Case Information

*1

346-15

In The In The In The In The Count of Criminal Appeals In The Count of Criminal Appeals Austin, Texas

RECEIVED IN

COURT OF CRIMINAL APPEALS Daniol Vasyuer Dominguer JUN 042015

The State of Texas Abel Acosta, Clark

Appel No. 11-12-00344-CR From the 10th District Court of Taylor County Trial Court No. 15674-B

FILED IN COURT OF CRIMINAL APPEALS JUN 042015

Retition For Discretionary Review

Retitioner, Daniel Vasyuer Dominguer

Daniel Vasyuer Dominguer

Retitioner -ProSe TBCS-ID. 1355466 Neal Unit 4055 Spur 541 Amarillo, Texas 74107

*2

Identity of The Parties

Daniel Vasquez Dominguez / Alex B. Eyssen, Pile Patitioner Prose TDES-JD 1355966 Neal Unit 3055 Spur 591 Amurillo, Texas 79107

Appointed Attorney for Art. 64 Post Office Box 3521 802 Mulberry Abilene, Texas 79601

James Eldson District Attorney Criminal District Attorney Taylor County Courthouse 300 Oak Street Abilene, Tx. 79602 Patricia Dyer, Assistant Criminal District Attorney Taylor County Placa 400 Oak Street, Suite 180 Abilene, Tx. 79603 Lee Hamilton, Judge From the 109th District Court of Taylor County Trial Court No. 13674-B 300 Oak Street Abilene, Tx. 79603

*3

Identity of The Parties

Eleventh District of Texas Court of Appeals 100 West Main St., Suite 300 Eustland, Texas N449 Justices of the Court of Appeals Panel consists of: Jim R. Wright Chief Justice Mike Willson Justice John M. Bailey Justice Memorandum Opinion handed Down on: February 27, 2015; No. 11-12-00349-CR by Justice, Bailey J. Opinion of the Court, (Affirmed)

*4 Table of Contents Page Identity of the Parties ..... 1,2 Table of Contents ..... 3 Index of Authorities ..... 4,5 Statement of Jurisdiction ..... 6 Request for Oral Argument ..... 7 Statement of the Case ..... 8,9,10,11 Statement of Procedural History ..... 10,11,14, Grounds for Review ..... 12 Argument and Authorities ..... 14 Prayer for Relief ..... 16 - 37 Appendix. ..... 38

• Exhibit - 1 (Appointed Councils letter) ..... 39
• Exhibit - 2 (exculpatory evidence filled in the 326" District Court under case File ^[2] 5034-cx) ..... 40
• Exhibit - 3 (Dudges Order for Counsel) ..... 41

*5

Index of Authorivities

| | Page | | :--: | :--: | | Texas Court of Appeals cases: | | | Lewis v. State, 2765 W. 3d 422 at 452 n ${}^{\text{th}}$ (Tex. App. Dallas,1984) | 23,30 | | Diapac v. State, 2225 W. 3d 885 (Tex. App. Dallas 2001) | 32 | | Freemen v. State, 2305 W. 3d 392 (Tex. App. Eanthand, 2007) | 34 | | Gray v. State, 695 W. 3d 435, 935, 937 (Tex. App. Mayo 2002, nept.) | 14 | | Hampton v. State, 365 W. 3d 421, 926 (Tex. App. El Paso 2001) | 34 | | Jaffery v. State, 2055 W. 2d 714, 716 (Tex. App. Dallas 1955 nept.) | 28,29 | | Johnson v. State, 2725 W. 2d 703 (Tex. App. Corpus Christi, 1959) | 23 | | Murphy v. State, 1115 W. 3d 946 (Tex. App. Dallas 2003) | 14, 27, 28 | | Texas Court of Criminal Appeals cases: | | | Cain v. State, 4525 W. 2d 404, 408 (Tex. Crim. App. 1997) | 23 | | Chacksv. State, 2025 W. 2d 186 (Tex. Crim. App. 1984) | 23, 30, 31, 35 | | Ex parte Cautierres, 3715 W. 3d 885 (2011 Tex. Crim. App. 1993) | 20 | | Ex parte Schueeder, 2465 W. 2d at 952 n ${}^{\text{th}}$ (Tex. Crim. App. 1993) | 30 | | Guxman v. State, 4555 W. 2d 95, 99 (Tex. Crim. App. 1997) | 28 | | Hampton v. State, 265 W. 3d 603 at 612 (Tex. Crim. App. 2002) | 34,35 | | Jackson v. State, 2715 W. 2d 762, 771 (Tex. Crim. App. 1984) | 26,27 | | Johnson v. State, 235 W. 3d 1, 263 (Tex. Crim. App. 2000) | 23 | | Kutznerv. State, 755 W. 2d 427, 434 (Tex. Crim. App. 2002) | 20 | | Rivera v. State, 295 W. 3d 55, 54 (Tex. Crim. App. 2002) | 22 | | Smith v. State, 1655 W. 3d 361 (Tex. Crim. App. 2005) | 20 | | Thomas v. State, 2415 W. 2d 399, 407 (Tex. Crim. App. 1992) | 32,34 |

*6 United States Supreme Cases:

Anders v. California, 326 U.S. 758, 815.84.1996, 14 L. Ed. 24495 (1967) Dredy v. Maryland, 375 U.S. 83, 97-89, 85 S.E. 1184, 10 L.Ed. 24215 (1965) Strickland v. Washington, 444 U.S. 644, 667-68, 644, 104 S.E. 2052, 20 L.Ed. 24674 (1984) United States v. Ayers, 427 U.S. 47, 106 S.E. 2382, 32,33 44 L.Ed. 24542 (1976) United States v. Dweley, 475 U.S. 667, 682,105 S.E. 3375, 32,33,34

Texas Constitution And Statutes:

Tex. Constitution Art. V. sec 5 Tex. Code Crim. Proc. Art. 64.01(8) Art. 64.01 (83,8) Art. 64.01-64.05 Art. 42.12 Tex. R. App. Proc. Rule-26.2 Tex. Penal Codes - 22.01, 22.021 Tex. Govrit Code Ann. 8524.608, 24.634 (West 2004)

United States Constitution Sixth Amendment Fourteenth Amendment

Page 44, 19, 27, 28 17, 19, 32, 33, 34, 35 26, 27, 29, 30, 35 32,33 33,33,34

Page

6 15, 19, 25 16 19 12 12 4, 17

Page 26

*7

Statement of Jurisdiction

Pehitioner has timely filed proeclared requirements pursuant to Tex. Code of Erion. Prac. Ann. 64.0164.05 and now files his Petition for Discretionary Review with the Court of Criminal Appents. The Court of Criminal Appents shall have final appellate jurisdiction eavernative with the limits of the State, and its determinations shall be final, in all criminal cases of whatsoever grade, with such exceptions and under regulations a 5 may be provided in the Texas Constitution, Art. V. 50.5.

*8

Request for Oral Argument

Pulitioner requests this cause be set for oral argument before the reviewing Court. To determine it the Court of Appetts ultimately applied factualsufficiency review standard with the presumption that the evidence presented by the State Defense was legally sufficient, ie. constitutionally sufficient for the purposes of the Due Process Change of the Fourteenth Amendment to Beny pulitioners appeal from the trial court's decision on motions for postconviction DNA testing. Iee, Lode Crim. Proc. Ann. acts 64.01 thre 64.05 (Vernon Supp. 2005). The Prilitioner has newly discovered evidence that was withheld from his trial that is so concierary to the overwhelming weight of the evidence as to be manifestly unjust, it shades the conscience, and clearly demonstrates bias from the State and State reports. Because the Court of Appetts is not bound to view the evidence in light of the pros evention, it may consider the testh many of defense witnesses and the existence of after maller hy potlases. This Court should set aside the Court of Appetts opinion and reverse and removal politioners appeal, for further review on the evidence.

