Case Information
*1 TEXAS COURT OF CRIMINAL APPEALS I RECE~VED ~N This document contains some AUSTIN, TEXAS pages that are of poor quality OOURT OF CRIMINAl APPEALS at the time of imaging. § FEB 09 I
§ I Abd Aeom1, Clerk § EXPARTE' I Isaias Palacios Cause Nos. CR36475 & CR36477 § I § WRIT OF MANDAMUS
To The Honorable Judge of Said Court:
Comes now, Isaias Palacios, petitioner ·±n the above styled and numbered cause of action and files this original Application For Writ of Man<;Jamus, pursuant to Criminal Procedure and would respectfully Art. 11.07 Section 3(c) of the Texas Code of i show the court the following:
I. There i~ no known practice of barring non-capital state writ applicant's from filing a supplemental application. As indicated above nothing I in art. 11.0 7 res ticts an applicant from filing a supplemental argument. Tex. Rules of Appellate procedures, . .
Rule 73 applies to "postconviction r3pplications for writ of h~abeas corpus" and does not address supplemental applications. Therefore, pursuant to T.~C.C.P. art.
11.07 §3(c) petitioner moves this Honorable Court of CriminaljAppeals to grant his mandamus because there is substantial controversy· as m3terial lfacts which wiil entitle petitioner to relief as a matter of law.
II.
Petitioner filed his original writ of habeas corpus 11.07 in the 142nd Judicial District Court, Midland County, Texas.on oc about the 8/11/2014. Petitioner, Page 1
*2 I filed a .supolemental argument in support; thereof, supplementing the original
argument found in ~round (4) four, which the prosecution wit~he1d exculpatory as t·'" .. /.
well as impeachment evidence on or about the 8/22/2014. See exhibit (a) supplemental argument, which the trial court.had a :)uty to rule 'on within 135 _days which has expired as of this date. Therefore, pursuant to art._ 1!.07 §3(c), failure of the - -- i I
court to act within the allowed 35 days shall constitute a forwarding of the I . I. l l petitioner's supplemental argument to the Texas Court of Cr~~~na Appea s. ~~weyer, petitioner's case has been before the court for 1 months and s- days and he ~ 1'--- has no other adequate remedy available.
I I I .
The act sought to tx:{~~ompelled is ministerial , not discretionary in nature. T.C.C.P. art. 11.07 §3(c) requires respondent to i'inmediately transmit to the Court of Criminal Aopeals a copy of the 11.07 habeas corous "supplemental argument," any answers filed, and a certificate reciting the date upon #hicB that filing was made, if the convicting court decides that there are no issues to Je resolved. At this time there has been no cooy of the supplemental l_L 0 7 · arqumeqt, answers filed, nor · d f .l. h a certificate reciting the date upon which that ~ ~ng was tr.ansm1tte to t e Court i of Criminal Aopeals. However, had such documents been transmitted to the Court of Criminal Appeals by Respondent as required by statute, peJitioner would have -
received notice from the court.
IV . . In order to obtain mandamus relief in a criminal matter, .a petitioner must meet a two-prong test. First, petitioner must show that he has no other: adequate -
remedy to seek redress for the alleged error by the trial court. See Board of Pardons - - - - - - - - - and Parole:3 v .• Court of A£Peals,· 910 s.w. 2d 481, 483 (Tex. Grim. App_. 1995). There -· is no other remedies in petitioner's case for his suppl em en ta11 argument to be heard Page 2
I by the Court of Crinia l Appeals ,. or federal court [1] s because the trial court · is . - .
holding oe_. ti tioner [1] s supp.lemental 11.07, argument and has not made a ruling. Secondly, - . .
the act petitioner seeks to compel must be ministerial in nature under art. 11.07, it is ministerial for the trial court to rule on the 11.07 sJpplemental argument, so that the Court of Criminal Appeals can consider his claimJ. See Hilbig v. ~- · t .I . ,, th 1 _s. W. __ . __ . Moreover. ·a t eoret1.ca.L .... y c.u...:;;cre ~onary act my non e ess
McDona ld 877 , 2d 469 h become ministerial in application if the facts and circum.3tances of given case lead ! to, but one rational course of action. See Braxton v. Dunn, 803 s.w. 2d 318, 320. The -
Court of Criminal Appeals also recog:1izes a clear right to tHe relief sought as 1-
being functional equivaleni: of. a mini.steral rJCt. Holmes v. THird Court of Appeals, No. 71, 764 N. 4 slip. op at 5, 1994 WL 135476, Tex. Crim. App. ~pirl 20, 1994; _Whitsitt v. Ramsay, 719 s.w. 2d 333.
