Simmang, Cary Allen
WR-81,987-02
| Tex. App. | Oct 12, 2015
Case Information

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EN BANE CAUSE NO. 2008-CR-3999 W-WE2, 987-02 EX PARTE: CARY ALLEN SIMMANG APPLICANT: TBCI*IS800LL ABDRESS CLEMENTS UNIT 9601 SPUR 591 AMARILLO, TEXAS, 21107-2106

* IN THE DISTRICT COURT

55 227TH JUDICIAL DISTRICT * BEYAR COUNTRY TEXAS, 78205, * (AND) OCT 122015

  • IN THE DISTRICT COURT
  • 144TH JUDICIAL DISTRICTC
  • BEYAR COUNTY TEXAS, 78205 (AND)
  • COURT OF CRIMINAL APPEALS
  • PO. BOX 12308 CAPITOL STATION,
  • AUSTIN TEXAS, 78711

APPLICANTS FINDINGS OF COURTS INCORECT STATEMENT AND RULINGS FOR PETITION WRIT OF HABEAS CORPUS II. 07 IS INCORECT AND UNIJUSTIFIED HARM IS FOUND.

TO THE HONORABLE JUDGE OF SAID COURTS NON COMES CARY ALLEN SIMMANG; T. CE NO. 2008 CR 3999 W-W2 WR-81,987-02 APPLICANT FOR II. 07 WRIT.

Finding greivias fault in response to WRit II. 07. "Statement of the Case I I shows wrongful accusation of "MURDER" Applicant has never been accused or found guilty of "MURder" in any state, or of the World. Please see exhibit I Cikcled (a I I statement of case) This has prejudiced the Courtes Findings and proved harm.

Page 1

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Rehearing should be granted and applicant released Due to the findings of Law", As stated in Writ 11.07 TR, Ct. No. 2008 CR 3999 W-W2. And also to persuant TRAQ Rule 76479 + 77.1 + 77.2 + 79.5 Submissions of EN GANC

EXHIBIT # II HISTORY OF THE CASE This Legal Court document exhibit * II shows NO offense of "Murder, No. 2098-CR-3999W-W2 but lacks the trail by jury which applicant was not found guilty, applicant to this day reassurts his innocents.

But found guilty of an infraction of deferred adjudication With has nothing to due with the Case. And still assures his inncense.

But asks these Honorable Courts to uphold their oath of law

As stated in previous 11.07 the maximum of incarceration should have not exceeded 5 yrs.

Applicant asks the Honorable Courts to uphold the Law and oath's set fourth by Constricution, legislation, Court of Criminal appeals, Texas Rules of App. proc., penal codes and all government codes etc... that make this great Nation.

# I I I

Every ground in 11.07 Writ was taken directly from Law books 4 codes + C.cP and are "facts of Law" these facts are of these laws that govern the United States and are proof to every statement 8 Grounds

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in 11.07 Writ and are of "facts of the Law's" that Need to be upheld and find for the applicant Habers Corpus, of Syrs, and time Served as "FACTUAL LAW".

IV. PRAYER

Applicant has proved harm and prejudice and EN BANC should be granted; as to evidence shown for Exhibit 1 and backed by Exhibit II.

These are facts of Legal printed Court Copies. applicant prays for relief as time served and Courts to properly Sentence to Syrs, Matimon as stated by facts oflaw" in 11.07 Writ No. 2008-CR-3999-W2.

There is no denial, as these have been printed facts of law and Legal printed documents and applicant has shown proof of same in previous 11.07 Writ

Applicant denies ever being Convicted or charged with any type of said charges the Courts have errored in this statement of "Murder Charges Conviction".

Applicant CARE ALLEN SIMMANE should be granted Heabeas Corpus relief and Sentence to be corrected to syrs max. and relieved as time Served.