*9 This case involves an under age victim who at the time was considered Paitioners' stepphaughter that was living at Paitioners home with his common law wife and two other daughters who were also under age at the time, or in February 1, 1994 when the alleged offense was through. In May 26, 2000 Paitioner was arrested for the charges of Appraveded Sexual Assault of a Child and Imbreeding with Child. The State Prosecution has started in its stated response toold filed with the Eleventh Court of Appeals on June 21, 2001 that these offenses were committed on or about February 1, 1994. Paitioner was not indicated for these offenses' until June 15, 2000 which would be a 11 month time lapse before indictment was issued. - 1.) Why would the State wait so long to indict it it had sufficient evidence for the charges? If the Court of Criminal Appeals would review Paitioners past criminal history, it would find that prior to the alleged charges Paitioner had been arrested in May 21 of 1994 for burylary of a building and evading arrest. Paitioner was incarcerated and was sentenced to serve a one year sentence in Dacthal State Hall in Dacthal, Texas. He was sentenced in (1994) and was released from incarceration in (2000). Upon Paitioners' release from confinement Paitioner was then arrested (9.)

*10 on May 24, 2000, for aggravated sexual assault and indecency with a child. 2. If the atlewell charges were true as the State Prosecution claims, why wait for release?, why not issue a detailner while in state jail? The fact is that the PAtitioner was incarcerated when the State made its atlewell charges. After PAtitioner's arrest in May 24, 2000 he remained in the Tawlor County Jail until trial was set on Jan. 8, 2001. But during this restraint for these charges based on atlewell statements as the State Prosecution claims. The victim whom PAtitioner had atleggthy sexually assaulted, ironically turns out to be impregnated and was due to give birth to a child on the first of June, as the report states in the Texas Department of Protective and Regulatory Services filed in the 326 District Court under Exercise No. 5034-59, a family district Court that by Stateate has primary responsibility for cases involving family law matters. Tex. Court Code from 55.81.681 to 55.81.682 (wost 2000) (that was sealed) -3. How can a Texas State Court convict a person of the United States on mere statements, retrieved by the State Prosecution and State Agents, but did not convict a perpetrator who impregnates an under age victim? who is the same victim that PAtitioner is being accused of sexually assaulting. The 31timate question(s) for this Court to review

*11 are: -4) How did this Child start was under investigation, and in Custody of the State, and State Agents, and under the age of consent turn out pregnant while Pattitioner is being prosecuted and convicted? -5) Did the State Inspector convict the person who got the victim pregnant under State laws of the period taken. or was this evidence used to prosecute and convict the Pattitioner? -6) Why was testimony from experts who were involved in this pregnancy left out from Pattitioners Sun. 4, 2001 trial? -7) Does the State Prosecution from the 10th District Court of Taylor County leave the authority under State laws and the United States Constitution to convict one person but not another where the victim is the same one who was victimized? -8) Does allayal statements of a sexual assault against an under age victim provide the actual sexual penetration of an under age victim (under Statesman)? -9) How can the State Prosecution in this case determine that I am or not the father of this Child? - Just as the State has started in its response for the Appeals Court (at 7 1984), "Unless the victim was pregnant for over two years it would not matter it the Pattitioner were not the father of the child born to the victim. In other words from this state-

*12 ment, the State is claiming that it is lawful to prosecute and convert a person on meet statements, but it would not matter under State laws of Textes and United States Federal laws if an underseye vidience turns out pregnant for a sexual assault chance and while in their custody. This whole prosecution and conviction against the Päritoner is unlawful under Texas State laws, and the United States Constitution laws. Exculpatory evidence has been suppressed from disclosure, and was filed in another District Court. Exculpatory documents, Testimony, and witnesses from State Agents have been hindered from Petitioners treat, and is still being witched under the Biling of Arts (4.01-44.05 of the Tex. Code Crim. Proc. State Agents were in possession of the victim and her pregnancy, that required State writing and requires results under State structures. Petitioner involves the Court of Criminal Appeals jurisdiction in this case, that is so contrary to the evidence to be overwhelming weight of the evidence as to manifestly unjust, if shocks the conscience and clearly "demonstrates bias" from the State, and its Agents involved in this case. Petitioner involves a Obesity Exchrist Sufficiency review standard, where Court of Appeals did not apply proper review.

*13 In June 15, 2000 Phitioner was indicted for sexual assault of a child under the age of 14, 2 poor graders, and a second count of indecency with a child. On January 8, 2001 Phitioner entered a plan of no-context to these offenses. Fax. Penal Cobs: 22.01, 22.021. Pursuant to a plan baryain under Fax. Cobs Crim. Proc. Act. 42.12). Trial Court agreed to suspend the imposition of the sentence of guilt. Phitioner was placed on Bøftereth adjudication supervision for eight years under Act. 42.12. In the course and violation of these terms, the State filed its motion to adjudicate. The trial court determined that Phitioner visited all quotations of his deftered community supervision. Revoked deftered community supervision, adjudicated quilt and sentenced him to thirty years of confinement. The sentence was im- port in open court by Honorable Judg. Lee Harninton from the 10th Dist. Court on February 16, 2001. Phitioner's attorney failed to advise the right to appeal and the time allowed for this process under TR. N. 26.2. Phitioner attempted to file notice of appeal from judgment to adjudicate quilt, but because of Phitioner's attorney failure to advise of the appeal process. Phitioner's direct appeal was discussed for want of jurisdiction by the Eleventh District, Court of Appeals, because appeal was not firmly filed with the trial Court. (19.)

*14 On May 15, 2012, PAtitioner filed a motion for the appointment of counsel to assist with the PAtitioners motion for post-conviction on DNA and Forensic testing, because PAtitioner had newly discovered evidence that the victim in his case, still under the age of consent at the time of his trial, was pregnant and the evidence pointed at PAtitioner, as the perpetrator. The PAtitioner submitted a motions (1) Motion for appointment of counsel with affidavit of indegnery attached; and (2) Motion for DNA and Forensic testing with supporting affidavit, requiring testing from the victim and the biological child, all medical records obtained by Hospital Medical Study le (Murses and Doctors), who were aware that the victim was under age and were treating her of her pregnancy at the time of PAtitioners trial. Included with his motions PAtitioner attached a copy of his supporting affidavit with facts of what evidence he wanted tested. He also attached a copy of the discovered evidence that was filed in the 5212 District Court of Toulor County as a (sealed filed at the time of his Jan. 7, 2001 trial. On May 30, 2012 the trial court appointed Mr. Max Eyssen to represent and assist PAtitioner in obtaining DNA testing pursuant to Act. 64.21 (c) Tex. Code of Criminal Procedure. Mr. Eyssen in (R.)

*15 Several of his communication letters, he requested that he be permitted to inspect the exclgatory file related to Causs 5034 -C. He stated that prior to being permitted to review the file, the District Judge first had to review the file and then contact the parties involved to allow them the opportunity to object. This included the victim. He stated that the judge would let him know if and when he could inspect the started that he fully anticipated the Court would allow him to inspect the file, but it seems very denied, he would then discuss other remedies to gain access to the information contained in closed file. He also stated that he was starting a new job in October but that the Court would appoint another attorney on Sept. 27 at 11 pm The trial Court states that on December 14, 2012 it allowed Mr. Eyysen to withdraw because he was closing his law practice and leaving the State of Texas. Trial Court appointed attorney, Mr. Eyysen failed to represent Baltimore case adequately and made false statements to the Court and the (2) Biltimore. Appointed attorney, Mr. Eyysen, allowed to withdraw from the case and abandon "unextr

*16 Trial Court did not appoint new counsel to represent Pettitioner in Art. 64.91 (c) Tex. Code of Crim. Disc, after Mr. Eyman advised of his withdrawal. On October 31, 2012 the trial Court issued an order thating that: -2 The States criminal case was based entirely on witness statements, and; -22 No physical evidence was seized by laws enforcement, and; -32 No physical evidence was in possession of the State during the trial of the offense. Also, in the October 31, 2012 order, the trial Court determined that Pettitioner was not entitled to DNA testing, and the trial Court declined to order any DNA testing from Mothers filled pursuant to Art. $(64.91-64.95)$ , Tex. Code of Crim. Disc. The trial Court determined that there were no grounds for the Pettitioner to file his motion for forensic DNA testing and that new counsel should not be appointed to represent the Pettitioner on his appeal. Upon receipt of the trial court's findings the Court of Boppers, 11th District, reinstated Pettitioner, arose appeal, after abatement to determine counsel on appeal by the trial Court. The trial Court overruled Pettitioner's position, or request.