v. PRAYER
WHEREFORE, PREMISES mNSIDERED, petitioner respectfully r,equest a findino that the Respondent did not transmit docu1nents to the Co'.lrt of Criminal App:=als within a r-easonable time after th·~ date they were requested and that petitioner brought this litigation in good faith and has substantially prevailed. Petitioner prays for an order directinq Respondent to transmi tt a copy of the ln. 07 supplemental argument of habeas corpus, ~ny answers filed, and a certific:ate reciting the date upon which that ftndinq was made to the Court of Criminal App~als as directed in Article 11.07 Section 3(c) of the Texas Code of C:Limiiial -Procldures and all relief as requested, which is set out in exhibit (a).
l Respectfully Submitted ~ ~ 2/:J/2o/S- rsaias Palacio~ 1675 South FM 8525 Colorado City,l [1] Texas Page 3
- l
CERTIFICATE OF SERVICE
I Isaias Palacios, hereby certify that a true copy of the!above Application For Writ of Mandamus was served on the Clerk of the Texas Coutt of Criminal Appeals . in Austin, Texas on J day of Febcuacy ,2015, by placinq a ::::opy in
the u.s. Mail at the Wallace Unit.
I ~~
I page 4
*5 (EXHIBIT 1-a)
f ":"- FIL.ED
/ CAUSE NOS • CR 36-4 75 & CR 36-4 77 §
§ Ct:ARISSA GRANADO, ; ;: :: I ... ' IN THE DISTR:i:CT·T:·o!JRT··-FOR .. . EX parte § Isaias Palacios § l42ND JUDICIAL DISTRICT
Pro'Se Applicant
§ MIDLAND !COUNTY, TEXAS .
§ SUPPLEMNETAL 11.07 APPLICATION WITH BRIEF IN SUPI!ORT Applicant, Isaias Palacios.asks this Honorable Court to gJant his "original application" challenging his conviction in CR 36-475 and CR 36-477, or in the ! alternative grant relief based on his "supplemental applicatidn" by finding tl":le prosecution withheld favorable evidence that was material to Jpplicant's defense. Applicant requests a hearing on said matter. Applicant stands ion the arguments presented in his "supplemental application" as well as all prJvious arguments
made in his "original application."
ARGUMENT IN SUPPORT OF SUPPLEMENTAL APPLICATIO~ ! USE OF SUPPLEMml'AL APPLICATION. I. l.
There is no known practice of barring Non-capital state wrll.t app 1.cat1ons
from filing a supplemental application. As ·:indicated above ndthing in Article • 73 of the Texas Rules 11.07 restricts an applicant from filing a supplement. Rule
of Appellate Procedure applies to "Postconviction Applications' for the Writ of Habeas Corpus" and does not address supplemental applications. Rule 68.10 of the Texas Rules of Appellate Procedure allows a party to file a supplemental petition [1]
for discretionary review '!at any time when justice requires."
Page .,.;.; I '
*6 STATEMENT OF THE FACI'S I I The indictment forming the basis of the prosecution of the applicant was centered I
on a series of events, which occurred in and around an satablfshment in Midland I
known as Riley's Bar and Grill. (RR-Vol. 3, PP. 39-40, 101, 144-145, 196). On May I I . ' 25, 2009, Palacios was a customer at Riley's Bar, enjoying some drinks with his . I I
common-law wife and her mother. ( RR-Vol. 5, PP .. 83, 8 7-89) .
According to the testimony by Detective Bill Anderson, thJre was a video I
showing several male subjects scuffling with Palacios. He states, (someone)-he I
viewed the video, and knew of its existence, did not try to djwn load it, nor contact someone who could, or retrieve it. Next he did the unthinkable, he did I
not mention this video and its viewing·in his investigation relport. (RR-Vol. 5, ·I
PP. 6-14).
Palacios' mother-in-law testified that Palacios, Indian Joe, and herself were at a table; Palacios and she were playing around when Jamie Mejndez.BLIND SIDED [emphasis added] Palacios from the back, Palacios never saw it coming. Mendez and two other guys pulled Palacios around the end of the pool !table, and just kicking and whooping him. They beat Palacios in· two different points iln the bar before taking him outside. (RR-Vol. 5, PP. 31-42). 5, p. 14-25). Jamie Mendez stated, "I remember putting him down." (RR-Vol.
