Case Information

*1

1036.5

RECEIVED IN COURT OF CRIMINAL APPEALS ALG 032315

ORIGINAL

IN THE COURT OF CRIMINAL APPEALS PETITION FOR DISCRETIONARY REVIEW

OF THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS NO. 0.5-15-00665-CR

SARY EUSENE SIMS, APPELLANT

$V$ . THE STATE OF TEXAS, APPELLEE ON APPEAL FROM THE ABand TUDICIAL DISTRICT COURT DALLAS COUNTY TEXAS TRIAL COURT CALISE NA F-0045450 FRED IN COURT OF CRIMINAL APPEALS

ALG 13235

Abel Acosta, Clerk

*2

TABLE OF CONTENTS

TABLE OF CONTENTS INDEX OF AUTHORITIES STATEMENT OF THE CASE ..... 1 NATURE OF THE CASE ..... 1 ARGUMENT ..... 2 ERRORS OF COURT OF APPEALS Error(I). The court of appeals was in abuse of Discretion by Disming appeal for want of Jurisdiction. ..... 34-5 Error (2). The court of appeals was in abuse of DIScretion, By ruling that Appeal was untimely. 6 TOTAL COURT ERRORS Error (1). Trial court abuse if Discretion in not Holding Evidentiary Hearings. ..... 7 Error (2). State Procedural Rule is void: ..... 8 Error (3). Denial of appointment of counsel: ..... 9 Error (1). The Fifth Amendment Right to be Heard. 10 Error(5). The Sixth Amendment to DISCVery: ..... 10 ^[4] REHEARING EN BANC, WAS DENIED ON, June 29,2015.

*3 CASES: INDEX OF AUTHORITIES : PAGE Thomas V. State 225: SW3d 513 (TeX.Crim.AP2007) -2 EXPANte:Villanueva, 353, SW3d 391 (TeX.Crim.AP2008) - - 3 EXPante:Harget B19 SW2dB6(TeX.Crim.AP.1991) - - 4 EXPante:Renier 1734 SW2d 349 (TeX.Crim.AP.1987) - 4 EXPante:Crosley, 548 SW2d 409 (TeX.Crim.AP2.1972) - 5 MAyes V. State 538 SW2d 637(TeX.Crim.AP2.1976) - 5 Townsend V. 5 afin, 372 U.S.293 (1963) - - 5 schlup (IIS S.Ct.851) Hail V. 9 u acterman, 534, F3d 365 (5th cfr. 2008 - 7 Kuhimann V. Wilson, 477, U.S.436 (1982) - 7 Blackman V. scort 22, F3d 560 (5th cfr.1994) - 7 Townsend V. 5ain, 372 U.S. 293 (1963) - 7 williams V. Taylor, 529 U.S. 362 (2000) - 8 Valdez V. Cockerel, 874 F3d 941 (5th cfr.2007) . 8 Townsend V. 5ain, 372 U.S.293 (1963) - 8 Patterson V. Illinois, 487, U.S.285(1998) - 9 Trevin o V. state 565 SW2d 938 (TeX.Crim.AP - 9 stikland V. warchington, 466 U.S.668 (1984 - 9 Richardsen V. wisht, 1405 U.S.208(1972) - 10 Godbera V. Kelly, 397 U.S 254 (1970) - 10 Davis V. Alasker 415 U.S.308(1974) - 10 W and V. Whitley, 21, F3d.1355,6 (5th cfr.1994) 10 STATUTES ANO CONSTITUTIONS TEX. CONST. art.VI section, B - - 4.5 Art. 44.02 - - - - 5 U.S. CONST. Amend. 6,14,5 - - - 7

*4

U.S. CONST. Amend. 6 - - - 9 U. S. CONST. Amend. 5 &; 6 - - 10

AMt. 1. sect. 10 - - - - 9

RULES

TEX. R. APP. P. 44.45 (qum) TEX.R. APP. P. 26.1. (a) - - - - 6

*5

TO THE HONORABL COURT OF CRIMINAL APPEALS OF TEXAS: Now comes The Defendant GARY EUGENE SIMS In This Petition for Discretionary Review of The Judgment of the Fifth court of Appeals Dallas county, Texas, which on June 292015 dismissed Appeal for want of Jurisdiction.

STATEMENT OF THE CASE A JUY convicted defendant of a 99 -avated sexual assault and assessed punishment at confinement for life.(AR7;102-103).

NATURE OF THE CASE The dendcint so objection under Texas Rule of Appellate Procedure (44.4);(9);(9); That state's Remediable Error of the trial court (9) Generally a court of appeals must not affirmed or reversed Judgment or dismiss an appeal "If"; (9) The trial court's erroneous action or refusal to act prevents the proper presentation of a case to the court of appeals; and (9) The trial court can correct its action or failure to act. (9) Court of appeals direction if error remediable, if the circumstances described in raiesist, the court of appeals must direct the trial court to correct the error.

