Case Information
*1
IN THE 265th JUDICIAL DISTRICT COURT
FOR DALLAS COUNTY, TEXAS
WRIT NO. WO9-57260-R(A)
APPLICANT'S OBJECTION TO THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSION
OF LAW
RECEIVED IN COURT OF CRIMINAL APPEALS FEB 172015
Abel Acosta, Clerk
- EXPANTE MARCEL DAVIS
- NEREIN FIVE (9) FAGES
- MERKEIN FIVE (9) FAGES
*2
WRIT NO. WO9-57260-R(A)
EXPARTE MARCEL DAVIS
IN THE 265TH JUDICIAL DISTRICT COURT FOR DALLAS COUNTY, TEXAS
APPLICAHT'S OBJECTION TO THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSION OF LAW
TO THE HONORABLE JUDGE OF SAID COURT:
Nov come narcel Davis, Pro-8e, by way of objection to the trial court's findings of fact and conclusion of law for the following reasons: (1) The state fact's supporting Applicant's plea to be knowingly and voluntary, also that trial counsel rendered effective assistance during the plea colloguy despite not advising Applicant to plea guilty as stat in counsel's affidavit.
Applicant asserts that such facts should not be adopted by the court, because they are unreasonable and contrary to Strickland v. Washington 466 U.S. 687, 694 (1984); Hernandez v. State 726 SW 26. 53, (Tex. Crim. App. 1986); Exparte Pool 738 SW 2d 285, 286 (Tex.crim. App. 1987); Hill v. Lockhart 474 U.S. 52, (1985) and Boykin v. Alabama 395 U.S. 242 (1969), because such plea vas unknowingly and involuntary because trial counsel failed to fully appraise Applicant of the nature of the charge against him and the consequences of such plea, which the state (at 3) of it's findings admit that trial counsel never informed Applicant prior to the entry of his guilty plea about the culpable mental state of recklessly in relation to the charge offense of Injury to a child or the effects of such culpable mental state during the punishment and sentencing phase. Which the
*3 Tox. Penal code Ann 822.04 (e)-(g) provides that the range of punishment for injury to a child is determined by the mental state in which the offense was committed. As stated in Plores v. State 102 sW 3d (2003): The folony murder rule dispense with the necessity of proving menrea accompanying the homicide itself, the under lying folony supplies the culpable mental state.
A person commits the offense of injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence causes (1) serious bodily injury (2) serious mental deficient, impairment or injury or (3) bodily injury to a child (Tex. Penal code Ann § 22.04 (A) V rnon 2003) While Tex. Penal code Ann § 22.04 (e)-(g) Vernon 2003 provided that the range of punishment for injury to a child is determined by the mental state in which the offense was committed, the offense of folony murder under Tex. Penal code Ann § 10.02 (b)(3), Vernon 2003 is a first degree felony regardless of the culpable mental state for the underlying felony of injury to a child.
In general, and indictment must plead every element which must be proven at trial, an allegation of an essential culpable mental state is a element of the offense. Failure to include a culpable mental state unually is a defect of substance, normally when there is a defect in substance there is a failure to charge a purported offense.
Under Tex. Code Crim Proc. Ann Art. 21.19 (Vernon 1989) determining whether the indictment's omission affected Applicant's substantial right turns on the question of whether Applicant had notice, adequate to prepare his defense.
In general an indictment must plead every element which must be proven at trial Dinkin v. State 894 sW 2d 330, 338, Tx. Cr. App Cert. denied, 516 U.S. 832, 133 E.Ed.2d. 59, 115 sct 106 (1995), An allegation of an essential culpable
*4 MENTAL STATE USUALLY IS A DEFECT OF SUBSTANCE, SIDGER v. State 799 sW 2d 263 (Tex. Crim. App. 1990), Exparte Winton 549 sW 2d 751 (Tex. Crim. App. 1977) normally when there is a defect in substance, there is a fallure to charge a purported offense. See: Jackson v. State 718 sW 2d 724, 725 (Tex. Cr. App. 1986).