*17 On April 14th, 2005, Philister filled his prove appeal with the Eleventh District Court of Appen at Eartland, Texas, raising three issues on appeal: (1) In Philister's first point of error, he contested that the trial court closed its discretion by the denial of assistance of counsel on appeal for Pellitioners Post-Constitution, Ark's 64.01 (e.g. 10) there is no. 262 evidence that was secured and in relation to the offense that is the basis of the challenged conviction and was in the possession of the state and state agents during the trial of the offence (1) not available, or (2) available, but not technologically capable of providing probable results (2) through no fault of the convicted person, for reasons that are of a nature such that the interests of yonder required; DNA testing, and; (3) In Philister's second point of error, he contested that appointed trial attorney Mr. Alex Esyram for his Art. 61 (e.g. 1) Texas Code of Criminal Procedure, violated Pettitioners, The Pross rights, by failure to investigate exculpatory evidence and present it to the Court under the filling of Ark's 61 (e.g. 10), he was ineffective in preparing and following procedural requirements in post-conviction that visited Pettitioners right to equal protection of the law. In support of these issues Mr. Esyram failed to corpore in relation that is the basis of the challenged conviction (case- (1) 261 (e.g. 1) and relating exculpatory evidence filed in the 326th District Court of Taylor County's Family -

*18 District Court that by statute has primary responsibility for cases involving family law matters. (Tex. Court Code Ann 55 24.101, 24.624 West 2004). The evidence regarding the victim's pregnancy and biological child at the time of Editional Jan. 7, 2001 trial). (Case 5054-CX) 3) In Editioners third point of error, he contented the denying of Forensic, and DNA Testing bearing where Dealing Violations of excubators evidence existed, exists that were, and are in possession of the State, and State Agents. All evidence that has been hindered in filed in the 526th District Court of Taylor, County which is considered a (closed and sealed file) (the evidence filed in 526th District Court was secured in relation to the offense that is the basis of the chathamged conviction and was in the possession of the State and State Agents from Child Protective Services and Medical Staff in. (Nurses, Dachers, and Experts).

The Eleventh District Court of A gperts at Eertland Town, handed down its Opinion, affirming the order of the trial court on February 27,2015.

*19

Grounds for Review

• Ground one:

Whether the Eleventh District, Court of Appeals erred in the factuel sufficiency review that the trial court doused its dis

*20

Arguments And Authorities

Question slor Review, Ground One: Whether the Boventn Court of Appents erred in application of correct factual sufficiency review, where the trial court aloused its dissection in not providing Pettitioner adequate leapt assistance of counsel for his proctural requirements, required in his post-conviction for forensic DNA testing and his appeal, under stututes of the Tex. Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2005).

Argument

The legislature has provided indigent petitioner's the right to appeal the trial court's decision on motions for post-conviction DNA testing. see Murphy v. State, 115.14.3d 946 (Tex. App.Dallas 2005). Tex. Code Crim. Procx Ann art. 64.05 (Vernon Supp. 2005). This statutory right includes representation by appointed counsel on appeal of the ruling. see Gray 4. State, 64 S.M. 3d 935, 857 (Tex. App-Maco 2002, no pet.). The procedures for post-conviction DNA testing was authorized by legislature in the pursuit of justice. Decause art. 64.05, 85 does not differentiate between the trial and appellate phases the court has held thut on indigent person has statutory right to assistance on appeal under Chapter 64, Tex. CED.; The statute does not

*21 Bulline" reasonable grounds, but courts of appeals have developed some guiding pricipes. Esquire Cantlerres, 357 S.W. 3d 855 (2011 Tex. Crim. App. Leels 545 at 855). Though a con- victed person needs not prove entitlement (or a prima facie case of it) to DNA testing as a precondition for obtaining appointed counsel. Whether reasonable grounds exist for testing necessarily turns on what is required for testing. Basic requirements are that biological evidence exists, that evidence is in a condition that it can be tested, that the identity of the perpetrator is or was an issue, and that this is the type of case in which exculpatory DNA results would make a difference. Kutterer v. Chate, 75 S.W. 3d 129, 154 (Tex. Crim. App. 2082); Smith v. State, 1105 S.W. 3d 31d (Tex. Crim. App. 2005) (convicted person must have that had results of the DNA test been available at trial, there is a ${51}^{20}$ chance that the would not have been con- victed). The Tex. Code Crim. Proc Ann. ch. 64 is simply a pro- cedural vehicle for obtaining certain evidence, which might then be used in a study or biberal tobacco processing. In Gutterer, the Court of Criminal Appeals has mould clear that before appointing an alter- er for an inmate seeking post-conviction DNA testing a trial judge needs reasonable grounds to believe that (1) a favorable foremix test is a viable, fair, and rational possibility, and (2) such a test could physiology show that the inmate would not have been convicted. Id. before ordering testing, an inmate must establish, by a preponderance of the evidence, probable cause that he would not have been (20.)

*22 Conwicked if excubpatony DNA results are obtained. Alternatively this Court has expressed the report of the reusonable grounds questions in the opposite direction. The trial judge could simply assume that the result of any proposed DNA testing is exculpatory in the sense that the test will prove that the inmate is not the source of that DNA. That is a favorable or exculpatory test result. But if that favorable or excubpatony finding would not change the probability that the inmate would still have been con- wicked, then there are no reasonable grounds to an attorney and a favorable DNA test result must be the sort of evidence that would affirmately test doubt upon the validity of the inmate's conviction, otherwise, DNA testing would simply mouldy the waters. First, the trial court did appoint an attorney for Petitioner, therefore the judge must have been under prohibe grounds that excubpatony evidence does exist. Second, the exculpatory was not thoroughly obtained when DNA tests were denied from the victors born child Burling petitioners conviction. Third, if an under age girl who is the victim in petitioners conviction, who turns out pregnant while he is being con- wicked, doesn't cast doubt upon the validity of petitioner's conviction. While she is still under the age of consent, then State laws are lawless in this State and one a violation of the United States Constitution. The Petitioner has two [21.]

*23 questions for the Court of Criminal Appents: 1) Do the Texas State laws allow a district court to convict a person for sexually assaulting an under any victim and inpregnating her, while he is in- corsected and being convicted, but there is no possible

*24 the Court of Criminal Appents jurisdiction on a Federal Sufficientery review pursuant to Clawis v. State, 432 S.W. 2d 124 (Tex. Crim App. K84). -3) Did the Court of Appents properly apply the correct standard of review in Politbanks case? Id. The Court of Criminal Appents while not permitted to conduct a de novo federal sufticiency review, can be called upon to determine whether the Court of Appents applied the correct standard of review and considered all of the evidence that is relevant in the case. Cels v. State, 458 S.W. 2d 404, 405 (Tex. Crim. App. K67). This Court's only review in the event of any improper application of the federal sufticiency review is to reveal the Court of Appents decision and remand, with instructions, for appropriate review, see Johnson v. State 33 S.W. 5d 1 at 5 (Tex. Crim App. 2090). Johnson v. State 678 S.W. 2d 705 (Tex. App.-Corpus Christi, 1858). A review of the federal sufticiency of the evidence on the demands of a criminal defense differs from a review of the federal sufticiency of the evidence on an affirmative defense in at least two significant ways: First, it involves issues of federal constitutional dimension and constitutional laws. Second, it involves a much greater burden of good at trial. Clawis v. State, 476 S.W. 5d 438 at 452 at 7 (Tex. App.-Dallas 1885) (various ways of approach of a federal sufticiency review). In Politbanks case the Court (23)

*25 of Appeals did not apply proper review, because at the first stage of Politioers post-conviction motions for art. 41.91-64.05 the trial judge appoints an attorney for Politioers. During his investigation at the evidence at the victim's pregnancy and born child he suddenly choses his law practice and files a motion to which- draw from politioers cases the advises in a letter dated August 23, 2012 at all the avenues he was in- vestigating to obtain the evidence related for politioers (innocence of the Charges). He explained that it seems was denied, he would discuss other remedies to spin the evidence in the sealed File for Cmum No. 5034-CX. In addition he also advised that his new job would start in October at 2012 and that before them, he had made arrangements with the Court on who it would appoint to take over his cases including piti- tioners. He stated that on Friday, September 23, 2012 at 4:00 p.m., the Trial Court would determine who it would appoint as piti- tioners new attorney, second letter from Mr. Alex Eyssen as Exhibit 1), with PQA. The trial court dossed its discection by not appointing another attorney to finish what Mr. Eyssen had stated was available in remedy. The trial court dossed its discection when it denied piti- tioners. Debt testing of the victim's biological child, and dossed its discection when not providing counsel on appeal under Statutes at Chapter 64, Tex. CC8.