*6 ARGUMENT The court of appeals will then proceed as if the erroneous action of failure to act had not occurred. See Thomas V. State 2253 W3d 515 (Tex. Crim. APP. 2007) "Under this Rule, if a trial court's error prevents the proper presentation of the case to the appellats court and that error can be remedied without requiring an entire new trial. Then the appellate court must direct the trial court to remedy the error so that the appellate court will be in a position to evaluate the appeal properly. We have applied this rule to a trial court's refusal to permit a defendant to make an offer of proof. A trial court's failure to conduct a proper button hearing, and a trial court's failure to make findings react that it was required by law to make Rule 44.4, by contrast, is designed to effect the creation of a new record when a trial court has erroneously withheld information necessary to evaluate a defendant's claim on appealce. 3. failure to file required findings of react) or has prevented the defendant from

*7 Submitting information necessary to evaluate his claim (e.g. Refusing to permit an upper of proof), the appellate court is Collected to step in and order the trial court to correct the situation. The key to Rule 44.4. is that there must be an error that the appellate court can so correct. And if the error in question is subject to the usual rules of procedural default, then it must have been presented by objection.

ERRORS OF COURT OF APPEALS (1). The court of appeals was in a abuse of discretion by dismiss the appeal for want of Jurisdiction. The court of appeals abuse its discretion in so dismiss said appeal for want of Jurisdiction. Defendant appeals was pursuant to Texas Rules of appellate procedure, Rule, 33.1(a)(1), And 44.4(a)(1(a). Jurisdiction see EXPAPle:Villanueva:352:5w3d:391 (Tex. crim.APP. 2008), Applicant sought writ of habeas Corpus. The, 398 th District court, Hidalso county sumarily denied the said application, as beins Privolous. Applicant appealed. The corpus christi Edimburs court of appeals, dismissed the

*8 appel based on lack of jurisdiction. The Discretionary review was granted. Holding: The court of criminal appeals, keasier, S. held that an order of a district court summanly denvind as frivolous, an application for writ of Habeas corpus seeking relief from an order or judgment of conviction orderits community supervision in a felony or misdemeanor is APPEalable. seeasawad 391, Id. 94; Article, I, section, 12, To the Teas constitution commands: "writ of Habeas corpus is a writ of right, and sheill never be suspended." If further directs the lessisature to"encret laws to render the remedy speedy and effectual" Article, V, section, 8 , to the Teas constitution" comfers"district court with"exclusive, appellate and original jurisdiction of all actions, procedins, and remedies: Also see Exporte Hargett 819 swad B66 (Tex. crim. App. 1991), In Hargett this Honorable court of criminal appeals stated in a case where a Judee refuses to issue the resuested writ of habeas corpus or denies altapplicant the resuested Hearins on the merits of his claim. Nevertheless appeal can be had from a district court ORDER denyins an applicant relief on the merits of his claim see Exporte, Renier, 734 swad 349at 353 (Tex. Crim. App. 1987); Exparte crosley, 548 swad

*9 409 (TEx. crim. App. 1971), mayes v. Stele, 538 SW. 3d 637 at 639 (TEx.crim. App.1976). Consequently, in the instant case, Jurisdiction was conferred upon the court of Appeals by Virtue of Tex.R. App. Proc. 44. Therefore, we conclude that the district court had Jurisdiction to hear this application according to TEX.CONST Art. 4.18, and althought it did not issue the writ of habeas corpus prayed For, it did undertake totule on the merits of the applicant's claim. We hold that the court of Appeals was authorized to hear this appeal under Article 4402 V.A.C.P. in accordance with Tex.R. App. Proc. 44. The cause is remanated to the court of Appeals for it to consider the merits of the applicant's claim. The Dedendant Appealed undet The proper Remedy Rule of Tex.R.App. Proc. 44.4 The court of appells abuse of discretion in it's bulins on an erroneous conclusion of the law in this case. And has decided an important question of law in a way that so conflicts with the Applicable decisions of the court of Criminal Appeals and the supreme court of the united States see Townsend v. seim. 372, U.S. 293,312-13,9LED.3d 770,835,Ct.745(1963).

*10 ERROR OF COURT OF APPEALS Q1. The court of APPEALS Abuse it Discretion By rulins that APPEAL was untimely.

APPIicant in a showins that Notice of APPEal was so timely, "Note the court of APPEALS opinion on Pa9Q1, States the court, Now has before it appellants, may, it, as us. Pro se Notice of appeal. The court, we first note that although appellant states the trial court denied his motion on April, 21, 2015, we have no record of a written order having been "centered," see, EXHIBIT Attach of copy of said ORDER, so signed the aliday of April, 2015. And April, 21, 2015, To May, 11, 2015, Is 201 days. Pursuant to Texas Rules of Applicate Procedure, Rule, 26.1. (a), The Notice of appeal must be filed within 30 days after the judgment is signed. "In this case, filed Notice of APPEAL we then 201 days of the signed judgment; making it so timely," "showing the court of APPEALS factual determination and said conclusion of untimely Notice of appeal in this case was clear Erroneous.