If the omission of a culpable mental state for the underlying folony was a matter of form, then article 21.19 provides the test for harmless error. The question is whether the omission is one of substance or form because the code of criminal croc. categorizes errors in a charging instrument of either defects of substance or defects of form, Tex. Code. Crim Proc. Ann, Art 27.08 Vernon 102 sW 3d 332 1989) provides that there is no exception to the substance of an indictment or information except for the four matters listed.
Applicant assets that trial counsel performance was deficient bacause counsel was required to have firm command of the law and facts of the case Exparte Lilly 656 sW 2d 490 (Tex. Crim. App. 1983) and had trial counsel done so, counsel would have been avare that the omitted culpable mental state of recklessly from the indictment by the state in it's amendment was a defect in substance and was a fallure to charge a purported offense in relation to the offense of Injury to a Child. As cited in Flores v. State 102 sW 3d 328 (2003). Therefore requiring an objection and the filing of a pretrial motion to quash the indictment under Tex.code.crim proc. Art 1.14 in light of studer v. state 799 sW 2d 263 (Tex. Crim. App. 1990) due to a failure of the indictment of the indictment to plead every element of the offense as set out in Dinkin v. State 697 sW 2d 413, 415 (Tex. Crim. App. 1985) as set out in Flores v. State.
The trial court facts and finding in relation to trial counsel's eliciting extraneous offense or bad acts testimony
*5
from applicant during the punishment and sentence about the manner of supporting himself by drug dealing, which counsel believed it better for applicant to be candid with the court.
Applicant asserts that the state court finding and facts that support counsel's belief, that applicant should be candid with the court and out of nowhere inform the sentencing court that he was a drug dealer, is unreasonable and could never be considered plausible basis in strategy or tactics for his actions as cited in Exporte burns 607 sw 26. 370, 372 (Tes. Crim. Appl 1980) ; Exporte Candua 428 A2D, 996; Andrews v. State 159 sW3D 98, 102.
Applicant asserts that such testimony was highly pre judice under 405 of the 9x R. Rule of Evidence, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Also could never be trial strategy in the absences of a properly filled and ruled on motion of notice of intent to compel the state to aware applicant of it's intent to use such extraneous offense or bad act during the punishment phase, as set out under 9x. Code Crim. Proc. Art. 37.07 § (A)(g) and Ford v. State 106 sw 3d 765 (Tes. App. Texarkana 2003).
CONCLUSION
Applicant asserts that such plea could never be knowingly and voluntary because the Fact's, Pindings, and Affidavit from trial counsel that the state relies on is unreasonable and contrary to Boykin v. Alabama 395 U.S. 242 (1969) because Applicant was not fully appraised of the nature of the charge or the culpable mental state of recklens in relation to this offense of injury to a child and the consequences of such culpable mental state when sentencing Applicant, counsel performance was deficient because he vas unaware
*6
that the omitted culpable mental state of recklens from the indictment by the state was a defect of substance and failed to charge a purported offon Therefore Applicant asserts that had trial counsel gathered the facts of the case and governing law to protect the rights of the accused as sot out in Esparte Lilly 656 SH 2d 490 Tx. Cr. App. 1983, and counsel tiled the motion under 37.07 of the Tex. Code Crim. Proc, Compelling the state to notify Applicant prior to the punishment phase to notify Applicant of its intent to use extraneous offenses or bad acts of Applicants past conduct during the punishment, instead of just eliciting highly inflamatory extraneous offense or bad acts as to being a drug seller with no plausible basis in strategy as sot out in Esparte Burns 601 sW 2d 370, 372 (Tex. Crim. App. 1980) Counsel would have also been avare that an objection was necessary to the states omitted culpable mental state of reckless from the indictment and thereafter filed a motion to quash due to a defect of substance in accoraance with Tex. Code Crim. Proc. 27.08 and Studer v. State 799 sW 2d. 263 (Tx. Cr. App. 1990) Trial counsel was clearly ineffective in the light Esparte Lilly 656 sW 2d 490 (1983) Hernandes v. State 726 sW 2d 53 (1986) and Strickland v. Washington 466 U.S. 687 (1984) and had it not been found to have comnited said offense recklase due to testimony of Applicants actions of impulsively and out of frustration.
CERTIFICATE OF SERVICE
I. Harcol Davis, state that all the forgoing is true and correct and free of perjury. 2.9.15 (Date)