Steven Taft, another patron in the bar, helped assault applicant or restrain him being a former Marine and being trained in Police Apprehension! restraining techigues. I II remember the Taft stated, "After applicant got up, and·he went to the SlN look on his face, like not emotional at all, it was a blank look. And I remember that clear as day in my mind." (RR-Vol. 3 pp. 228-230). .
Cristina Franco described the incident as more of a b eat~ng than someone escorting Palacios out of the bar. She states they held Palacios down while kicking him Pabe
and when they let him up; he walked away. He was. just weird, if I had gotten a beating like that (RR-Vol. 3, pp. 156, 157 1-3).
When Palacios entered his SUV, the testimony showed that [1] he drove his SUV in such a manner that he ran into other motorcycles and vehicles [1] , subsequently pinning a woman between a truck and a motorcycle. She was able to run away after Palacios backed up (RR-Vol. 4, PP. 14-126, 78-84). !
*Pete Payan testified that, somebody hit Palacios, he fell to the ground, so i many "PEDPLE" [emphasis added] involved in it. ( RR-Vol. 4, ·p. i 11; 8-12) ; there was a bunch of "PEOPLE" on top of him, kicking him, just hitting !;im. (RR-Vol. 4, P.
12; 18-20) ~ There was a bunch of "PEOPLE" around this guy. (RR-Vol. 4, P. 13; 1-4). A· woman pushed me out of the way??? (RR-Vol. 4, P. 15; 1-5, 18-25). NO WOMAN was struck we both got out the way (RR-Vol. 4, P. 16; 9-17) . He ran into one motorcycle !
then another truck, or another motorcycle BUT DIDN'T hit any woman. (RR-Vol. 4, P. 16; 1-4).
Palacios' wife entered the SUV by diving through a windowland the two left Riley's in their vehicle traveling at a high rate of speed. (RR-Vol. 3, P. 122; Vol. 4, P. 33). As applicant was leaving Riley's Bar, Midland!Police Officer, Richard Lewis was arriving in response to a report of a disturbance at Riley's Bar. (RR- Vol. 4, PP. 178-179) Officer Lewis instructed applicant to stop his vehicle in the bar's parking lot, while at the same time observing numertus people pointing at Palacios' vehicle (RR-Vol. 4, PP. 179-180). Instead of sto¢ping, Palacios proceeded away from Riley's where upon officer Lewis activate~ his emergency equipment, hitting his siren a couple of times. (RR-Vol. 4, PP. 181-182)~ Applicant continued to ! drive from Officer Lewis traveling some ten to fifteen miles ~ver the posted speed
limit, finally stopping in the front yard of a residence. (RRtVol. 4, PP. 182-183).
I Page 3
*8 i At the time of applicant's arrest, Officer Lewis also testifi~ that he observed I
several marks on applicant's face and chest, that applicant repeatedly stated,
"They beat me up, they beat me up." (RR-Vol. 4, P. 184). At that time Officer Lewis I I arrested Palacios for evading arrest and ag-gravated assault. (1RR-Vol. 4, P. 191) •
I At trial applicant presented evidence from various witness [1] es to the effect I
that he was ·injured during the altercation at Riley's Bar befdre he entered his I vehicle and drove it. Applicant's wife, Shanna Parker, testifi [1] ed that she had left
I
Riley's to get some money, and upon her return saw three men swinging applicant
I
and throwing him out of the bar. (RR-Vol. 5, PP. 97-101). According to Ms. Parker, I these men appeared to be trying to hurt applicant. (RR-Vol. s,: P. 101). More I
specifically, Ms. Parker testified that she saw these men hitting, kicking, and I
shoving applicant to the ground. (RR-Vol. 5, PP. 105-114). SUPPLEMENTAL GROUND FOR RELIEF: The prosecution withheld exculbatory as well as impeachment evidence that was material to the applicant's defehse theory, and therefore, violated applicant's 5th and 14th Amendment Rights to the United States Constitution.