*11

TRIAL COURT ERRORS

Error(i). Trial court abuse its discretion in not APPOINS counseI and Hol diny Evidentiary Heaпin9. The Defendant in a showins of constitutional nists of APPOint counseI to represent him. In a full and Fair Evidentiary Hearins And Discovery. To so on"Controvert Unresolved Factual Issues" of Defendant As serted Actually Innocent.under SchluP, U.S.S.Et.BSI, (1995) citins Stendard of Kuhlmann V. Wilsen, 477, us 436, 106, S.Ct. 3616 (1986). The trial court so abuse it's discretion in denins Defendant of his Due Proces Rists under the Fifth, sixth and fourteenth Amendments to arull and Fair hearins' see, Hallv. Quarterman, 534 F3d 365 (5th cir. 2008). The supreme court Heled thet the court must also consider whether such a hearins could enable an applicant to prove the Petition's Factual Allegations, which, if Tive would Ennite defendant to relief. The defendant is so entitled to an evidentiary hearins on the issue, see Id: at:313.83.S.Ct.et 756; Diackmann's scott. 3 a F3d, 560,567 &; n. 38 (5th cir.1994); (Concludins that an Evidentiary hearins on factual issues underlyins a Habeas claims was required because the "State court made no Fact-Findings on the issues, see Townsend V. Sabi, 372, us. 293,312,13,91,Ed2d770,85,5. ct. 745 (1963).

*12 Error(a). STATE PROCEDURAL RULE IS VOID BECAUSE IT VIOLATED CLEARLY ESTABLISHED FEDEFAL LAW: A decision by a state court is contrary to the supreme court's clearly established law if it, "Applies a Rule] that contradicts the law set for in the supreme court's cases seewilliams V. Taylor, 529 U.S.362,402-03,130,5,Ct.1495,1517-18, 1461,Ed.2d,389 (200); Ioliat 529 U.S. at 405-06".

In a showins that procedural Rule is void see valdez y, cockrell, 274 F3d 941 (6th cicaop) cirins the standard of Towlisen v. saim. 3 Ta. U.S 295, 313-14,83,5,Ct. 745, 756-57,9,1,Ed.2d,770 (1963); under this standend, when due proof of one or more of The (1) (2) Tounsend criteria exists, Established due process violation under the fifth sixth and fourteeth Amendments. In this case defendant (C)in 9, (1) (2)(5), (2)(1) of Towlnsend criteria: (1), That the merits of the factual dispute were not resolved in the state court paper hearins. (2). That the fact-findin 9 procedure employed by the state court was not adequate to afford a full and fair hearln 9,(5). That the applicant was indigent and the state court in deprivation of his constitutional rights failed to appoint counsel to represent him in the state court proceedings. (2). That the applicant was otherwise denied due process of law in the state court proceedings.

*13 Error3).Denial of APPOINTment of counse/ duris A critical stage of habeas corpus proceding. The trial court so abuses its discretion, by not so Aproins counsel for full and Pain hearin 9 in violation of defendants constitutional rights of the sixth Amendment and Art. 1 section, 10 of the Texas constitution, see Borterson V. Illinois, 487 U.S. 285,290-91,108,3, Ct. 2389,101,1,Ed ad, 261 (1998), see Also Treving V. State, 565,5WQd 938-940 (Tev.cim. App(1978); Treving makes clear that a criminal Prosecution with the meaning of the sixth Amendment and Art. 1, sect. 10 of the Texas constitution, does not end with the defendant's conviction. In Treving the defendant was denied the right to counsel on his motion for new trial. The court Held the proper remedy was to return the case to that faint where the defendant was denied counsel, see also Srickland V. Washington, 466 4668,104,3,Ct. 2082, 81,Ed.ad 674 (1984). The supreme court wrote that "atrial court is unfaif if the accused is denied counsel at a critical stage" and that the court was uniformly found constitutional error without any showing of prejudice, when counsel was either totally absent or prevented from assistiity the accused during a critical stage of the Proceeding"I d. 466 U.S. 648,659,6,25,0.