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CAUSE NO. 2008-CR-3999W-W2

EX PARTE: BONNA KAY MEKINNEY DISTRICT CLERK BEXAR COUNTY 144TH JUDICIAL DISTRICT 2015 AUG 20 A II: 27 BEPUTY BEXAR COUNTY, TEXAS

STATE'S RESPONSE TO APPLICANT'S PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now the State of Texas by and through its Criminal District Attorney, Nicholas "Nico" LaHood, and files this response to the Applicant's Petition for Writ of Habeas Corpus.

I. Habeas Writ Filed

The Applicant Cary Allen Simmang filed this petition for a post-conviction writ of habeas corpus pursuant to art. 11.07, § 3(a), Texas Code of Criminal Procedure. The State files this mandatory answer pursuant to art. 11.07 § 3(b).

II. Statement of the Case

The Applicant was convicted of the offense of Murder in Cause No. 2008-CR3999W and punishment was assessed at confinement for 40 years. His petition for a writ of habeas corpus was filed on August 3, 2015. The State was served by the District Clerk of Bexar County on August 5, 2015.

III. State's General Denial

The State generally and specifically denies each and every allegation of fact made by the Applicant and demands strict proof of same.

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CONCLUSION

WHEREFORE, PREMISES CONSIDERED, the State would ask that the trial court enter an ORDER recommending the relief be denied.

Respectfully submitted,

NICHOLAS "NICO" LAHOOD

Criminal District Attorney Bexar County, Texas

Assistant Criminal District Attorney Bexar County, Texas Paul Elizondo Tower 101 W. Nueva San Antonio, Texas 78205 SBN: 02880500 (210) 335 − 2418 (210) 335 − 2436 -FAX

Attorneys for the State

CERTIFICATE OF SERVICE

I, Jay Brandon, Assistant Criminal District Attorney, Bexar County, Texas, certify that a true and correct copy of the foregoing response will be mailed to Cary Allen Simmang, Clements Unit, 9601 Spur 591, Amarillo, Texas, 79107, on this the day of August, 2015.

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NO. 2008-CR-3999W-W2

| EX PARTE | § | IN THE DISTRICT COURT | | :-- | :-- | :-- | | | § | 227TH JUDICIAL DISTRICT | | | | | | CARY ALLEN SIMMANG | § | BEXAR COUNTY, TEXAS |

ORDER

Applicant, Cary Allen Simmang, has filed a pro se application for post-conviction writ of habeas corpus pursuant Article 11.07 of the Texas Code of Criminal Procedure, collaterally attacking his conviction in cause number 2008-CR-3999W. (West 2014).

HISTORY OF THE CASE

On May 12, 2008, pursuant to a plea bargain agreement, Applicant pleaded nolo contendere to two counts of injury to a child (causing serious mental impairment). On August 4, 2008, Applicant was placed on deferred adjudication community supervision for a period of ten years and fined \ 1,500 . O n M a y 20 , 2009 , t h e S t a t e m o v e d t o a d j u d i c a t e g u i l t a n d r e v o k e S i m m a n g ′ s c o m m u n i t y s u p e r v i s i o n a f t e r h e f a i l e d t o c o m p l y w i t h t h e t e r m s o f h i s c o m m u n i t y s u p e r v i s i o n . A h e a r i n g w a s h e l d o n J u n e 12 , 2009 . A p p l i c a n t ′ s p r o b a t i o n w a s r e v o k e d , a n d h e w a s a d j u d i c a t e d g u i l t y a n d s e n t e n c e d t o f o r t y y e a r s t h e T e x a s D e p a r t m e n t o f C r i m i n a l J u s t i c e − I n s t i t u t i o n a l D i v i s i o n a n d f i n e d \ 1500 . Applicant filed notice of appeal and on June 9, 2010, the judgment of the trial court was affirmed. (04-09-00563). Applicant's petition for discretionary review was refused and mandate issued November 19, 2010.

Applicant's first writ application was denied without a written order on the trial court's findings without a hearing on September 24, 2014. (WR-81,987-01). Applicant filed this second writ application on August 3, 2015. A copy of this application was received by the District Attorney on August 5, 2015.

