Case Information
*1 WR-81.972-04 81,972-04 WO3-25657-7 (A)
Request To Add Following Motion WO3-25713-U(A) To Record On Above, Appeal No. Citing-Actual Innocence! To The Honorable Judge of said Court.
Comes Now, Bobby DrewAutry, Ex Parte, Pro Se, And Request Enclosed Motion To Be Added To The Habeas Record of Above Numbered Writ, As All Law Guasted Affects WO3-25657-T(A) As Much As It Does WO3-25713-U(A). All Causes Heard In Same Heal- ing In Criminal District Court #3 on April 13, 2004. Rn# 9013442250, Vol. 456, Pages 125 and 136 Plus Any Other Pages Under These Cause No. 5: Respectfully Submitted:
RECEIVED IN COURT OF CRIMINAL APPEALS FEB 262015
Bony of 29606015 Bobby Autry*170196 mFconnell unit 3001 S. Emily Dr. Beeville, TY. 78103
*2
Cause No. W03-25713-4(6)
Motion To proceed Ex Parte An Withdrawl Plea On Above Cause No.
To The Honorable Judge of Saicl Court. Comes now, Bobby Drew Autry, Ex Parte, Pro Se, And Would Show This Honorable Court Good Cause And Reason To Grant Above Said Action.
I
Jurisdiction For The Plea Hearing In This Case originates From Criminal District Court No. 3.
Therefore, This Honorable Has Jurisdiction over The Subject Matter of This Instant Motion.
II
Movant Would Show That His Lawyer Was Not Provided For The Antiterroism Effective Death Penalty Act. This Is Cause To Overcome The AEDPA, Martinez V. Ryan, 132 S. Ct. 1309 (2012).
*3 There Is No Evidence To Support Any Type Of Ter ristic Type Of Act Or Acts By The Mowant.
The Record Is Bevoid OF Any Testimony or Vic" tim Statements, Witness Statements, Or Any Other Type Of Evidence To Support Terroristic Activity.
In Any Post Conviction Collateral Attack, The Bur den of Proof Is on The Defendant To Allege And Prove Sufficient Facts, Which If True, Would En" title Him To Relief. See; By Parte Maldonado, 688 S.w. 3d 114, 116 (Tex.Crim. App. 1988). A Defendant Must Plead And Prove Facts Which Entitle Him ToRelief And He Must Prove His Claim By A PreBondérance of the Evidence. See; Ex Parte Roins, 555 S.w. 2d 478 (Tex. Crim. App. 1976), Also, Ex Parte Adams, 768 S.w. 2d 281, 287-88 (Tex. Crim. App. 1989).
A Defendant Must Show, Or At Least Allege, The Detailed Facts Which Grive Rise To, And Compel Each Legal Conclusion That Entitles Him To Relief. See; Ex Parte Hogan, 556 S.w. 2d 352 (Tex. Crim. App. 1977).
*4
IV
Movant Assets That Court Records Fleurately Show The Allegations And Errors Set Forth In This Motion. RN#9013442250, And Court Record No: Vol 456, Page 125 and 126 Cover Cause No.s, FO3-25657-T, FO3-25713-U, And FO3-25 714-U. Now, WO3-25657-T(s), WO3-25713-U(s), and WO3-25714-U(s).
On April 13, 2004, Plea Hearing Was Held, And The Movant Was Persuaded To Plead Guilty And Waive Jury Trial. Court Appointed Counsel Was Every D. Unell.
Counsel merely Entered A Pro Forma Appearance, A Pro Forma Appearance Of Counsel Does Not Amount To "Assistance of Counsel" Or "Due Process of Law". Counsel Advised Defendant Fairly. See; Ev Parte Harris, 596 S.W. 2d 893 (Tes. Crim. App. 1980).
V
Involuntary Plea Due To The In effective Assistance of Counsel. Counsel Failed To Object: To successfully Assert That Trial Counsel's Failure To Object Amounted To Ineffective Assistance, A Defendant Must Show That The Trial Judge who told Have Committed Error In Overruling Such An Objectien. See;
*5
Ex Parte White, 160 S.w. 3d 46 (Tex. Crim. App. 2004). ExParte Zapata, 235 S.w. 3d 794(Tex. Crim. App. 2007). Vaughn v. State, 931 S.w. 2d 564 (Tex. Crim. App. 1996).