*14 Error (4). The Fifth Amendment Rishit to be Heard: The fundanental Rebuirement of Due process is the opportunity to be heard at a meaminoful time and in a meainoful manner. The state court decision Denying defenchant on Evidentiary Heorins on Fact issue of beins detucally mhocent was contrary to clearly-establishec Federal law, see RiehardsonV. wight. 4 es U.S.208,219,92.SC1788, 31.1 Edad. 151 (1972) Ching Goldber g Vkelly 387 us. 254,90.S.Ct.101,25.1.Ed.2d 287(1970), Stateins, The to eress examination rests latyely on creedibility and Veracity"ie where facts are at issue. Error(5). The sixth Amendment Risht confrontetion: The rishl to crassexomine a testifying state witness extends to any matter theit could reflect on the witness s's credibitity see, Davís $V$ . Maske, $415,4,5,308,315,94,5,ct,1105,110,39,1,Ed$ ed 34 X(974) Error(6). Entitlement To Diserery: seeking to Diserer Exculpatoryphotograph of The Allesse Vic tim, Drinking champagne out of the Bottle in white Lingerie. At the deffendent Home. Evidence of the Tokins of the Anoto; seerRK-5-615. you've Indicated, Defendant was takins photo of you with a camera? yes. See RR-5-25. I turned the Bottle up. There was a Florsh, He was tokins a Picture of me. Seeward V. WhitleyialE3d 1355,67 (5th cix.1994) Al so Bachks V. Dretke 124,9, Ct.1256 (2004).

*15 CERTIFTCATE OF SERVICE I here by certif that a true and complete copy of the fore going Pettition for Discretionary review of the cour of appeals dismissed for want of Jurisdiction, Defendant Respoxt to resolve merits by Evidentiary Hearings and Discovery was viea regular mail served on the clerk of the court of criminal appeals of tevers at P.O. Box 12308, Capitol Station, Austin, Texas 78711. BY Applicant in this case, GARY EUGENE SIMS, sizined on this the 24 day of July, 2015, 1029968

UNSWORN DECLARATION Under Penalty of Penjury Applicant declares that all facts presented in Petition for Discretionary review are true and correct. Signed the 24 day of July, 2015, By Gary Eugene Sims, 1029968 Respectfully submitted, By GARY EUGENE SIMS, AL. Connally Unit 8899, FM 632, Kened Texas 78119.

*16

Cause Number: W00-45450-S(D)

EX PARTE

GARY EUGENE SIMS, Applicant

$\S$
IN THE 282 ${}^{\text{ND}}$ JUDICIAL

$\S$
DISTRICT COURT

DALLAS COUNTY, TEXAS

ORDER

Applicant, Gary Eugene Sims, has filed a pro se objection to the trial court's ruling recommending denial of Applicant's application for writ of habeas corpus without holding an evidentiary hearing. Applicant contends he is entitled to an evidentiary hearing and discovery.

The Court finds that Applicant's writ application was dismissed by the Court of Criminal Appeals January 18, 2012 and is no longer pending.

IT IS THEREFORE ORDERED that Applicant's request for an evidentiary hearing and discovery is DENIED.

The Clerk of this Court is directed to forward a copy of this order to the Applicant, Gary Eugene Sims, TDCJ #1029968, Connally Unit, 899 FM 632, Kenedy, TX 78119 .

SIGNED this $$ day of April, 2015.

*17 F-0045450-PS To: Eldar Olivas, 282nd. District court coorEHbEDr RE: Caus No F-0045450-PS: MOTION FONSAMETHEMATIGGY

• HEARING: DISCHINGERKE

GARY EUGENE SIMS VS. THE STATE OF TEXAS 554 TEXAS

REOUEST FOR SETTING Dear court coordinator, I've erled a motion for an Evidentiary Hearin' in cause of F-0045450-PS. Please contact Jude, Andy chathom end so schedule this motion for Hearins as soon as Possible, I'm Proceeding Pro se, Ill need to sive testimony concerning controverted, previously unresolved facts of asserted Actually Innocent, And call witnesses. I am reauesting to be brought before the court so I can have the opportunity to fully develope and resolve the matter, raised by this motion. Please confer with Audse, chatham, Andy and make the necessary arrangements. Thank you for your attention to this matter. With the utmost respect. GARY EUGENESImS "IOIO29968 J.8. Connally Unit, 899, F.M. 632. Kenedy Tex. 78119

*18 EXHIBIT*1

CAUSENO. WDO-45450-S(D)

EX PARTE Maryline APPLICANT

• IN THE 282 ㅆ DISTRICT COURT
• DALLAS COUNTY, TEXAS

ORDER DESIGNATING ISSUES

Having considered the applicant's Application for Writ of Habeas Corpus and the State's Response, the Court finds that controverted, previously unresolved facts material to the legality of the Applicant's confinement exist. The Court finds that each of the allegations set forth in the application are controverted, unresolved factual issues which require additional evidence and/or testimony to be resolved.

The court appoints April E. Smith to resolve the issues and prepare findings of fact and conclusions of law for the Court. The issues may be resolved by affidavits, depositions, interrogatories, or by hearings, as deemed necessary by the person appointed herein.

Above appointed attorney does not represent the Applicant. Applicant is not entitled to counsel at this time.

The Clerk of the Court is ORDERED to send a copy of this order to Applicant, or Applicant's counsel (if so represented) and to counsel for the State.