*26

Arguments And Authorities

Questions for Review, Ground Two: Whither the Elwenth Court of Appeals erred in the factual Sufferency review that appointed counsel for art. (14.01c) provided in effective assistance of counsel by failure to investigate exculpatory evidence in violation of See Process, and failure to prepare and follow statute procedural requirements for PAtitioners appeal pursuant to Anders Deid, Tex. Cole Crim. Proc. art. (14.05 (Vernon Sypp.2003)

Argument

In May 15, 2012 PAtitioner filed two motions with the trial court pursuant to art. (14.01-64.05 Tex. Cole Crim. Proc.; 1) motion requesting appointment of counsel to assist in the obtaining of an order for Forensic/DMA testing and; 2) motion requesting Forensic/DMA testing of evidence to prove PAtitioners innocence with supporting affidavior and Exhibit 2 of the exculpatory evidence relating to PAtitioners changes and of Pence. In May 30, 2012 by order of the trial judge, Mr. Alex Eyssen was appointed to represent PAtitioner pursuant to art. (14.01e) Tex. Cole Crim. Proc. see attached Exhibit 3 - (Order Appointing CounseL). Mr. Eyssen started an investigation of the exculpatory evidence that could prove PAtitioners innocence or (25.)

*27 that would affirmately "cast doubt upon the validity of Politicne's convection. Suddenly in the middle of his investigation retrieving factual evidence he filled able to withdraw from Politicne's case. He failed to complete his duties into the investigation of the exemplatory evidence that would prove Politicne's innocence. He also failed to provide advisement of the procedural requirements under Chapter 61 and Politicne's agreed process. Mr. Eysen failed to function in his representation as counsel quaranted by the Sixth Amendment violating Politicne's rights under the Fourteenth Amendment to the Process and Equal Protection of the new (U.S.C.A. Amends (1", 14") "Standard Review: To prevail on an ineffective assistance of counsel claim, the defendant must first show that this consult performance was deficient to the extent counsel failed to function as the "counsel quaranted by the Sixth Amendment. Dividend v. 1833/1834, 416 U.S. 664, 681-684, 644, 1045.C. 2053, 401.E222674 (1944); Jackson State, 475 S.W. 2d 714, 771 (Tex Crim. App. 1444). The second step requires the defendant to establish that counsel's deficient performance prejudiced his defense. Dividend, 416 U.S. at 681-684, Jackson 475 S.W. 2d at 771. Requires that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would (26.)

*28 now been different. Stridtland, 100 U.S. at 644, 104 S.C. at 2069 , Jackson, 771 S.M. at 771. In addition, when reviewing a claim at ineffective, a court must indulge a strong presumption that counsels conduct falls within the wife range of reasonable professional assistance, that is the determinant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. In at 644, 104 S.C. at 2065. The Court at Boppers misapplied but not Sufficiency review under the Lewis standard where the questionable as to why would appointed attorney Mr. Exrson not like an Ander's brief of Relations can work so letipious when he withdrew from the case. But Mr. Exrson's reasons were not that Delitioners can work letipious, but that he found another job and would be closing his law practice and, at least, Exhibit 1.) Therefore Mr. Exrson was deficient when he did not make proper arrangements for re-appointment of council as he started in his letter. An appointed attorney must withdruw from a letipious appeal by filling a motion to withdraw and a brief in support of the motion, commonly known as an Ander's Brief. The purpose of an Ander's Brief is to show counsel performed a conscientious examination of the record and the appeal is so letipious, that the transport application should be denied his right to appointed counsel or appeal. See Churgay's Study, VII S.M. 3d (27.)

*29 YUH at 147 (Tex. App.-Dallas 2005). An Appelland's altonny must file a brief in which he concludes the appeal is wholly feludous and without merit. The brief purports to be an Anders brief. See generally Anders v. Valittornis, 386 U5. 739, 475 C4. 1546, 184. Ed.2d 445 (1467). Whether an altonny may file an Anders brief in an appeal of a trial court's ruling on a post-conviction motion for DNR testing appears to be an issue of first impression in this state. Therefore the Court of Appents did not address whether Anders is applicable to the appeal before the Court, because appointed council is not allowed to make feludous arguments in an appeal from a criminal conviction. See Jeffery v. Study, 495 S.vi. 2d 776, 719 (Tex. App.-Dallas 1895, no pet.) Analysis of the relevant study of events there are three shows to a motion for post-conviction DNR testing. The first show is the motion itself and whether it complies with article 64.91. The second show is the Court's determination of whether there is any biological evidence that should be tested, and whether there is a reumable probability the evidence would grow the petitioner's inrocerer. See Thompson v. Study, 45 S.vi. 5d 464, 472 Tex. App.-Hawton [19 DNR] 2002, pet. ref.1). The third show is the trial court's determination of whether the text results are impossible to the petitions. Therefore, study, 415.vi. 3d 644 at 449 (Tex. App.-Dallas 2005), Plen. v. v. Study, 44 S.vi. 5d 55, 54 (Tex. Crim. App. 2002) (citing Cunnam v. Study, 455 S.vi. 2d 76, 79 (Tex. Crim. App. 1447). (29.)

*30 With the relevant law in mind, the court concludes that to perform a conscientious examination of the record in an appeal from a period of a motion for post-civilian DNB testing appointed counsel should follow certain standards. First, counsel should examine the politioess motion and supporting evidence to determine if they meet the statutory requirements of article 6121. Second if applicable, counsel should analyze the studies response to the motion, the trial courts ruling on whether to order DNB testing of the evidence at issue and any findings made in conjunction with the ruling. Finally, should the court order DNB testing counsel should analyze whether the trial court as well by concluding the results were not favorable to the politious. As required by Dettsey, counsel must make appropriate citations to the record and to app- liende ciudades and case law to show conscientious examination of the record. See Dettsey, 1995 S. 1. 26 of TIP. Counsell must also proxy in the brief the appellate court accent motion to withdraw. Applying the relevant factors and standards for an allied naj diligent representation. Mr. Egston was ineffectivé in his representation under Sheldhwood. He did not complete his investigation of the execut quitory evidence to present it to the trial court. He did not inspect the record file in the 526 Dissed Court (cause no. 5034-EX) as he promised he would, and in the event that the Court would deny his re-

*31 went he would discuss other remedies to gain access to the information contained in (eurove no ${}^{4}503$ yice). Mr. Evgsum was ineffective by failing to estowet, unestowet of remedies in his representation. See alharney letter, (Exhibit ^[4] 1) Instead, Mr. Evgsum withdraws from the cute abandoning the representation and the procedural requirements for Politicers agreed under acts 64.01- 64.65 of the Tox. Code Crim. Proc. (Vernon Supp. 2005). Politicers invokes the Texas Court of Criminal Appetts to review politeness claims of ineffective assistance of criminal under Strictivand where appointed Council was belicient and projudiced the outcome of the representation in a Forensic Debt testing hearing of a biological child which was born of the victim while Politicand was being proceeded and convicted for sexual assault of a child with the same victim, and Shute Prosecutors, and Shute Argots were aware of the presqumacy and were in possession of the victim while all this took place. Politicers invokes a Clowns standard review whose Court of Appeal misapplied Tookush Subtilionary review of the evidence relating to "Govorote evidence" which would prove Politicers transcend. Chovile v. Shute, 232 s.v. 2d. 126 (Tox.Cr. App.1446) Chovile v. Shute, 146 s.v. 2d at 429 as (citing Exports Schwester, 146 s. 4. 2d at 352 C.C.Cre. Crim. App. 1445).

