Case Information

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EX Parte

Thomas L. SuAN, Applicant

IN the Texas Court

§ OF § Crimina Appeals

RECEIVED IN COURT OF CRIMINAL APPEALS

motion to Docket Cause

DEC 08-2014

Abel Acosta, Clerk

that this Honorable Court pursuant to code of Criminal Procedure Article II. 07 subsection 5, decket this cause to be heard da novo upon the particular claims made therein with regards to this courts prior holdings which are held to be the controlling law in Texas. In this cause, upon the untiimely suggestion of the State, the trial court (babeas court) has miscategorized particular claims made by the Applicant with regards to C.CA precicant and there fore has denied the equitable right of collateral attack to this Applicant by refusing to property test his particular allegations with the statute and controlling law. (se accompanying memorandum), (and objections to the babes courts findings).

Prayer

This Applicant humbly prays this Honorable Court will docket this cause to be heard in the best interest of Justice in order to preserve habess corpus as a vehicle to test the validity of our Justice system with regards to particular claims of violations of state and Federal Law. $$ Accepted $$ Rejected

RECEIVED IN

COURT OF CRIMINAL APPEALS JAN 132015 Abel Acosta, Clerk

*2 | Ex Parte | $I N the Texas Court | | :--: | :--: | | Thomas L. Swann, | $OF$ | | Applicant | $Criminal Appeals |

Objections to the habeas courts findings and Accompanying mensrandum to motion to docket cause to be heard de novo

Comes Now, Thomas L Swann, Applicant appearing pro se, humbly requests that this Honsrable Court accept these objections and accompanying mensrandum forms the and correct and docket this cause to be heard de novo pursuant to C.C.P. art 11.07 Section 5 and T. RA.P. 73.4(b)(4) as the record will show the following:

1. The Texas Code of Criminal Procedure affords the state 15 days from the receipt of the timely filed applications for post-conviction habeas corpus to file an answer to the claims made by the applicant in the application. However, in the instant cause, the Applicant's Certified Mail Domestic Return receipt 47010024000000082966820 signed by Lisa Rodriguez was received in the habeas court on 3-17-14, to which the state elects not to timely answer but issues a motion to designate the issue of whether the applicant was denied the effective assistance of Counsel on 4-14-14 which was adopted by the habeas court on 4-14-14. The state only files an answer on 9-4-14, well outside of the allotid time in which to file a reply per statute. See CCP art 11.07. With the foregoing being true and the controlling statute makes no allowance for 6 months to reply, the Applicant respectfully objects to the untimely filing of the States original Answer and contends that it by virtue of procedure should not have been considered by the habeas court. In as much, the Applicant respectfully requests that this Honorable court pursuant to C.C.P. art 11.07 sec .5 docket this cause to be heard de novo upon the particular claims made there is.
2. IN the untimely original answer and Amuided original answer, the state erroneously elects that the applicants first alleged error, that the affirming of his conviction by the 14th court of appeals on a constitutionally impermissable basis is not of a

*3 Jurisdational nature nor is it regarding a fundemental or constitutional right and therefore not cognizable and without merit. The particular claims) are that to affirm a conviction based in a sufficiently of the evidence claim of a crime not pled in a valid indictment and therefore would not be considered in a sufficiently analysis. was a violation of due process. According to this courts interpretation of ascertaining what the substantive elements of an offuse are per Jackson V. Urgrove, allowing the 14th Court of Appeals to affirm upon a charge not made under the static urelates due process. See this courts holding in Cooll.hor 46 S.w. 3d 254-258. Further, the Appliont particularly claims that affirming his conviction on a charge not made war submilted to his sury violates due process as articulated by the Supreme Court in Dunn V. U.S. 442 U.S. 100 (citing Cole VArk. 333 U.S. 196), and McCormick V. U.S. 270 see note 8 , in regards to affirming this conviction upon the instruction of manslaughter by a peize of concrete which was neither pled in an indictment (4316314) nor presented to a jury. The principle of this due process violation was further reiterated by this court in the case of Jason Wesley 273 S.w. 3d 260, on Petition for discretiovery reveiw from the very same 14th court of Appeals. Here this Court found that Supreme Court precicant states that it violates due process for a court of Appeals to affirm a conviction based upon facts/thorras not submitted to ajury. 3. In regards to the applicants second ground for relief, thet his conviction was obtained through the use of an unconstitutional jury charge, the state in its untimely original answer. Susgests that the charge given in this cause is proper due to there being "some"evidence that manslaughter accured. However, the applicant's particular claim is that of jurisdictional nature in that the incdict must $\$1316314$ to which the state pro ceeded to use in this cause does not list recklessness anywhere on its face, which under state law neither Can for surisdiction, nor does it property on form the applicant of the particulor offense to which he is charged, without violating this courts holding in Leevson 64 S.w. 2 d 247 with regards to the "murder felony" rule against prediceting a murder prosecutron on a manslaught - er.