Signed this 28 day of September 2011.

*19

WO. F-0045450-PS

GARY EUGENE SIMS. IN THE 282nd, TUDICIAFMEETFIC T VS. THE STATE OF TEXAS. COURT OF DALLAS COUNIYY TEXAS DEFEMDANT'S OBJECTIDN UNDER TEXAS RULE OF APPELLATE PROCEDURE. 44.4 OF TRIAL COURTS DEVYING APPLICATIOVS FOR WRITS OF HABEAS CORFUS WITHOLT HOLDING EVIDENTIARY HEARING ON CONTROVEHT UNRESOLVED FACTUAL ISSUES ASSEATED ACTUALLY INNOCENT AND MADE NO FACT-FINDING ON GENUINE FACTUAL ISSUES OF ACTUAL INNOGENCE AND CONCLUSIONS OF LAW BY THE COURT ON THE FACT AT ISSUE. MOTION FOR EVIDENTIARY HEARING ONCONTROVERT UNRESOLVED FACTUAL ISSUES OF ASSERTED ACTUALLY INNOGENT. PURSUANT TO ART.II. 61.4 RT.II.07(2)QQQAND. ART. 1.051

*20 No. F-0045450-FS GARY EUGENE SIMS: IN THE 282nd. JUDICIAL DISTRICT V3.

THE STATE OF TEXAS: COURT OF DALLAS COUNTY, TEXAS OBJECTIGN TO ADVERSE RULING UNDER TEX. R. APP. P. 44, 4, OF TRIAL COURT'S DENYING WRIT OF HABEAS CORPUS WITHOUT HOLDING EVIDENTIARY HEARING

To The HOWORABLE SUDGE OF SAID COURT: CONES HOW EX PORTE GARY EUGENE SIMS, defendant in the above styled and numbered cause makeins this said objection, seeking evidentiary hearing, will show unto the court the followins: "On September 28, 2011, In the Habecis action, The trial court so ORDER DESIGNATING ISSUES" OF APPirmative Evidence of defendant asserted a claim that he is actually innocent, under 3churg, 5, 2, 45, 106, 2, 2, 2616 (1986). "The trial court state's" Having considered the Applicants Application for writ of Habecis corpus and the state response, The court finds that controverted, previously unresolved Fact's material to the legality of the Applicant's confinement exist. Now under TEX. R. APP. P. 44, 4 (2010), And Art. II. 05.8 Act. II. 61.

POINT OF ERRORS One: Trial court Errors, by failure to file required findings on the issues. Two: Trial court Erred by not holding evidentiary hearing in determinations of credibility and veracity facts. Three: Discovery of Exculpatory Photograph of the alleged Victim of defendant home. Four: Denied Due process rights under Fifth, Sixth and Fourteenth Amendments. Five: Visited clearly Established Federal law, Supreme Court, six: Discovery of Exculpatory Picture. 2-06-8

*21 The trial court visited Art.11.07.sec.3, 1) (f) (f) Art.26.5) And court appoint's April E. Smith to resolve fact.s issues. The factfindin 3 procedure employed by the state court was not adequate to afford a full and fair hearins. And also in deprivation of defendant constitutional n'stt failed to a ppoint counsel to represent him in the state court proceedings. Due process requires a hearins. The denial of a full and fair hearins denied defendant of his due process N'sthts under the Fifth, sixth and fourteenth Amendments to a full and fair hearins in a court of law on the issue of actually innocent pursuant to Tex. code crim. Proc. Ann. Ch.II, contemplates on evidentiary hearins with live testimony that is most likely subject to the rules of evidence. Tex. code crim. Proc. Ann. Art.11.48 (2005). States that proof shall be heard accordingly, both for and against the applicant for relief. Tex. code crim. Proc. Ann. Art. 11.44, directs a court to proceed according to the facts and circumstances amer ithas heard the testimony offered on both sides. (f) (f) ex parte Franklin V State, Tex.APp. 9th, Dist. Beaumont 310 Sw3d 918, LEXIS:3350: 2010, see, Hall V, Quarterman, 534, F. 3d 365 (5th, ctr 2008): The supreme court held that the court must also "consider whether such a hearin 9 could enable an applicant to prove the petition's factual allestations, which, if true, would enftle the applicant to reifef. The applicant is entitled to an evidentiary hearins on the issue, see id,at 313,83,5,Ct. at. 736 . Blackman V, scett. 22 F3d 560,567 (6 n. 28 (5th Cn.1774) (concludin 9 that an evidentiary hearins on factual issues underlying a habeas claims was required because the state court made no "fact-findin 95 on the issues", see Townsend V, sain 372 (4.5.293,312-13.94,Ed,2d 770,835,Ch745(1963).