ARGUMENTS AND AlJI'HORITIES When an applicant claims that the prosecution suppressed exculpatory evidence and thereby, violated his right to due process, the applicant ~st satisfy a three- pronged test: First, applicant must show that the state failedjto disclose eviden~e, regardless of the prosecution's good or bad faith. Second, appticant must show that the withheld evidence is favorable to him. And finally, abplicant must show I.
that the evidence is material that is, there is a reasonable probability that had the evidence been diclosed, the outcome of the trial would have been different. See Exparte Richardson, 70 s.w. 3d at 870.
The UNITED STATES SUPREME COURT has consistently held that [1] a suppression or negligence of a prosecutor to learn of any evidence known to o~hers acting ~n the Page 4
*9 government·' s behalf is a due process violation under Brady standard. Standard i for review: .In Strickler y. C"..reene 119 s.ct. 1936 1948 (1999). In Bradv, this - court held "that the suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or punishment, irrespective of good faith or bad faith of prosecution." i Id. at 87, 83 s.ct. 1194. The court has since held that the dDty to disclose such
evidence is applicable even though there has been no request by the accused, United States v. Agurs, 96 s.ct. 2392 (1976). And that duty encompas~es impeachment evidence as well as exculpatory evidence. United States v. Brady, 105 s.ct. 3375 (1985)
Such evidence is material "if there is a reasonable proba~ility that, had the evidence been disclosed to the defense, the result of the prooeedings would have been differenL" Id. at 682, 105 s.ct. 3375; see also Kyles v. Whitley, ll5 s.ct.
1555 (1995). Moreover, the rule encompasses evidence "known only to police investigators and not the prosecutor." Id. at 438, 115 s .ct. 1555. In order I to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government·'s behalf in this !case, including the police." Kyles at 437, 115 S.Ct. 1555.
Ms. Thurmond, the prosecutor for the state, requested a hearing outside the presence of the jury on March 10, 2011, to preface her remarkS about Detective Bill Anderson, who was the lead detective on this case. Ms. J,urmond, states that ' a week or two before trial that Detective Anderson, made her aware that Riley's
had a camera system inside the bar, and that at one point the1e was a recording of the incident in the· bar of May 25, 2009. Anderson, told her th:at he wasn't able to download the recording of the incident, but was able to vie~ the video one time. Ms. Thurmond stated that Anderson told her that he didn •:t seize the system.
(RR-Vol. 5, P. 6, 1-8). Ms. Thurmond, admitted that she failed: to disclose to the
l Page 5
.e I I defense that at one time a video existed. However, she statedl, that she never saw I ! the video because it was never downloaded, or put into eviden~e by MPD, she admitted i
that she failed to disclose to the defense prior to trial the.existence of the video, or that at one time a video of ·the evidence existed. M~. Thurmond, stated I I
on record that she just made the defense aware of the evidenc~ this morning, and
further stated, that she's making the court aware of it as weil on the 3rd day of trial and 2 years after the incident. ( RR-Vol. 5, PP. 6, 7, ! 19-25) .
Therefore, if Detective Bill Anderson, had retrieved the ~ideo tape of the i fight, then the jury and not the detective would have had thelchance to determine who the·actual victim was in this case. Therefore, by refusinq to· try and retrieve the video, Detective Anderson not only deprived applicant of a fair trial; he placed an undue burden on the prosecution in this case. What's on the video is i
anyone's guess, but we do know for a fact that Detective Andetson saw someone scuffling with some men (RR-Vol. 5, P. 9, 18-25) However, he Ghose not to take I, the video equipment because he did not want to leave the bar without it in case Detective Anderson,
something happended:-~: ( RR-Vol. 5, P. 13, 7-l 7) • It seems th~,t had failed -co realize that something had already happenea:? Lat~r during questioning Detective Anderson was asked; "If there was a murder, would yol have taken the video?" He stated yes! (RR-Vol. 6, PP. 25, 26/23-25/1-3).