VI
Federal Due Process Is Violated When An Innocent Person Is Incarcerated, And The Court Has Held That This Applies Whether The Defendant Has Fled Guilty or Not Guilty. See; Ex Parte Tully, 109 S.w. 3d 388 (Tex. Crim. App. 2003). The Court Extended The Availability of Actual Innocence Claims To Guilty Plea Situations. This Opinion Expanded The Courts Actual Innocence Jur isprudence As Set Out In; Ex Parte Élizando, 947 S.w. 2d 202 (Tex. Crim. App. 1996). In Cases Involving A Recantation by A Complainant or A Witness, Counsel Should Request A Live Hearing Because Credibility Is Always A Key Issue. The Importance of A Trial Court's Firding On Credibility Is Apply Denonstrated by The Courts Brief Opinion Granting Relief In; Ex Parte Harmon Ill S.w. 3d 778(Tex. Crim. App. 2002). In Harmon, The Defendant Alleged That He Was Actually Innocent, As Demonstrated By The Complainants Affidavit In Which She stated That Her Trial Testimony Was False. In This Case, Recantations Demonstrate Actual Innocence.
*6
In An Interesting Case Regarding A Recantation By The Complianant's, The Court Granted Relief on Basis of An Involuntary Plea, In; Ex Parte Zapata, 935 S.W. 3d 794 (Tex. Crim. App. 8007). The Court Granted Relief In A Situation where The Defendant Was Not Aware, At The Time He Entered His Plea, That The Complianant's Had Recanted Their Acussations And Would Not Have Testified Against Him At Trial.
The Defendant Had Learned of The Recantations After The Entry of His Plea But Before Sentencing. [Some As In This Case- P03-25713-14]
Violations of Due Dores - In; Ex Parte Carmona, 185 S.W. 3d 493 (Tex. Crim. App. 9006). The Defendant Was Adjudicated Guilty of Sexual Assault Based Entirely Upon Perjuved Testimony.
He Filed A Retition For Habeas Relief, Claiming His Release To Deferred Adjudication Was Revoked without Due Process of Law. The Witnesses Against The Defendant Either ReCanted Their Testimony, Or Their Bias And Lies Had Been Exposed. [Some As In This Case- P03-25713-14]
VII
In Texas, A Criminal Defendant Is Entitled To Reasonably Effective Assistance of Counselsee;
*7 Ex Parte Duffy, 607 S.w. 2d 507 (Tex. Crim. App. 1980). In Determining Whether A Gefendant Has Re- ceived Ineffective Assistance of Counsel, Courts shall Use The Standard Set Forth In; Strickland v. Washington, 466 U.S. 668 (1984). The Court of Criminal Appeals Adopted The Str- ickland Standard In; Hernandez v. State, 726 S.W. 2d 53 (Tex. Crim. App. 1986). The Mowant Contends That He Wats Denied The Effective Assistance of Counsel Due To His Attorney Persuading Him To Waiwe His Right To Jury Trial, (And In This Case, To Plead Guilty) See; Ex Parte Dunham, 650 S.W. 2d 825 (Tex. Crim. App. 1983). A Court Cannot Accept A Guilty Plea From An Individual That Is Mentally Incompetent; Fait- ure To Investigate Competency Is Prejudicial If there Is A Reasonable Probability That The Defendant Exhibits "Severe Mental Problems", See; meLuckie v. Abbott, 337 F. 3d 1193, 1199 (107h Cir. 2003). Bouchillon v. Collins, 907 F.2d 589,592 (57h Cir. 1990). Also To Investigate Mental State And The Possibility of A Mental Defense- MGLuckie.