*22 In a Showing that trial court abuses is discretion in not holding an evidentiary hearins, violated, Tex, code crim. Proc. Ann. Ar.t. II, bl, Ar.t. 11.07, sec. 63 (d), 8, Ar.t. 1.05 (and trial court decision was contrary to clearly Established Federal law as determined by the supreme Court, see Valdez V, cockrell 274 F3d 941 (5th cir. 2001), citing the (1) TO (7) Standard of Townsend V, saín, 372 U.S. 293, 312-14, 83, 3, Ct. 745, 756-57, 9 L, Ed. 2d 770 (1963), Id. 274 Fd 963 (1) That the merits of the factual dispute were not resolved in the state court hearins. (2) (3) (4) (5) (6) The factfinding procedure employed by the state court was not adequate to afford a full and fair hearins. (5), That the applicant was an indigent and the state court in deprivation of his constitutional rights failed to appoint counsel to represent him in the state court procedure. (7), That the applicant was otherwise denied due process of law in the state court procedins. In Federal court, when due proof of such factual determination has been made, unless the said existence of one or more of the circumstances respectively set forth in paragraphs (1) to (7), or Inclusive is shown by the applicant, under Townsend, 372 U.S. 293, 83 S.ct. 745 (1963)

*23 The fundamental requirement of due process is the opportunity to be heard at a meaninsful time and in a meaninsful manner. The state court decision denyins defendant an evidentiary hearins on fact issue of beins actually innocent was contrary to clearly-established law.ederal law. The state court's decision to deny defendant the risht to confrontation and cross examination in deteminins whether he was actually innocent under schlup.lls, s,et. 831. (1995), CMin9 Kuhlmann V. wilsom, 477:U.S.436:106 S.Ct.2616 (1986), was contrary to clearly-established federall" lawand lookins to federal law of due process and the Risht of cross examination and confrontation as announced by the supreme court. I am perucided that the relevant law is clear, and dictates the conclusion that the state court's decisional process was so to this clearly-established law. The life sentence of a defendant, detemined without evidentiary hearins cross examination to resolve disputed material facts, here violates the core principles of due process and sims's risht of confrontation as announced by the supreme court. The facts disputed to resolve in this case are credibility and veracity of the states only witness the alleged victim. The supreme court state's there is nothing new here this court has consistently held that evidentiary hearins are essential for determinations of credibility, see Richardsom V. wilsht, 405 U.S.208:219:92, S.Ct.788:311,Ed 2d 131 (1972) (Bremon: 3: dissenting) (C/Ing Goldbers v Kelly: 397 U.S.254:90, S.Ct.101:251,Ed2d287(1970) (The risht to cross examination rests largely on "credibility and veracity", i.e. where"fects are at issue").

$$5-0f-8$$

*24 "Linresolved Facts of Innecencel" (Affecting winness's Credibility" Defendant or gues that an Evidentiary Hearins as a Sixth Amendment Rishit to the United States Constitution Gucrantes the risht of an aceused in a criminal prosecutiont to confront the witnesses asainst him, U.S. CONST. amend.VI; DAVIS V. ALASKA:4IS U.S.308:315, 94.S.Ct.IIOS.1110.39.L.Ed 2d. 347(1974), see also RANKIN V. State:4I SW3d 335.344(Tex.APR-Fort Worth, 2001 Pet. refd). The risht of confrontation "encompasses more than the opportunity to physically confront the witnesses, Davis, HIS.Us. at 35.94 S.Ct. at 110. A primary interest secured by the confrontation clause is the risht of cross-examination Id.94.S.Ct. at 110 . Cross-examination is the principal means by which the believability of a witness and the truth of her testimony are tested, Id. cat 316.94.S.Ct.qu110. The cross-examiner not only is permitted to delve into the witness's story to test the witness's perceptions and memory, but also is traditionally allowed to impeach, i.e. discredit the witness, Id. Hence, the risht to crass- examine a testifins state witness extends to any matter that could reflect on the witness's credibility, Vits V. State, 739 SW 2d 25.285 (Tex.Crim.APR. (987). This includes impeaching the witness with relevant evidence that misht reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that misht go to any impairment or disability affecting the witness's credibility, Id at 29. Rankin 41.5W3d at 345; Alexander V. State, 949 SW2d 772, 774-75(Tex.APR. Dailas:1997, Pet. refd). "The trial Judge should allow the accused great latitude to show any relevant fact that misht tend to affect the witness's credibility, Vits, 739, SW2d at 29; Koehler V. State 679 SW2d 619(Tex. Crim. APR. 1984).

*25

See Thomas V. State 225, Swed 513 (Tex.Crim.APR 2007); under Tex.R.APR P. 44.4 (a)(1), By contrast Ps desioned to effect the creation of a new record, when a trial court has-erone ously withheld information necessary to evaluate a defendants claim on appeal (e.g. failure to file resuired findings of fact) or has prevented the defendant from submitting information necessary to evaluate his claim (e.g.refusing to permit an offer of proof of being actually Innocent.