Why would Detective Anderson, take the video from one crime' scene, but not ! take it from another crime scene? However, then intentionally keep it out of his
report, but 2 years later· at the last possible minute for him,ifindsit important to disclose his information to the D.A. (RR-Vol. 5, P. 13, 18-25). Anderson's actions could fX>SSibly indicate fraud ,because the· :facts ·of· the ~matter.is· ~that.the. thoroughness of his·investigation;·depended·upon his actions·while looking - the evidence and ~nto ?age 6
*11 statements in this case. Even though, Anderson says the video'from Riley's Bar I I . was of low quality, it was still evidence and did exist and could have been shown at the trial in chief had Anderson correctly done his job and seized the equipment (RR-Vol. 6, 25, 13-15). Detective Anderson, admitted that he knew the video was I
evidence in applicant's case, but yet, relied only on witness!statements rather than to disclose it in his report;therefore, ·denying the pros1cution, applicant, I and his defense team access to the exculpatory evidence (RR-Vol. 6, P. 26, 15-25). I I Thereby, applicant has met the first prong of Brady, by clearly showing that the i
state failed to disclose evidence in his case. I However, this was evidence that~ should have been immediately disclosed by Anderson because of its probative value, it could have posJibly been used as impeachment evidence due to conflicting testimony at trial, such as Jamie Mendez, (RR-Vol. 3, PP. 198, 199) and applicant's mother-in-law, Ms. Parker, (RR-Vol. 5, PP. 32-40). Therefore, when probative force of evidence depend.s on circumstances under which it was obtained, and those circumstances raise possibility of fraud, !
which was an indication of conscientious police work will enhance probative force, but slovenly police work will diminish it for purposes :_of deterlining whether non disclosed evidence of sloppiness of police investigation is ma!terial issue as reqU.ired for Brady violation. See Kyles v. Whitley, 115 S.Ct. 1555 (199S); also see Brady v. Maryland, 83 s.ct. 1994 supra.
By clear and convincing evidence it has been shown that a tape did exist; it was kept from the defense by a member of the prosection's teamJ, and that the prosection had knowledge of it (RR-Vol. 5, P. 6, 1-20). The exbulpatory evidence, the video in question had some value as mitigating and impeach~~nt evidence.had it been disclosed to the defense due to multiple conflicting witnesses::testimonies Page 7
*12 d·uring applicant's trial about what took place at Riley's Bar. I Therefore, Detective . I Anderson's assumption to rely on the truth and accuracy of w1tness statements was
I
error and;therefore, not to disclose thisexculpatory. favorable, and material I evidence denied applicant of a fair trial and that within its~lf w<~ harm (RR-Vol.
6, P. 26, 15-25). Thereby, meeting the second prong of Brady, las applicant has I I
shown that the withheld evidence was favorable to him for mitigating and impeachment I
purposes.
In conclusion: Evidence which the government has failed tl disclose to a I d~.!fendant will satisfy the "materiality" test of Brady. Therefore, the question is not whether a defendant would more than not have received a different verdictwi'.tn: the evidence, but whether in its absence the defendant receiv1 a "fair trial." However, what should be understood here is, that a trial resulting in a verdict . worthy of confidence, "reasonable probability" of a different•result is accordingly
s own wen t e government's ev1 ence suppress1on un erm1nes con 1 ence 1n t e outcome of the trial. See Kyles v. Whitly s.ct. 115 473 Bagly United States v. u.s. 667, 680 (1985); United States v. Aqurs [1] 1556 (1995); h h h ·d · d · u.s. I f'd 97 I 107 (1976); · h Brad:;t v. 1 Mar~land 373 u.s. 1963); 83 943 s.w. and Exr2arte Mowbra:;t [1] 2d 461, 466 (Tex. Cr. App. 1996).
However, it is clear from the record that Detective Bill Anderson's actions completely undermined confidence in the outcome of applicant's trial in chief, when he failed to disclose and make available for inspection ~aterial, exculpatory evidence, (video tape) to the prosecution and to applicant and his defense team. This ! disclosure would; therefore, have raised an opportunity for applicant to attack the
thoroughness and good faith of the investigation, and would a+so have allowed . I Page 8
*13 ..
I I applicant the oppurtunity to question the probative value of the video tape, which I I should·have been.crucial physical evidence in the trial in chief because Detective· !
Anderson,:failed to disclose the video, but was allowed to te~tify to its contents at trial ( RR-Vol. 5, PP. 6-14) . See Kyles v. Whitley, ll5 s .ct. 1555 ( 1995 );. where the defendant was not given the opportunity to question the ptobative value of physical evidence in his case.
Therefore, however long the prosecution knew about the tape was irrelevent, the fact that the prosecution, and members of their team knewlaffected applicant's trial and the outcome of his trial was tainted by this failure of disclosure. Thereby, applicant has clearly met the third final prong of Brady, and suppression of evidence in his case undermined confidence in the outcome of his [1] i by showing that the trial. Exparte Richardson, 70 S.W. 3d at 870; also see Brady v. Maryland, 373 u.s.
