refusal to give a statement and because he failed to make a relevance objection, a Rule 403 objection, or a Fifth Amendment objection during Detective Therwhanger's testimony that Appellant refused to give a statement. As discussed in issue three above, it was not error for the trial court to admit the testimony concerning Appellant's pre-arrest, pre-Miranda silence. Salinas, 133 S.Ct. at 218284; Salinas, 369 S.W.3d at 179. Accordingly, the record does not demonstrate that Appellant's trial counsel's actions were unreasonable.

In his seventh claim of ineffective assistance of counsel, Appellant argues that trial counsel failed to make an offer of proof for excluded evidence, including Facebook postings by M.A.K. and M.A.K.'s brother, an incident between M.A.K. and Appellant where M.A.K. touched Appellant with her foot, the testimony of Dr. Wright, and a recorded phone call between Appellant and Palmer while Appellant was in jail.

During cross-examination of M.A.K., defense counsel attempted to question her about a Facebook post she made. The State objected on the basis of hearsay, and the trial court overruled the objection. M.A.K. then answered the question. Because no evidence was excluded, no offer of proof was necessary. Thus, Appellant has not

shown that trial counsel's actions were deficient in this regard. During crossexamination of M.A.K.'s brother, defense counsel questioned him about a Facebook post. The State objected on the basis of hearsay, and the trial court sustained the objection. The record is silent as to why defense counsel wanted the testimony concerning the Facebook post before the jury. Accordingly, Appellant's argument does not satisfy the second prong of Strickland because the record does not indicate how that testimony would have influenced the outcome. Strickland, 466 U.S. at 691. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson, 9 S.W.3d at 813.

Defense counsel attempted to cross-examine M.A.K. about an alleged incident where M.A.K. touched Appellant with her foot. The trial court excluded evidence of this specific act of physical conduct. The record does not demonstrate why defense counsel did not make an offer of proof, what the exact testimony would have been, and if that testimony would benefit Appellant. Thus, this claim is also not firmly founded in the record. Id. Appellant has failed to show that the excluded testimony would have had any effect on the outcome. Strickland, 466 U.S. at 691.

Dr. Wright, a psychologist, was called by the defense to discuss the home environment and the relationship between Appellant, his family, and M.A.K.'s family. The State conducted a voir dire examination of Dr. Wright outside the presence of the jury to determine the relevancy of his testimony. After extensive questioning by both the State and defense counsel during the voir dire examination, the trial court excluded Dr. Wright's testimony because "there's been no showing that this will assist the trier of fact in understanding the evidence or determine a fact in issue." All of Dr. Wright's testimony during the voir dire examination was included in the record. Thus, defense counsel essentially made an offer of proof of Dr. Wright's excluded testimony. Accordingly, Appellant has failed to demonstrate that his trial counsel was ineffective in this regard.

Finally, defense counsel attempted to introduce a recorded phone call between Appellant and Palmer during Palmer's redirect examination. The phone call involved the same alleged incident between Appellant and M.A.K. as noted above pertaining to M.A.K. allegedly touching Appellant's buttocks with her foot. The record is silent as to why the excluded evidence would be beneficial to Appellant or why trial counsel did not make an offer of proof. Thus, Appellant has not overcome the presumption that trial counsel's actions were reasonable. Id. at 690. We overrule Appellant's fourth issue.

This Court's Ruling

We affirm the judgments of the trial court.

JOHN M. BAILEY JUSTICE

June 30, 2015 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

NOTES

${}^1$ M.A.K. subsequently clarified her meaning of "no-no spot" as a female's genital area.

Case Details

Case Name: Munoz, Robert

Court Name: Court of Appeals of Texas

Date Published: Oct 1, 2015

Docket Number: PD-0958-15

Court Abbreviation: Tex. App.