ENTITLEMENT TO DISCVERY

"See, Goodwin V. Johnson, 132 F3d 162 (5th.Cir.1998), Id.1781 "When there is a factual Dispute[thas] if resolved in the defendants favor, would entitle[him] to Relief, He is entitled to Discovery and Evidentiary Hearing, See Perillo V. Johnson, 79 F3d 441, 445 th.cir. 1994) (Rusting, Wared V. Whitley 21 F3d 1355,67 (5th.cir. 1994) (alterations in original). seekin 9 to Discover Exculpatory evidence Photograph of Amendla mitchell The Allesse Victim. Drinking change one out of the bottle in white Lingerie At the Defendent Home. Evidence of the Taking of the Photo: see RR-5-61; You've Preficated, Defendant was taking photo of you with a camera? yes.seeRr-5-25 "I turned the Bottle up, There was a Flesh, He was taking a Picture of me." Picture showing no physical violence, Imperaching the Alleged Victim Testimony from RR-5-22-26: To Be False Testimony that win she FIRST got to defendant Home she was beat down."see Bearks V. Dretke 124 S.ct. 1256 (2004).

*26 CERTIFICATF OF SERVICE I here by certif that a true and complete COPY of the fore soins, motion for Evidentiont Heorins was via regular mail served upon the District clerk of Dallars county at 133 North Riverfront, L8-12, Dalle's Texas, 75207-4313 By GARRY EUGENE SIMS, Defendert in this Cause. 91029968

LNSWORN DECLARATION PURSUANT TO us.C.1746 Defendent under the Perwity of Persury Declares that all Facts Presented in Document are true and correct. Sained this day by GARY EUGENE SIMS, on this the $\frac{8}{8}$ day of April, 2015

At J.B. Connally unit 899 F.M. 632 . Kenedy, Tex. 78119

8 -of-8

*27 CASE NO. 05-15-00665-CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS GAKY EUGENE SIMS. APPellant $V$ . THE STATE OF TEXAS. APPEIlee ON APPEAL FROM THE 282nd JUDICIAL DISTRICT DALLAS COUNTY, TEXAS, TRIAL COURT NOROO-454505

PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE RULE. 64, mottow FOR REHEARING EN BANC APPELLANT REQUEST AN EN BANC REHEARING EXHIBIT ATTACH (1). COPY of order that the court did not entered. (a). Request for setting. (3). Objection, under Texas Rule of APP. Proc. 44.4. (4). COPY of motion for Evidentiary Hearins and Discovery. (5). This court have my case History wrong see Exhibit of case History. (6). Affidavit concerning case History.

*28 TO THE HOWORABLE JUDGE OF SAID COURT: Now comes EXPARTE, GARY EUSENESImS. APPEllant In the above stYled and numbered case makeInS this said motion for En Banc Reconsideration of Rishs to APPEal said order. This Honorable court, state's we first note that although appellant states the trial court denied his motion on April, 21,2015, we have no record of a written order having been entered. "See EXHIBIT OF ORDER AITACH TO MOTION" (The Trial court is Playing Dirty Roof, That is so prejudice the Substantial Risht of the APPEllant by violated a duty ImPESEd by law by not so Entering the ORDER on record.

JURISDICIOV OVER POST-COMVICTIOV WRITS OF HABEAS COMPUS See, EXParte, VIlenueVa, 252, SW3d, 39 (TEX.Crim.APADOOB) Backsfound: APPIicant sou 3ht writ of habeas corpus. The, 398 th District court, Hidalso county, Aldo salinas Flores, J. Summarily denied the said application, as beIns Privolous. APPIicant appealed. The corpus christf-EdImburs court of APPEeals, 2006 wL 2382767, dismissed the appeal, based on lack of Jurisdiction. Discretionary review was granted.

*29 Holdins: The court of criminal Appeals, Keasler. "J. held that an order of a district court summarily denvind, as frivolous, an application for writ of Habeas corpus seeking relief from an order or sudement of conviction orderins community supervision in a felony or misdemeanor ease is appeolable." see 252 swad 291, ID. 94; Article 1 section 12. To the Texas constitution commands: "The writ of Habeas corpus is a writ of right, and shall never be suspended." It further directs the Legislature to "encict laws to render the remedy speedy and effectual" Article, V, section. 8, to the Texas constitution comers district courts with"exclusive, appellate and orisinal Jurisdiction of all actions, proceedings, and remedies. Also see EXPante Hanzett 819, SWad B66 (Tex.Crim.AP.1991) Appeal can be had from district court order denving applicant for Habeas corpus relief on merits of his claim. Vernon's Ann. Texas const. Art. 5, 18 ; Vernon's Ann. Texas C.C.A. art.44.02, and Texas Rules of App. Proc. Rule 44.