.§1 (1963).
PRAYER WHERE~RE. PREMIS CONSIDERED, applicant respectfully request that this Most Honorable Court consider the ground in this supplemental applJcation in relation to ground 4 and the other grounds detailed in his origin3l apdlication filed on August 11, 2014, and applicant prays that this court grant hij relie± requested here and in his original prayer.
!
Page ~L
(EXHIBIT 1-b)
I COURT OF CRIMJNAL APPEALS OF TEXAS ·~ APPLICATION FOR A WRIT OF HABEAS CORPqs SEEKING RELIEF FROM FINAL FELONY CONVICTION . UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 .
. INSTRUCTIONS '
I. You must use the compJete form, which begins on the following page, to file an application for- a writ of habeas corpus seeking relieHrom a t1naffelony conviction f~ ... · - · - - - 1:'· . .!:·.\. under Article 11.07 of the Code of Criminal Procedure. (This fo~m is not for dt~ath
penalty cases, probated sentences which have not been revoked, or misdemeanors.) The district clerk of the county in which you were convicted will ~ake this form 2.
available to you, on request, without charge. \ i ' ·. 3. You must file the entire writ application form, including those sections that do not. · · apply to you. If any pages are missing from the form, or if the qu~stions have been ... h ..... -~·. -·· ,<;.: renumbered or omitted, your entire application may be dismisscJ as non-compliant: 4. You must make a separate application on a separate form for each judgment of
conviction you seck relief froln. Even if the judgments were enteted in the same court on the same day, you must make a separate application for bach one. ·· •
..... Answer every item that applies to you on the form. Do not attach; any additional 5 .
.. ·.:· pages for any item. 6. You must include aU grounds for relief on the appl~cation form as providt~d by the
instructions under item 17. You must also briefly summarize the \facts of your claim on the application form as provided by the instruction~ under item 17. Each ground shall begin on a new page, and the recitation of t.he facts supporti~g the ground shall be no longer tban the two pages provided for the claim in the fonr.
7. Legal citations and arguments may be made in a separate memor~ndum that complies with Texas Rule of Appellate Procedure 73 and does notlexcecd 15,000 ... w~_r:_<ts Jf. ~-41-'~P.!It.~r~gen~r.~~~d Qf. .. S .. Q.p3gesJf.not.... .... , ... , .. , , . ....... - «< ..... 1 ............. ~~· .. ···-·~--·- ........... .
8. You must verify the application by signing either the Oath Before Notary Public or
the Inmate's Declaration, which are at the end oftbis form on pages ll and 12. You may be prosecuted and convicted for aggravated perjury if you m~ke any false statement of a material fact in this application. \
9. When the application is fully completed, ,mail the original to the district clerk of the county of com'iction. Keep a copy .of the application for your reco·rds. You m~st notify the district clerk M the county of conviction of an~ change in
10. ·I
address after you have filed your application.
Rev. 01/14/14 *15 : I Case No.
(The Clerk of the convicting court will till tillS hne m. ) [1] ! I I lN THE COURT OF CRIMINAL APPEALS OF TEXt\S
APPLICATION FOR A WRIT OF HABEAS CORPlfS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE. ARTICLE t 1.07 ' - i NAME: Isaias L. Palacios
DATE OF Bl RTH: ....:2::.!/....:0:..:6:.!./-=1:.:9...:.7....:4 ____________ ; - - - - - - - - PLACE OF CONFINEMENT: TDCJ- ID Wallace Unit
TDC.J-CID NUMBER: #1709341 Sl D NUMBER: ___;;..U=n=k=n;...;;;o"""'w'""'n'------ (I) This application concerns (check all that apply):
iXI a conviction 0 parole
0 a sentence 0 mandatory supervision f . • • time credit 0 out-o -ttme appea or petltton .or &'
discretionary review I (2) What district court entered the judgment of the conviction you w~nt relief from'! i
(Include the court number and county.)
142nd Judicial District, Midland County, Te~as (3) What-was-th'e case number in the trial court? I·
CR-36,477 and CR-36,475 (4) What was the name of the trial judge'!