*32

Arguments And Authorities

Questions for Review, Ground Three: Whether the Eleventh District, Court of Appeals erred in the Federal Suftieloney review that exculpatory evidence exists, that has been hindered from Pettitioners trial which is a violation pursuant to "Brady and was through no fuxult of the Pettitioner, that the evidence was not disclosed until now. Pettitioner has filed his motions pursuant to Tex. Cole Crim. Proc. Ann. art. 64.01-64.05 (Vernon Supp. 2003), seeking DAB testing hearing from alleyal dictim and her biologist born child under these statutes.

Argument

Pettitioner invites the Court of Criminal Appeals in a Clawis standard review, where the Court of Appeals misapplied a proper factual Suftieloney review. Where the Pettitioners case invitees an under ayed victim that was pregnant and gave birth to a biologist child while Pettitioner was belny procecated and conviated during his Sun. 8, 2001 trial which is the basis of the Pettitioners Case. The State Procecations and State Beads is. (Abitane Police Dept. and Child Protective Services and Experts, Doctors and Nurses) read the evidence of the victim's pregnancy to prosecute and conviat Pettitioner.

*33 See: (Exculpatory evidence report), Exhibit 2. This exculpatory evidence related to Pettitioners conviction was filed in the 526th District Court of Taylor County. It was suppressed from Pettitioners conviction in San. 8, 2001 and is still being withheld under art. 64.01-64.05 Tex. Code Crim. Droc. (Nernon Supp. 2003) and is a Deadly violation. Commonly known as Deadly v. Maryland, 375 U.S. 83 (1965) in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process, evidence known to the prosecution that is favorable to a defendant's case and material to the issue of a visit or to punishment and that the prosecution is delighted to disdore to the defense. See Dikapal 1, State, 228 s.w. 3d. 145 (Tex. App.-Dallas 2001). Under a claim of Deadly v. Maryland, 375 U.S. 83, 87-88, 83 S.C. 1144, 10 L.E. 2825 (1967), the State has an affirmative duty to disdore evidence favorable and material to a defendant's yacht or punishment under the due process chance of the Fourteenth Amendment. Thomas v. State, 841 S.W. 2d. 364, 407 (Tex. Crim. App. 1962). This duty attaches with or with out a request for the evidence. United States v. Ducrey, 475 U.S. 671,682, 105 S.C. 8315, 87 L.E. 2d. 491 (1995) when unsure of whether to disdore the evidence, the proverb or should submit the evidence to the treat court for consideration. United States v. Buyers, 429 U.S. 671, 106 S.C. 2382, 44 L.E. 342 (1974), Thomas, 841 S.W. 2d. 424 (197).

*34 Pâtitioner contests that the exculpatory zeated the involving the pregnant victim (case 29. 5034-CE) affirmatively that weight as to whether the Pattitioner would have been convicted because the evidence is favorable to the validity of Pattitions's conviction. Tex. Cole Crim. Proc. art. 64.04 (Vernon Supp. 2003). In Doxley the Supreme Court responded the definition of favorable evidence to include both exculpatory evidence and ingeachments evidence, because such evidence is favorable to the accrual, so that, it disdosed and used effectively it may make the difference between conviction and ayultal, Doxley, 475 U.S. at 676,105 SE. at 3720. The Doxley Court eliminated the request group of Doxley and revised the three standards of materiality in boys to two standards. First in situations of the knowing use of perjured testimony the Court retained the homeless error standard, Doxley, 475 U.S. at 674,105 SE. at 35 82 029. The Court then combined the materiality standards for situations where the prosecutor failed to disdose favorable evidence. The Court found the Strickland V. Mashinston, 446 U.S. 664,104 S.E. 2052,90 L.EL22614(1984). formulation of the boys test for materiality sufficiently flexible to cover 'no request', general request' and 'specific request' cases of prosecutorial failure to disclose evidence favorable to the accrual. Pattitioner argues that the court of appeals employed an improper standard for reviewing a ponternful Doxley vithation by re-

*35 jetting the evidence of the seated like where the victim was pregnant at the time Palliative was being proceeded and consisted for sexual assault charges on this under-ward victim. Thompson &; State, 46 S.M. 3d 605 4612 (Tex. Crim. App. 2002). Thompson &; State, 36 S.M. 3d 821, 626 (Tex. App. 2001). The evidence in the seated like (5034-CX) is material and there is a reasonable probability that but the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to under- mine confidence in the outcome, Doubts, 415 U.S. at 612105 S.C. at 3525 , Thomas, 441 at 404 of 612105 S.C. The States have an affirmative duty to disclose exculpatory evidence that is material either to guilt or punishment. Doubts, 315 U.S. at 46, 45 S.C. 444 , Freeman &; State, 230 S.M. 3d 342 (Tex. App. - Earland 2001), Thompson &; State, 46 S.M. 3d 605, 612 - 15 (Tex. Crim. App. 2002). The States duty to reveal bruky material attaches when the information comes into its possession, not when it is requested. It is clear that with the evidence in this (cute like 5034 - CX) that the State knew the victim was "pregnant", and convicted Palliative for the "victims pregnancy." Thomas &;. State, 441 S.M. 2d 344. To establish reversible error, a determinant must show that (1)-the State failed to disclose evidence, regardless of the prosecution's good or bad faith, (2)- the withold evidence is favorable to him and (3)-(34)

*36 the evidence is material, there is a probability that hard the evidence been disclosed the outcome of the trial, would have been different, (Burrington, Pg. 5.12, 3d at 612 C. 26). Usually a determination concerning the materiality group of Druby involves balancing the strength of the exculpatory evidence against the evidence supporting the conclusion Id at 615 C. 27. Sometimes what appears to be relatively inconsequential piece of potentially exculpatory evidence may take on added significance in light of other evidence at trial. In that case a reviewing court should explain why a particular Druby item is especially material in light of the entire body of evidence. (Burrington, Pg. 5.12, 3d at 615 C. 27 (Tex. Cirm. App. 2002). Politions invales the Court of Criminal Appents under Alexis v. State, 972 5.122126 (Tex.Cr. App. 1946) where Court of Appents misapplied factural Sufficiency Review in Politions cute of the exculpatory evidence that would prove that he is innocent of the charges of copresented sexual assault. Since the creation of the Texas Court of Criminal Appents in 1941 a graduate jurisdiction has included the power to examine factual sub- dictionary and every opposite court with criminal jurisdiction recognized a tendency. (State, 972 5.122126 (Tex.Crim.App. 1946).

*37

Prayer for Relief

Therefore, Publisher group that this Honorable Court grant Publishers petition for diserdionary ristew, that this course be sat for submission in the Court of Criminal Appests, and that after submission, this Court will reverse the judgement of the Court of Appests, and re-mend the Cute for a new trial, and such other relief at law this Court deems appropriate.

*38

Certificate of Service

I hardly certify that a true copy of Petitioners, petition for discerctionary review has been seoud upon by mail by US. Postul Service first-class on May 27, 2015 to the Texes Court of Criminal Appents of P.O. Box 12509, Capitol Station, Austin, Texes 19111.

Inmate's Unssivon Declaration

My name is Daniel Vasquer Dominguer, my date of birth is July 17, 1967, and my inmate identifying number, is 1555944, I am presently incarcerated in the West Unit, in Amarillo, Potter County, Texas 19107. I declare under penalty of perjury that the foregoing is true and bercet.

Executed on the 27t day of May, 2015.

*39

Appendix
The Court of Appeals Opinion (Affirmed)

*40

Opinion filed February 27, 2015

In The

Eleventh Court of Appeals

No. 11-12-00349-CR

DANIEL VASQUEZ DOMINGUEZ, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 13674-B

MEMORANDUM OPINION

Daniel Vasquez Dominguez appeals the trial court's order denying his motion for DNA testing of evidence related to his conviction for aggravated sexual assault of a child. Because we conclude that the trial court did not err by denying the motion, we affirm.