*8
Counsel Failed To Seek Competency Determination For Defendant Who Was Heavily Medicated And Where Three Experts Had Diagnosed Him As Suffering From Psychiatric Disorders. See; Burt V. Uchtman, 422 F. 3d 557 (7Th Cir. 2005). See Also: United States v. Howard, 381 F. 3d 873 (9Th Cir. 2004). In Howard The Court Remanded For Hearing To Re- Solve whether Counsel Was Ineffective For Allowing Defendant, Who Was Under The Influence Of Powerful Narcotics, To Read Guilty.
In This Instant Case movent was Under The In-fluence of Powerful Psychotropic Medications Arescribed By The Parkland Jail Health System.
Movent Has Been Diagnosed With Psychia tric Disorders Since Age II, (1973), And Has Been On And OF Psychotropic Medications For Many Many Years. See; Parkland Jail Health Records. (2003 To 2004. = Jan. 2003 Thru May 2004).
VIII
Counsel "made No Attempt Whatswever" to Communicate with Complaintant, Who Recanted, That W ouid Have Testified That Defendant And Not Commit The Crime. See; Towns v. Smith, 395 F. 3d 251, 259 (6th Cir. 2005). Counsel Must Ordinarily "Investigate
*9 Possible methods For Impaching Prosecution witnesses". See; Hoots v. Allsbrook, 785 F. 2d 1214, 1221 (4th Cir. 1986). Trial Counsel Failed To Conduct Any Investigation At All Into Mowants Psychiatric History And Therefore Neglected To Aursue A A Atentially Sucessful Defense. See; Seidel v. merkle, 146 F. 3d 750, 755 (9th Cir. 1998). Counsel made No Tactical Decision Not To Investigate [The Mowants] possible mental Impairment; He Simply Failed To Do so. See; Deutscher v. Whitley, 884 F. 2d 1152, 1159-60(9th Cir. 1989). Deficient Performance was Noted where. Attorney Failed To Object To Admission of Confession by Non-Testifying Defendant. See; Suggs v. United States, 513 F. 3d 675 (7th Cir. 2008). An Exception To The Preservation of Error Requirement Is A Constitutional Claim of Ineffective Assistance of Counsel Where Proper In vestigation or Objection Would Have Preserved The Error And There Is No Proper Reason Why Counsel Did Not Act. See; Er Parte Harrington, 310 S.W. 3d 452, 459 (ex. Crim. App. 2010).
*10
II
Counsel's Failure To Move For Withdrawl Of Plea, At The Time The State Stated They Had No Evidence, (Court Record No's. Vol. 456, Page 195 And 126, On April 13, 2004,) Erin Price Stated, "Wone Your Honor", "The witnesses Recanted And Maintain That They Wrote No Statements Against The Defendant. Should Constitute malicious
Prosecution. See; Evans v. Ball, 168 F. 3d 856 (5th Cir. 1999). See Also; United States v. Alvarez-Tautimez, 160 F. 3d 573 (9th Cir. 1998), Also Counsel's Ineffectiveness, = Alvarez.
Counsel's Failure To Challenge The Sufficiency of The Evidence In the Trial Court And On Appeal Was Ineffective Assistance Where State's Case Was Largely Circumstantial. See; Holsclaw v. Smith, 822 F. 2d 1041 (11th Cir. 1987).
In This Case, In One Hearing, with Three Cause Numbers Listed Above, There Was No Evidence Other Than A Judicial Confession Mowant Has No Knowledge of. The State Did Not Say "We Have A Judicial Confession", The State, By And Through Erin Price, Stated = Wone Your Honor.
*11 A Horney's Failure To Move For Suppression of Confession That Were Primary Evidence Against Defendant, stated claim of Ineffective Assistance. See; Smith v. Wainwright, 777 F. 2d 609 (11th Cir. 1985).
To Demonstrate That A Judgement Is Void, " The Record Must Leave No Question About The Existence of The Fundamental Defect." See; Nix v. Steste, 65 S. 60, 3d 664, 668 (Tes. Crim. App. 3001).