Honorable George D. "Jody" Gilles
. ' it
[
I Effective: Januarv 1, 2014 ' ' '
L Rev. 01!14/14 " t' ' r··
i (5) Were you represented by counsel? If yes, provide the attorney's ~a me:
Jeffrey T. Robnett, Attorney At Law (6) What was the date that the judgment was entered'? , ....... . ' '))~""· ,·. : .. ·:·!'
March 24-·· ·201-1- · · [4] - - · •
(7) For what offense \\'·ere you convicted and what was the sentence?
Two Counts of Aggravated Assault, 20yrs. If you were sentenced on more than one count of an indictment iJ the same court at (8) . the same time, what counts were you convicted of and what was the sentence in each
count'? ' · Aggravated Assault CR-36,477 20yrs. ," •-.;.·· ·Aggravated Assault CR-36,475 20yrs.
(9) What was the plea you entered'? (Check one.)
0 guilty-open plea 0 guilty-plea bargain 0 nolo contendere/no contest ~ not guiltv If you entered di.fferent pleas to counts in a multi-count indictmcL, please explain:
. N A . ------- r ---·· . .. ____ ...,..,,.._.._.,._.. .. - ··~ (10) What kind of trial did you have?
0 no jury 0 _jury for guilt and punishmJnt ~ jury for guilt, judge for purhshmcnt [1] Rev. 0L'14/J4 *17 (ll) Did you testify at trial? If ) es, at what phase of the trial did j·o u ltesti fy '!
I No
(12) Did you appeal from the judgment of conviction'?
KJ yes 0 no
(: If you did appeal, answer the following questions: I I What court of appeals did you appeal to'? Eleventh Distr~ct of Texas
(A) Eastland Texas What was the case number'? 11-11-00084-CR, 11-il-00085-CR, 11-11-00086-CR
(B) I (C) Were you rcpre.scnted by counsel on appeal? If yes, provide name: [1] the attorney's
Mark H. Dettman, Attorney at Law I I i (D) What was the decision and the date of the decision'! Af f irm~d April 11,2013 ,:.'\ (13) Did you file a petition for discretionary review in the Court of Cr iminal Appeals'? yes
Kl no 0 [1] If you did file a petition for discretionary review, answer the foll1wing questions: (A) What was the case number? ...;:P-=D:...-_;0::..:5::..:2=-=..2_-..=.1..:::;3 __________ _ _ What was the decision and the date Ofthe dccision'?Refuse (B) d August 21,2013 [1] (14) Ha,·e you previously filed an application for a writ of habeas corpus under Article .. , ~-· ---- 11.07 ofthe-T-exas€ode·of€riminaf·Procedurc challenging this dmvh:tion'! .
10 yes 0 no
lf you answered yes, answer the following questions: [1] (A) \Vhat was the Court of Criminal Appeals' writ number'? N/ ~ Still Pending Rev. 01/14/14 *19 -~··. 1' . '
(17) Beginning on page 6, state concisely every legal ground for your c.laim that you arc ·~ .. : being unlawfully restrained, and then briefly summarize the fact~ supporting each {· .·· ground. Y()U must present each ground on the form application and a brief
summary of the facts. If your graund.~ attd brief summary of the j~cts lra•~e ttot been presemed on the form applicatio11. the Court wi1111ot cmtsitler your grouml.!ii.
If you have more than four grounds, use pages .14 and 15 of the form, which you may copy as many times as needed to give you a separate page fo~ each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the gr~und in the form.
You may include with the form a memorandum of law if you wan~ to present legal authorities, but the Court wiU not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citati~ns and argument must be in a memorandum that complies with Texas Rule of AppJUate Proc~dure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a su'mmary of the facts pertaining to your offense and trial in your memorandum. J
I ..... "" --....:;.;..-o!-- -----.... ·~-
ReY. 01/14/14 Constitional GROUND ONE: .\Applicant's 5th and 14th Amendment Rights to the United States were Violated.
FACTS SUPPORTING GROUND ONE: The prosecution wi th:held exculpatory ,,~ ...... . -~ ... - -· .. --~~'" as well as impeachment evidence that was material! t~ the applicant';:-- ~.-~ ,: t~ .• ~~ ~ .I·.
defense theory, and therefore, violated applicant!'s 5th and 14th Amendment Rights to the United States Constitutio!n.
I , (See Supplemental 11.07 Application with Brie~ In Support) / j ( Pages 1-9,.) !':j~ •.. : .• ! I .