Background Facts

Appellant was indicted in 2000 for the offenses of aggravated sexual assault of a child and indecency with a child. On January 8, 2001, he entered a plea of no

*41 contest to the offense of aggravated sexual assault of a child. Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt and placed Appellant on community supervision for eight years. The State subsequently filed a motion to adjudicate. The trial court found that Appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and sentenced him to confinement for thirty years. The sentence was imposed in open court on February 10, 2006. Appellant attempted to file a direct appeal from the judgment adjudicating guilt, but we dismissed the appeal for want of jurisdiction because the appeal was not timely filed.

On May 15, 2012, Appellant filed a pro se motion in the trial court for postconviction forensic testing. The trial court appointed counsel for Appellant in connection with the motion for postconviction forensic testing. Appointed counsel subsequently filed a motion to withdraw that the trial court granted. Appellant then filed this appeal. Upon our receipt of Appellant's pro se notice of appeal, we entered an order abating the appeal that required the trial court to make various findings. Pursuant to our abatement order, the trial court made the following findings:

1. On July 28, 2000, the trial court determined that the Appellant was indigent.
2. On February 10, 2006, the trial court revoked Appellant's community supervision, convicted him, and sentenced him to 30 years in prison. The Appellant has remained incarcerated since that time.
3. The trial court has received no information indicating any change in Appellant's financial circumstances.
4. Therefore, the trial court determines that Appellant is still indigent.

*42

1. On May 30, 2012, the trial court appointed Mr. Alex Eyssen to represent Appellant in obtaining DNA testing pursuant to Article 64.01(c), Texas Code of Criminal Procedure.
2. On December 19, 2012, the trial court[] allowed Mr. Eyssen to withdraw because he was closing his law practice and leaving the [S]tate of Texas.
3. Appellant is not currently represented by counsel.
4. Appellant's attorney did not abandon the appeal; he was allowed to withdraw by the trial court.
5. On October 31, 2012, the trial court issued an order finding that: ---The State's (criminal) case was based entirely on witness statements, and ---No physical evidence was seized by law enforcement, and ---No physical evidence was in possession of the State during the trial of the offense.
6. In the October 31, 2012[] order, the trial court also found that the Appellant was not entitled to DNA testing; and, the trial court declined to order any DNA testing.
7. There are no reasonable grounds for the Appellant to file a motion for forensic DNA testing.
8. New counsel should not be appointed to represent the Appellant on appeal.

Upon receipt of the trial court's findings, we reinstated this appeal. Analysis Appellant presents three issues on appeal. In his first issue, Appellant complains of the "denial of assistance of counsel." In support of this issue, he alleges that his appointed counsel was ineffective "assisting in the investigation of

*43 evidence filed in another court." Specifically, he contends that counsel did not thoroughly investigate the evidence regarding his victim's "pregnancy" case filed in the 326th District Court of Taylor County. ^[1] In his second issue, he complains of "violations of due process," "ineffective assistance of counsel," and "violation of equal protection of the law." In support of his second issue, he eointends that trial counsel was ineffective for failing to present evidence from the 326th District Court. In his third issue, Appellant complains of the "denial of forensic, DNA testing hearing by Brady violations of exculpatory evidence related and filed in the 326th District Court."

This appeal was brought under Chapter 64 of the Code of Criminal Procedure. This chapter authorizes DNA testing in cases where the applicant meets the relevant requirements. Tex. Code Crim. Proc. Ann. art. 64.03 (West Supp. 2014). Chapter 64 also gives appellate courts jurisdiction to review an order by a trial court denying a request for postconviction DNA testing for cases in which the defendant was not given the death penalty. Id. art. 64.05 (West 2006). However, in an appeal from the denial of a request for DNA testing, we may not consider any claims that fall outside the scope of Chapter 64. In re Garcia, 363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.). "Chapter 64 is not an invitation to review every potential error in the underlying trial proceedings; instead, it is simply a procedural vehicle for obtaining evidence 'which might then be used in a state or federal habeas proceeding." Id. (quoting Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005)).

A trial court is only required to order DNA testing under Chapter 64 if the relevant statutory requirements are met. Crim. Proc. art. 64.03(a). As noted above, the trial court based its order denying Appellant's request for DNA testing

*44 on the fact that the State's criminal case against Appellant was based entirely on witness statements, that no physical evidence was seized by law enforcement, and that no physical evidence was in possession of the State during the trial of the offense.

A convicting court may base its decision regarding a Chäpter 64 claim on the sufficiency of the State's written explanation. Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd). In an appeal of a trial court's decision regarding a Chapter 64 claim, reviewing courts "defer to the trial court's determination of historicál facts, and its application of law to the facts if it turns on credibility and demeanor, and review de novo applications of law to the undisputed facts." Id. Under this standard, reviewing courts "defer to a trial court's finding as to whether the claimed DNA evidence exists and is in a condition to be tested." Id. The clerk's record contains a letter from an assistant district attorney to Appellant's counsel advising him that Appellant's criminal case "was based entirely on witness statements. There was no physical evidence of any kind taken by the police."2 There is also a letter in the clerk's record from Lieutenant David Atkins of the Taylor County Sheriff's Office addressed to the trial court that confirms this same information. In light of the standard of review governing this case and based on the record, we conclude that the evidence is sufficient to support the trial court's determination that no DNA evidence exists.

The bulk of Appellant's claims on appeal focus on his efforts to obtain evidence from another proceeding. By its express terms, Chapter 64 only applies to the testing of evidence "that was secured in relation to the offense that is the basis of the challenged conviction." Crim. Proc. art. 64.01(b). Accordingly, Appellant's claims seeking to obtain evidence from another proceeding are beyond

*45 the scope of Chapter 64, and the trial court did not err in denying Appellant's request to test the evidence from the family court proceeding. Furthermore, Appellant's claims of ineffective assistance of counsel related to obtaining evidence from the proceeding must also fail because the requested evidence was beyond the scope of Chapter 64.

Regarding Appellant's request for the appointment of new counsel, Chapter 64 specifies that " $[t]$ he convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent." Crim. Proc. art. 64.01(c). The trial court initially appointed counsel for Appellant, but subsequently determined that " $[t]$ here are no reasonable grounds for the Appellant to file a motion for forensic DNA testing." Based upon this determination, the trial court concluded that it was not obligated to appoint new counsel on appeal. In this case, the trial court had evidence that no biological evidence existed that could be tested. That evidence provided sufficient justification for the trial court to determine that there were no reasonable grounds for the Chapter 64 motion to be filed. See Blake v. State, 208 S.W.3d 693, 695 (Tex. App.—Texarkana 2006, no pet.). Accordingly, we cannot conclude that the trial court erred by failing to grant Appellant's request for the appointment of new counsel. See Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (stating that courts have found that reasonable grounds are not present if no evidence exists or if it has been destroyed).

In his brief, Appellant additionally challenges his original conviction. Chapter 64 does not confer jurisdiction upon this court to entertain collateral attacks on the trial court's judgment of conviction or to review, under the guise of a DNA testing appeal, anything beyond the scope of the request to conduct DNA

*46 testing. See Reger v. State, 222 S.W.3d 510, 512-13 (Tex. App.—Fort Worth 2007, pet. ref'd); Hooks v. State, 203 S.W.3d 861, 866 (Tex: App.—Texarkana 2006, pet. ref'd). Accordingly, we do not entertain Appellant's challenges to his original conviction.

For the foregoing reasons, we overrule Appellant's three issues challenging the district court's decision to deny his request for DNA testing and his request for the appointment of new counsel.

This Court's Ruling

We affirm the order of the trial court.

JOHN M. BAILEY

JUSTICE

February 27, 2015

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

*47

(Exhibit 1 )

Court Appointed Councils Letter

*48 LAW OFFICES OF ALEX B. EYSSEN, PLLC Post Office Box 3321 Abilene, Texas 79604 WWW.EYSSENLAW.COM

ALEX B. EYSSEN ALEX@EYSSENLAW.COM

Telephone: (325) 267-6030 FACSIMILE: (325) 267-6031

September 17, 2012

Honorable Lee Hamilton Judge, 104th District Court 300 Oak Street Abilene, Texas 79602 Re: Cause No.13674-B; State of Texas vs. Daniel Dominguez Dear Judge Hamilton: Please allow this letter to serve as a request for a hearing on Defendant's Motion for Forensic and DNA testing filed pro se by my client Daniel Dominguez.