*4 Next, upon its untimely amended original answer, the state revises the basis for which it suggests the derical of rcleif by stating that the applicant did not raise the issue of charge error on direct a ppeal where they "generally" must be raised and is therefore not cognizable. The state thus goes on to provide a lesser included analysis based on whether there should have been an instruction on the offense of manslaughter due to an evidenting nature. The particular claim is that the charge failed to track the indretment allegations and therefore should be reversed in accordance with this courts holdings in Jackson V. State 978.5.w. 2d 748, and Almanca V. State 686. "A charge not subsumed/contained in the indretment but submitted to the juiry is held to be reversible error by the court..." Jackson at 746-748; "Error in the courts charge should be urged on direct appeal and will not be considered on a wort of babes corous, unless, the error resulted in a dercal of a fair trial or due process" Cupp V Naughton 414 U.S. 141,147. "When a juy charge issue is considered an babes corpus, the applicable standard of reuciw is applied under Almanca." See Almanca V. State 684 5w.2d 174 (Tecron App 1484). The claim made by the applicant is not of an evidenting nature and has not been tested by the babes court.

1. In regards to the applicants third ground for rcleif, that his due process rights were violated because his conviction was based on no evidence, in which he challenged the the state to produce evidence from states exhibit 140, astiopsy report, as to how the applicants act, stabbing, caused an irreversible cessation of spontaneous circulatory and respiratory function which is this courts adopted definition of death which was decided in this courts holding in Grott; V State 273.5.w. 273 see also VTCG. See code $19.01. This is an evidenting challenge to the autopsy report that claims that the slab wound by the applicant is "a" cause of death but is totally devoid of any evidence as to how that could be true.
2. In the applicants fourth ground for rcleif, that he was devied a meaning fol appeal by his appealble counsel for errowcously combining a sufficiency of the evidence claim

*5 With a claim of change error under the heading of a sufficiency of the evidence heading, the Court merely issued broad category questions of 8 "State specifically whether counsel investigated all possible claims supporting challenges to the evidence. On affidavid, the appellate counsel, Jann; maseli-wood, states that, "She researched the law regarding sufficiency at length," see affidavity 1 . This could not be true as appellate counsel never once cites the controlling law set by this court in Malik/Galliker with regards to the material variance between the indietment, and the evidence at trial. This Court held that, "the focus of inquiry under Malik and Galliker is upon the elements of the offence, and of course before something can be on element of the offense in the hypothetically correct charge it must be authorized by the undietment." (Goll.her 46 S.w. 3d at 258 (citing. Malik v. State 953 S.w.2d 234. Appenllate counsel never cites this controlling case even once much less in regards to the indietment not stating the substan tial eluent of manslaughter. Nomaly, recklessness, which separates it from all other homicides. This court has also held that "If a particular infant is a material element of the charged offense, the charging instrument must state the required inturt." Smith V. State 517 S.w. 2d 917. Fur ther, Appenllate counsel never cites that an indietment that does not charge on offense does not confer suradiction to a trial court to which charge that offense in its charge to a sury. The state merely makes conclusory references to the Jackson / Strickland Stadard and never acknowledges the particular claims made to which the trial court aquiesed. 6. In regards to the applicants fifth ground for relief, that he was denied the effective assistance of his trial counsel, the trial court categorizes a causation defense by not testing the claim of ineffectiveness against the particular circumstances of the applicants case. Particularly, the entire defensive issue for the applicant was that his particular act did not cause the death of the complaintent. Eounsel admits in apes court that the applicant stabbed the decedent on 3 differat occasions yet continued to argue that this act was not the cause of death. However upon the charge conference, there was no objection to the portion of the charge that viddles VICA Am. code (o.04(6) 's