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Rev. 01/14!14 *21 ~-.,
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Rev. 0 lil4/l4 *22 GROUND TWO:
I ···r - FACTS SUPPORTING GROljNO TWO:
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Rev. Ol/14iJ4 *24 L" ' {
GROUND THREE:
FACTS SUPPORTING GROUND THREE:
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Rev. Oli14:l4 ·.· .. :;-:· .:~~. ·• '
GROUND FOUR: ,:~. .. ,. ··~· .. :. tf.?. ~ : .. '
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Rc\. 01/14/14 r·•:. :· ._,,~··. '-'' t , •• ;t:. ~.·~· *28 GROlJND:
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FACTS SUPPORTING GROUND:
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Rev. 0 l ! 14/ 1 4 *29 ;,_.··· . ; . ~ --~~ . . .. ·~.~ ",..,...··. ·~· ., ',.
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-----~--------~--~~~~--~------~-+---------- .. .,. I . -- --·------ ···---~---· I, Rev. 01114/!4 \VfiERF.FORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO \VHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION This application must be verified or it will be dismissed for non~compliancc. For verification purposes, an applicant is a person filing the application on his o~ her own behalf. A pcti ticmer is ~ per~t~n fi I i ng. th.c .~pptication on behalf. of an applicant, foLcxa~ple, an applicant's ' .....
attorney. An inmate is a person who is in custody. [1]
The inmate applicant must sign either the ''Oath Before a Notary Public'' before a notary public or the "Inmate's Declaration" without a notary public. If the it~mate is represented by a licensed attorney. the attorney may sign the "Oath Before a Notary Public'' as petitioner and then complete ''Petitioner's Tnfom1ation.'' A non-inmate applicant must sign' the "Oath Before a Notary Public" before a notary public unless he is represented by a licensed dttorney, in which ! case the attorney may sign the verification as petitioner.
A non-inmate non-attorney petitioner must sign the "Oath Bcforb a Notary Public" before a notary public and must also complete "Petitioner's Information." A~ inmate petitioner :·,'', ~ .. ~ •. ~.·· ~·~ .... :& ,_..,.~:· . o..t must sign either the "Oath Before a Notary Public" before a notary public or :he "Inmate's
Declaration'' without a notary public and must also complete the appropriate ,"Petitioner's lnfonnation.''
OATH BEFORE A NOTARY PUBLIC STATE OF TEXAS
' .... ~- -
COUNTY OF ____ .being duly sworn. under oath says: "I am
-------·---·---- the applicant I petitioner (circle one) in this action and know the contents of the above application for a writ of habeas corpus and, according to my bcliet: the facts s'tatcd in the application are tme." .. ,.,,. ' ·~ ~.. ..~~: '- ··- ... ~-·
... ~~~.,_.....__ •"'. Signature of Applicant /J)dtili<;lCr (circl~ one) SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF 20 Signatur~ of Notary Public 16
l{ev. 0 l !14/14 *31 Petitioner's printed name:Tsc;l./'o. s L IO.Ia c. /0 s ,_I'? 0 cr "l,t-( ( PETITIONER'S INFORMATION n .
State bar number, if applicable: Pro-Se
Address: Wa I I a ee thi f- _J
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Co!«a:uk.Liir-r Lx. ?c;sn
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Fax:
INMATE'S DECLARATION
l,_]5."-Ll<a""r""""q'"-"~s'--'=L"-"a'-Lf6~c::;.ufo.~c-Ll/a..t.__.).S' ____ , am the plicaJ1t! petitioner (circle one) and being presently incarcerated in ltt;;Z::X-12. \.Vq 1/a. cR. ~L.~i::_, declaJe under penalty of Pe~jury that, according to my bc.licf. the facts stated in the above application clrc true and correct
SignedonMc.£.~b'lr- cr _.20 !.tf_.
~~-u. Signature of Applicant I Petitioner (circle one) Rev. 0!/14!14 *32 PETITIONER'S INFORMATION
Petitioner's printed nanlt:;-T$ala. S L. fdlac.I& S" ih;r't-
Address: Wall({ ce
lb7) 5oufh Fflt j15?s- Clarada Ctfv. If. r;qs-tz - T'
Telephone: NL..d
Fax: --.L-JV~L-"--~A~------
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Signed on Qe_c_e_~_:ec_i_. 20J!/__. ~},f~.·~········--- ' . -~:·'
Signaturc of Petitioner Rev. ()J!f4!14