In addition, I would request a hearing on the Motion to Withdraw and Request for Appointment of Counsel that was previously filed by my office. Both matters could be set at the same time.

Lastly, please allow this letter to serve as a request for my client to be bench warranted from the Nathaniel Neal Unit to Abilene so that he may attend these hearings in person.

Thank you for your attention to this matter.

| | Very truly yours, | | :--: | :--: | | Alex B. Eyssen | |

*49

TAUSE NO. 13674-B

STATE OF TEXAS

vs.

DANIEL VASQUEZ DOMINGUEZ

COPY

8

OF $8$ OF DISTRICT CLERK TAYLOR COUNTY, TEXAS:AS DEPUTY

MOTION TO WITHDRAW, REQUEST FOR APPOINTMENT OF COUNSEL, AND NOTICE OF HEARING

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Alex Eyssen, Movant, and brings this Motion to Withdraw, Request for Appointment of Counsel, and Notice of Hearing and in support thereof shows:

1. Movant is the court-appointed attorney of record for Daniel Vasquez Dominguez.
2. Good cause to withdraw exists as specified below: a. The attorney of record, Alex Eyssen, is closing his law firm effective October 1, 2012. It is neither expected nor anticipated that the above-referenced case will be resolved by said date. Thus, the undersigned respectfully requests that he be allowed to withdraw and that another attorney be appointed to handle the above-referenced case.
3. The following settings exist in the above-reference case: a. Hearing on the Motion to Withdraw: September 21, 2012 at 4:00 p.m.
4. This request is not sought for delay.

NOTICE TO CLIENT

A copy of this motion has been delivered to Daniel Vasquez Dominguez. The last known mailing address of Daniel Vasquez Dominguez is # 1355966 c/o Nathaniel Neal Unit, 9055 Spur 591, Amarillo, Texas 79107.

*50

NOTICE OF HEARING

This Motion is set for hearing at 4:00 p.m. on September 21, 2012 in the ${104}^{\text{th}}$ District Court in and for Taylor County.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Movant prays that the Court will grant his motion to withdraw and appoint substituted counsel.

Respectfully submitted, LAW OFFICE OF ALEX B. EYSSEN, PLLC Post Office Box 3321 Abilene, Texas 79604 Tel: (325) 267-6030 Fax: (325) 267-6031 By: Alex B. Eyssin State Bar No. 24036542. ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

This is to certify that on 2012 , a true and correct copy of the above and foregoing document was served on the Taylor County District Attorney's Office via hand delivery.

*51

(Exhilol 2 )

Excubatory Evidence Filel In The 526" Districd Court Under Case File 5054 - CX

*52

PERMANENCY PLAN AND PERMANENCY PROGRESS REPORT

The Texas Department of Protective and Regulatory Services presents this report to the Court to enable the court to review both the permanency plan for the children the subject of this suit and the progress that has been made toward ensuring that a final order consistent with this plan is rendered before the date for dismissal of the suit.

The Department was appointed Temporary Sole Managing Conservator of the children on $\to$ May 22, 2000. The children came into conservatorship for the following reasons:

Diana Flores made an outcry that her stepfather, Daniel Dominguez raped her four times. Initially the investigator asked the mother to allow Diana to live with her grandmother until the investigation was completed. Mother and stepfather did not want her to be away from home so the child was removed from the home. Daniel Dominguez was arrested and Diana was allowed to go back to the home to complete summer school. Diana was to have no contact at all with Mr. Dominguez and she would be removed if he got out of jail and moved back home.

1. SUBJECT CHILDREN

NAME OF CHILD DIANA FLORES

DATE OF BIRTH 11/09/85

TYPE OF CURRENT PLACEMENT OWN HOME 2. PERSONS RECEIVING THIS REPORT

FATHER: Deceased MOTHER: Maria Flores 873 Sycamore St. Abilene, TX 79602

*53

COMMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME:
PAGE 2

ATTORNEY FOR PETITIONER:

Assistant District Attorney
Glenna Cordray
300 Oak St.
Abilene, Texas 79602

ATTORNEY AD LITEM FOR THE CHILD:

Stanley Smith Attorney at Law P. O. Box 3579

Abilene, Texas 79604 ATTORNEY GARDIAN AD LITEM FOR CHILD Shane Deel Attorney at Law 1057 S. $3^{\text{rd}}$ Abilene, Texas 79602 A COPY HAS ALSO BEEN PROVIDED TO THE FOSTER PARENT OR DIRECTOR OF GROUP HOME OR INSTITUTION WHERE EACH CHILD IS RESIDING 3. RECOMMENDATION FOR DISMISSAL OR CONTINUATION OF SUIT

The Department recommends that this suit be continued. The Court: $◻$ has not yet set a dismissal date for this suit, and the Department recommends that the date for dismissal of this suit be, has previously set the dismissal date for this suit as May 28, 2001 which is consistent with the current permanency plan. $◻$ has previously set the dismissal date for this suit as $$ , which is not consistent with the current permanency plan. The Court has not yet granted a dismissal extension under TFC § 263.401 and the Department recommends that a new dismissal date be set for $$ .

An extension of the date for dismissal of this suit under TFC § 263.401, has not been previously granted in this case. 4. SERVICE

*54

All parties have been served. 5. COMPLIANCE WITH TEMPORARY ORDERS AND WITH THE SERVICE PLAN 5.1 SUMMARY OF ACTIONS TO BE ACCOMPLISHED BY PARENTS

Maria and Diana Flores were to have a psychological evaluation. Home studies were to be done on family members interested in having Diana live with them. Maria, Diana, Cindy and Melinda will all participate in individual counseling and family therapy as necessary.

5.2 EVALUATION OF COMPLIANCE

Maria and Diana have both had psychological evaluations. Home studies were ordered on Maria's grandmother, but the grandmother would miss her appointments and did not cooperate with the worker doing the home study. They all attended counseling until B.J. Mayben dismissed Cindy and Melinda from care and later dismissed Maria. Diana continued counseling until B.J. Mayben dismissed her $\to$ because she would not discuss the sexual abuse. Each time the counselor tried to get her to work through the problem of the sexual $\to$ abuse, she would change the subject. Diana told worker that her mother and sisters did not try to influence her in regard to the court case. However, Diana refused to testify and told this worker that she did not want to see Daniel Dominguez go to jail because it would upset her mother and sisters. Maria, Cindy and Melinda have telephone calls with Mr. Dominguez. Diana has no contact whatsoever with Mr. Dominguez. $\to$ Diana Flores is pregnant and due the first of June. She has prenatal care. 5.3 SUMMARY AND EVALUATION OF ACTIONS TAKEN BY THE DEPARTMENT PURSUANT TO COURT ORDERS AND THE SERVICE PLAN, INCLUDING REASONABLE EFFORTS TO PURSUE THE PERMANENCY PLAN FOR THE CHILDREN.

The Department has arranged and paid for psychological evaluations for both Diana and Maria Flores. The Department has arranged and

*55

paid for counseling for Diana and Maria Flores and Cindy and Melinda Dominguez. Maria Flores has not completed parenting classes as ordered by the court but has discussed parenting issues with therapist. 5.4 PROGRESS MADE TOWARD ALLEVIATING OR MITIGATING THE CAUSES FOR THE CHILDREN'S REMOVAL FROM THE HOME

Daniel Dominguez received six years probation and is now currently living with his sister at 3649 Swenson her in Abilene. There is still a protective order in affect where Mr. Dominguez is not to go within 200 yards of the house at 873 Sycamore or the children's schools. Maria states that she will not allow him to move back into the home. Maria and Diana have attended counseling. This worker has not seen any discourse between the mother and Diana or Diana and her sisters. 6. EVALUATION OF THE CHILDREN'S CURRENT PLACEMENT

6.1 PLACEMENT HISTORY

| Name | Type of placement | Date placed | | :-- | :-- | :-- | | Diana Flores | Basic Care foster home | $05/22/00$ | | Diana Flores | Home | $06/21/00$ |