Which Stated As Follows: A Judgement of Conviction for A Crime Is Void When; (1) The Document Purporting To Be A Charging Instrument (i.e. Indictment, Information, or Complaint) does Not Satisfy The Constitutional Requisites of A Charging Instrument, Thus The Trial Court Has No Jurisdiction Over The Defendant, (2) The Trial Court Lacks Subject Matter Jurisdiction Over The Diverse Charged, (3) The Record Clearly Reflects There Is No Evidence To Support The Conviction; (4) An Indigent Defendant Is Required To Face Criminal Trial Proceedings Without Appointed
*12
Counsel when Such Has Not Been Wained, In Violation of Gideon v. Wainwright.
White we Hesitate To Call This An Exche. sive List, It Is Very Nearly So, Id, At 668
The Court of Criminal Appeals Has Held That If The Original Judgement Imposing Probation Was void Then The Trial Court Would Have No Authority To Revoke Probation Since, With No Judgement Imposing Probation, Because It Is a Nullity, There Is Nothing to Revoke. Nix v. Stade, 65 5.10. 3d 644 (2001).
II
Movant Asserts That The Record Clearly Reflects The State Stated On The Record, That They Had No Evidence.
Movant Further Asserts That Parkland Jail Health Records At Time of Mea will Reflect His Psychiatric Disorders And Use of Psychotropic Medications.
Movant moves This Honorable Court To Efont This Motion And Or To In vestigate The Allegations In de now Review To Clear The Record of Errors.
*13
Other Case Law Involved Ex Parte Calderon, S.w. 34, 3010 WL 1687797 (Tex. Crim. App. 3010). The State Did Violate Brady: Ex Parte Broyan, 305 S.w. 3d 533,545 (Tex. Crim. App. 3026), Ex Parte Emauplu, 384 S.w. 3d 866 (Tex. Crim. App. 3009), Prosecutorial misconduct - Where The Recanted Statements Were Exculpatory Evidence, Given After Alea And No objection: Brady v. Maryland, 373 U.S. 83 (1963) Ex Parte Adams, 768 S.w. 2d 281 (Tex. Crim. App. 1989).
III
States Judicial Confession Had No Notary Where There Was A Section For Such.
This Should Void The Judicial Confession; And That It Was Not Placed On The Record White Mowant Was Present In The Court Room.
And The Fact That It Was Filed 3-5-3003 And Not Signed Until 4-13-04 When Mowant Was Under The Influence of Psychotropic Medications. This Clearly Shows Prejudice And Bias.
*14
Prayer
Wherefore, Premises Considered, movant Prays The Honorable "Criminal District Court #3" Grant Above Motion In Part Or In Its Entireity. And Or At least Investigate stated Allegations In de novo Review of This Case.
And In so Finding Allegations True To Set A Hearing To Correct All Errors And Bring The Possibility of Inference Where It Truly Belongs, To The Forefront Of This Case.
Respectfully Submitted:
*15
W03-25713-U (A)
Ex Parte
Bobby Drew Hurry Mowant
In The 3rdCriminal
District Court Bullers County, Texes
Order On Motion To Withdrawal Plec
Having Considered The Mowant's motion To Withdrawl Plec, It Is of The Opinion of This Court That The Motion Should Be: ( ) Granted: With written Order To Mowant At The Address Below, ( ) Denied: With written Order To movent At The Address Below,
Hesiding Juclye
Bobby Hurry*1701196 Mr Connell Unit 300 I S. Emily Dr. Beeville, Tx. 78102 ccjfile, Jrackie creel.
*16
Inmates Declaration
I. Bobby Drew Autry, Am The Mowant In The Above Motion And Being Presently Incarcerated In T.D.C.J. At The M/Connell Unit In Beeville, Texas, Declare Under Penalty of Berjury That The Above Allegations In This Motion Are True And Correct To The Best of my Knowledge.
Certificate of Service
I. Bobby Drew Autry, Mowant, Hereby Cert- ify That A True AndCorrect Copy of The Above M- otion Was Served On: The District Clerk of The Criminal District Court #3, AT-133 N. Riverfront Blvd. Dallas, Texas 75307.
Bobby Drew Autry TBCST 1761196 M/Connell Unit 3001 S. Emily D's Beeville, TX, 78102