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ALLEGATIONS OF APPLICANT

In Ground One Applicant alleges that his rights to a "trial by jury and punishment" were violated. He claims he did not sign a jury waiver and therefore his sentence is illegal. Applicant asserts that the maximum sentence that could have been imposed was 5 years. He claims to have found newly discovered evidence and asks that his sentence be corrected to 5 years and he be released for time served.

In Ground Two Applicant claims there was a sentencing error. He asserts the maximum legal sentence he should have received is 10 years.

In Ground Three Applicant asserts "motion for mistrial/time served." He claims the court committed error when un-negotiated terms were added to the plea bargain.

In Ground Four Applicant alleges ineffective assistance of counsel. He claims counsel's blind acceptance of plea practices in the district courts shows harm and prejudice towards Applicant. Applicant asserts the maximum sentence imposed should have been 5 years.

In Ground Five Applicant asserts "void punishment." Applicant claims he was entitled to have a jury assess his punishment. He claims the sentence is void because the punishment was not authorized.

In Ground Six Applicant alleges prosecutorial misconduct in the sentencing stage of the trial. He claims the prosecution failed to understand the proper punishment range fixed by the Legislature, causing the judge to enter a void judgment beyond the maximum of 5 years.

In Ground Seven Applicant alleges minimum sentencing was violated. He claims the agreement was for 10 years community supervision and therefore the maximum sentence should not have exceeded 10 years imprisonment.

In Ground Eight Applicant alleges a violation of the procedural rule of sentencing.

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In Ground Nine Applicant asserts he is entitled to a new sentencing hearing because due process was violated. He claims his sentence is illegal because his punishment exceeds that set by the Legislature.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  1. At the outset, this Court believes that Applicant's writ application does not strictly comply with the Texas Rule of Appellate Procedure 73.1. Therefore, the Texas Court of Criminal Appeals may choose to dismiss the application for that reason.
  2. However, to the extent the merits of the application are going to be addressed, this Court makes the following findings and conclusions.
  3. Applicant's first writ application was denied by the Court of Criminal Appeals on September 24, 2014. (WR-81,987-01). The trial court's recommendation in the first writ application was made after an assessment of the merits of the application. The denial without a hearing by the Court of Criminal Appeals was based upon the trial court's findings.
  4. This Court does not have jurisdiction to consider the merits of a subsequent application for writ of habeas corpus unless the application contains sufficient specific facts establishing that (1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex. Code Crim. Proc. art. 11.07, § 4(a)(1) (West 2012).
  5. A factual basis of a claim is "unavailable" under Subsection (a)(1) "if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date,"

*9 and reasonable diligence "suggests at least some kind of inquiry has been made into the matter of the issue." Ex parte Lemke, 13 S.W.3d 791, 794 (Tex.Crim.App.2000). 6. The trial court cannot discern the "new evidence" Applicant is claiming that would entitle him to relief on this second writ application. 7. Moreover, the court finds that Applicant has failed to raise any "new evidence" that supports relief in this case. The Court of Criminal Appeals has held that "when an applicant asserts a Herrera-type [actual innocence] claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicant's innocence." Ex parte Franklin, 72 S.W.3d 671, 678 (Tex.Crim.App.2002). The court finds that Applicant has not met his burden of presenting newly discovered affirmative evidence of his innocence. 8. This Court finds that Applicant's allegations in this writ application could have been presented in his previously filed writ application. Therefore, Applicant is not entitled to relief on this second writ application. Tex. Code Crim. Proc. art. 11.07, § 4(a)(1) (West 2014). 9. Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that this application be DISMISSED.

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ORDERS

The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this document, together with any attachments and forward the same to the following persons by mail or the most practical means: a. The Court of Criminal Appeals

Austin, Texas 78711 b. Nicholas LaHood

Criminal District Attorney Paul Elizondo Tower Bexar County, Texas 78205 c. Cary Allen Simmang

TDCJ No. 01580666 Clements Unit 9601 Spur 591 Amarillo, Texas 79107-9606

SIGNED, ORDERED and DECREED on