*6 Prohibition of causation related issues being submitted to a jurg, nor was there a request to submit a causation instruction to a jury change that pleads homicide to the same act (stabbing), that it also pleads with a non homocide offense, aggravated assault. Trial counsel further states that they did not call an expert witness hired by the applicant to testify on his betel because counsel states in their affidavt that: "the expert contacted me and told me that here testimony would be detrimuled to my cleats case because she could not say that the state would did not cause the death." This makes no sense as the states expert witness, Roger Milton, who performed the autopsy stated that the stebh wamed did not cause the death and was treatable, which is and of itself was enough to warrant a causation defense at the critical point of the change conference. 7. In regards to the applicants sixth and eighth grounds, namely that his conviction was obtained by the use of false testimony by a states witness, Sirmy McIntire; and the claim that the applicant was convicted by the use of evidence that is in violation of Rule of Evidence 103, from the testimony of the complaintstent's mother who had no probative evidence to the applicants guilt or innescuse but was used by the state to rufliame the minds of the jury, were not properly tested by the habers court as it is suggested that these claims would be better stated as challenges to the sufficiency of evidence claims. Here the trial court (habers court) merely miscategorizes the due process claims as challenges to the sufficiency of the evidence as an avenue not to test them against controlling CCA precident. 8. The Applicants (7) seventh ground for relief, that he is actually innocent of the crime of manslaughter is firmly based on the pure fact that he (1) was never changed with manslaughter and (2) his particular act, namely the lone steb wound did not cause the death of the complaintent. The habers court has no related for these claims and again miscategorized then as a very not to answer the violation of due process.

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Breif Summary of Facts

1. The court's (hobens court) adopted findings of fact and conclusions of law state the applicants claim of error by the appellate court do not assert a jurisdictional defect; nor is it regarding a fundemural or constitutional right. However, the applicant has made specific claims of due process ualatism due to the outcome of that review, and per the court of criminal Appeals, art. 11.07 is the appropriate vehicle for testing due process ualations in Teyes. Ex Parte Brondly 781 S.w. 2 d 880,887 (Tycrim. App. 1884)
2. The hobens courts findings reflect that the applicant did not raise the issue of jury charge error on direct appeal and challenges to the jury charge "generally" must be raised on direct appeal, and that the applicant is attempting to challenge the sufficiency of the evidence. However the applicant has the burden of showing egregious harm upon habers review per this courts holding in Almanze, 680 S.w. 2 d 174 (t ex Cerm. App. 1584), to which the applicant has proved fundemural defect in the courts charge 3. The Applicant has shown that Appellate counsel Jami-masli-wood did not acknoutedge this courts Applicable Law in a sufficiently of the evidence reveiw namely Malik $V$ State 953 S.w. 2 d 243,234 with regards to the hypothetically correct jury charge and Coollihar 46 S.w. 3 d 258 which holds that material variances render evidence insufficient; and therefore due to the deficient conduct of Appellate counsel by not citing the fact that the iudict must in this case does not allow a connection on any reckless act, the Applicant has suffered prejudice by the affirming of his conviction of an offense not allowed by this courts controlling law.
3. The Applicant has proved that the deficient performance by his trial counsel has prejudiced his right to fair trial by withholding sworn affidourts from his farensiz pathologist; and by admitting to his jury that he is go: 1 Y of a crime and not properly eycuting an affirmative defense and not making the process work in the particular case 5. The Applicant has claimed and proved that per the record, states exhibit 140, the

*8 States mean witness Jimmy maIntire was making different and false statements egyptially dwing his testimony. 6. The Applicant contends that violation of Rule of Evidence 403. in which he claims is not procedurally barred as it is a claim of due process violation which is cognizable upon or. II. 67. By parte williams 65 S.w. 34657 7. The trabecs court states in its conclusions of law, numbers 9-11 99.7, that the applicant has failed to meet his burden of proof, his allegations are insufficient and he has failed to demonstrate that his conviction was illegally obtained. 8. The applicant contends that had his claims actually been tested as the due process violations that they are, and not miscategorized by generality, he would have sufficiently met his burden of proof by clear record evidence.

There fore, the Applicant humbly prays that this honorable court docket this causé to be heard de novo on the merits of its contact as due process violations to which the great merit is founded upon, Justice for all not just some.

| | Accepted | | | :--: | :--: | :--: | | | Rejected | 12/2/14 | | | | Thomas L. Suen ^[4] 1754805 | | | | 1391 F.m. 3328 Detounit | | | | Tenn. Colony, T# 75880 |