6.2 APPROPRIATENESS AND SAFETY OF CURRENT PLACEMENT AND PROGRESS IN MEETING CHILD'S NEEDS

Diana is in the most appropriate placement, her home. It is safe as long as Daniel Dominguez does not return home. 6.22 Least Restrictiveness

The placement is the least restrictive because she is placed in the home with her mother and sisters. 6.222 APPROPRIATENESS OF ANY INSTITUTIONAL PLACEMENT N/A 6.23 Close Proximity

*56

6.232 APPROPRIATENESS OF ANY OUT-OF-STATE PLACEMENT

N/A 6.3 CONTINUED NEED FOR PLACEMENT IN SUBSTITUTE CARE N/A 7. DESCRIPTION OF THE CHILD'S CURRENT PERMANENCY PLAN(S)

The permanency plan for the child is: $⊠$ Family Reunification $◻$ Permanent Placement with Relative $◻$ Transfer of Conservatorship $◻$ Adoption $◻$ Permanent Placement with Non-Relative $◻$ Transfer of Conservatorship $◻$ Adoption $◻$ Foster care with long term commitment from foster family or facility $◻$ Foster care with no long term commitment from foster family or facility $◻$ Other living arrangement: [describe] $◻$ Independent Living (child will be able to live on his or her own and successfully manage his or her personal affairs.) $◻$ Long Term Care in Adulthood (placement in an institution as an adult due to a disability) $◻$ with guardianship $◻$ without guardianship

The approximate date for the achievement of this permanency plan - child is currently living in the home.

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8. PLANS, SERVICES, AND FURTHER TEMPORARY ORDERS NEEDED TO MEET THE CHILD'S NEEDS FOR SAFETY AND PERMANENCY AND TO ENSURE AN APPROPRIATE FINAL ORDER

8.1 IF THE PLAN IS REUNIFICATION, THE STEPS TO BE TAKEN TO HAVE THE CHILD RETURN HOME AND REACH A LEGAL RESOLUTION REGARDING THE CASE.

Diana is currently living with her mother. Daniel Dominguez received six years probation and is currently living with his sister at 3649 Swenson. 8.5 ADDITIONAL SERVICES AND ORDERS RECOMMENDED N/A

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FAMILY SERVICE PLAN
Cover Sheet II: Family Preservation

IDENTIFYING INFORMATION

| Name(s) of Parents | Date of Participation | Date Plan Completed | | :-- | :-- | :-- | | Maria Flores, Daniel Vasquez Dominguez | $2/21/2001$ | $3/5/2001$ | | Child(ren)'s Name(s) | | Month/Year of Next Review | | Diana Flores, Melinda Dominguez, Cindy Dominguez | $6/2001$ | |

PURPOSE OF THIS PLAN

To The Parent: CPS has developed this plan with you to help resolve family problems that affect the safety of your child(ren). If you carry out this plan successfully, CPS may end its involvement with you and your family. If you do not, CPS may:

• continue its involvement with you and your family, or
• recommend that your child(ren be placed in substitute care.

You and your worker will evaluate your progress in carrying out this plan within three months, or sooner if important changes occur.

EVALUATION OF PROGRESS

CPS will evaluate your progress with you on the basis of :

• your successful achievement of the goals stated in this plan;
• your successful completion of the tasks in this plan; and
• your ability to provide for the ongoing safety and well-being of your children

Information for this evaluation may come from any of the following sources:

• you and members of your family;
• CPS staff who have worked with you;
• the initial report or future reports of child abuse or neglect; and
• other agencies, individuals, and community professionals

Parents' Comments:

Contact Person - For information about your children, please contact

Signature - Parent

If the parents did not participate in developing this plan, explain:

Date CPS gave or mailed a copy of this plan to the parents:

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FAMILY SERVICE PLAN
YOUR RIGHT TO REQUEST A REVIEW

You may request a review of this plan at any time. You may also request an administrative review or a fair hearing if CPS denies, reduces, or terminates protective services that you have requested, or does not act promptly on your request for protective services.

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FAMILY SERVICE PLAN
Family Problems, Strengths, and Changes Needed

LIST THE REASONS FOR CPS INVOLVEMENT:

Diana Flores was sexually abused by her stepfather, Daniel Dominguez. Maria Flores did not provide protection for her daughter which resulted in her removal. Mr. Dominguez was arrested, and Diana was returned to the mother's care.

LIST THE UNDERLYING PROBLEMS CONTRIBUTING TO THE RISK OF ABUSE OR NEGLECT:

• Diana Flores is young and irresponsible.
• Parent did not protect the child from abuse.

LIST THE FAMILY STRENGTHS AND RESOURCES:

The family has been cooperative with services and worker since Mr. Dominguez was arrested. Maria Flores has employment. There is extended family support. The mother appears to love her children, and they are bonded.

SERVICE-PLAN GOALS CHANGES NEEDED TO REDUCE RISK What specific behavior(s) and condition(s) will demonstrate that the problems contribution to risk have been satisfactorily addressed and that the risk has been reduced? $\to$ - Maria Flores will see that Diana follows medical advice regarding her pregnancy. She will make sure that Diana is enrolled in WIC and follows her prenatal instructions from the doctor.

• Parent will demonstrate the ability to protect child from future abuse, and will show concern for child's future safety.

EMERGENCY CONDITIONS

PRS has determined that one of the following emergency conditions continues to exist for this case and, therefore, services continue to be necessary:

1) A child is at risk of abuse or neglect, as determined by PRS; 2) A child has been removed from his/her home and placed in PRS care; or 3) A child formerly in PRS care is at-risk of being returned to PRS care.

Tasks and Services for the Family

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FAMILY SERVICE PLAN

Goal Description:

Parent will demonstrate the ability to protect child from future abuse, and will show concern for child's future safety.

| Family Task
Cooperate | CPS/Other Service
Discuss with family | | :--: | :--: | | Maria will cooperate with the Protective Order and she will not allow Daniel Dominguez to come to the house at 823 Sycamore or take Diane anywhere Daniel Dominguez is present. | Worker will discuss with the family the consequences if Daniel Domingues breaks the Protective Order. | | Court Ordered: Yes | | | Beginning and Ending Dates (and/or Frequency) 03/01 to 06/01 | Court Ordered: Yes | | | Beginning and Ending Date (and/or Frequency) 03/01 to 06/01 | | Method of Evaluation:
Discussion with family | |

Goal Description:

Parent will demonstrate the ability to protect child from future abuse, and will show concern for child's future safety.

| Family Task
Cooperate | CPS/Other Service
Monitor and support | | :--: | :--: | | Maria Flores will not allow any contact of any kind between Daniel Dominguez and Diana Flores, including phone calls or letters. Maria Flores will not allow Daniel Dominguez to live in the same home with Diana Flores: She will report to CPS if Daniel Dominguez breaks the Protective Order. | Worker will monitor the home for compliance and support the family. | | Court Ordered: Yes | Court Ordered: No | | Beginning and Ending Dates (and/or Frequency) 03/01 to 06/01 | Beginning and Ending Date (and/or Frequency) 03/01 to 06/01 | | Method of Evaluation:
Monitoring in the home and discussion with family | |

Goal Description:

Maria Flores will see that Diana follows medical advice regarding her pregnancy. She will make sure that Diana is enrolled in WiC and follows her prenatal instructions from the doctor.

| Family Task | CPS/Other Service | | :-- | :-- | | Get medical help | Discuss with family | | Maria Flores will see that Diana Flores has medical
help through out her pregnancy. | Worker will discuss with the family the different
programs that Diana can access to help her
through her pregnancy. | | Court Ordered: No | Court Ordered: No | | Beginning and Ending Dates (and/or Frequency)
03/01 to 06/01 | Beginning and Ending Date (and/or Frequency)
03/01 to 06/01 | | Method of Evaluation:
contact with the doctor | |

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(Exhblat? 3 )

Jukya's Orlos Argointing Gounal

*63

NOTES

${}^1$ The 326th District Court is a "family district court" that by statute "has primary responsibility for cases involving family law matters." TEX. Gov't Code Ann. §§ 24.601,24. 634 (West 2004).

${}^2$ This letter also informs Appellant's counsel that the file in the 326th District Court from which Appellant sought evidence is a "closed and sealed file."