*30 CERTIFICATF OF SERVICE I here by certif that a true and. complete COPY of the fore soins motion for Rehearins was via regular meii served upon the district clerk of The Fifth court of A PPEeals at 600 . Commerce st. Ooilas Texas.75202. By GARY EUGENE SIMS, APPElliant in this case.

WPAQMMAY202,

UNSWORN DECLARATION PURSUANT TO U.S.E. 1746

APPElliant under the Renalty of Perjury Declares that all facts presented in document are true and correct. SIsned this day by GARY EUGENE SIMS on this the 15 day of June 2015.

GARY EUGENE SIMS TO:C.J.1.0.41029968 Connelly unit Kenedy Tex. 78119

4-0f-4

*31 Couse Number: WOO-45450-S(D) EX PARTE GARY EUGENE SIMS, IN THE 383nd JUOICIAL VS. DISTRICT COURT THE STATE OF TEXAS DALLAS COUNTY, TEXAS

OBJECTION TO ORDER DENIED MOTION FOR AN EVIDENTIARY HEARING ANO DISCOVERY ON THE CONTROVERT UNRESOLVED FACTUAL ISSUES OF APPLICANT AS SERTED A CLAIMACTUALLY INVOCEWT, PURSUANT TO ART. II. 61:11.07.(3)(d)(1.051:11.49 &;.11.44.

To The HONORABLE JUDGE OF SAID COURT: COMES NOU EX PARTE GARY EUGENE SIMS, APPIIC ONt IN the above sIvled and numbered course marketing this said objection to the trial court's denied said Evidentiary Heorins and Discovery, will show unto the court the following: "On September, 29:301, In HobE as action, The trial court so ORDER DESIGNATING ISSUES OF Facts of Affirmative Evidence of Defendant asserted a claim that He is Actually Innocent, Under seHlup, is, s.ct. 851 (1995), citing standard of Kuhlmann (Wilsom 477 U.S. 436,106, S.Ct. 3616 (1986)". The trial court finds that controverted, previously unresolved fact's material to the legality of the Applieant confin- ement exist, see Exhibit-1.

*32 Under the proper Remedy Rule, of Tex. N.APPA444 (a)(b)(a). Provides,(1), The trial court's erroneous action failure to act. Prevents the proper presentation of the cause to the court of appeals. See Thomas V. state 225 SWed 512 (Tex. crim.APPA007). stated we have applied thes rule to a trial court's refusal to permit a defendant to make an offer of proof. In this case it is proof of Actuelly Innocent". And under this rule. "A trial court's failure to make findings of fact that it was so required by law to make see, goodwin V. Johnson 132 Fad 162 183. (5th. cir 1998), citing Town send V. soun 372 uS. 293.312-13.91.Ed. ad 770.83 . 5.6 th 145 (1963). As such, when the state court did not resolve a fact issue that would entitle the retitioner to relief if resolve in his favor, the retitioner is entitled to an evidentiary hearing on the issue. See, Id. at 313.83 .5 .6 th at 756.5 Blackman V. scott 22 F. 3d 560.567 &; n. 28 (5th. cir 1994) (concludin 9 that an evidentiary hearing on factuel issues underlying a habeas retitioner claims was required because the state court made no fact-findings on the issues). By this the trial court violated clearly established Federal law. "A decision by a state court is contrary to the supreme court's clearly established Law if it." Applies a Rule that contradicts the Law set for in the supreme court's cases, see williams V. Taylor, 529 u. 5.362,40203.120.S.Ct.1495.1517-151461.Ed. ad 589 (2000) Id. 529 U.S. at $405-06$ !

*33 Aptficant in a showins of trial court's refusal to permit him to make an offer of proof in his factuql is sures of Actuaily innocent under schlup. Us, S.Ct. 851,6995 (cinnis standard of Kuhlmann V. Wilson, 477, Us. 436, 106, S.Ct. 2616 (1986) was in Violation, Schlup, Kuhlmanns And Violation of Aptficant Fifth, 5 ith and Fourteenth Amendments to a full and fain hearines in a court of law on issue of Actuaily Innocent, see Hally, quarteran 534 F3d 365,386 (5th Cricdary) And Halli's o similar case with previously unresolved fectissues. That fide fundame ntil requirement of due Process is the opportunity to be heard in a mearningful manner. The court held that Due process requires a hearins. IN A SHOWING OF THAT STATE COURT violated clearly Established Federal law: (1) In Violation of Townsend, scain 372, U.S. 293, 312-13, 91, Ed. 3d 770, 83, S.Ct. 145 (1963), Bynot siveins Aptificant a full and hair heariner, And fincin as of Fact on the issues. (a) In Violation of Davis Kalaska, 415 U.S. 308,315, 94, S.Ct. 1005,110,39,1, Ed. 2d 347 (1974), The right of confrontation encompasses more. under Davis the sixth Amen. right of crossexamination, dis ability affecting witness credibility. (3) In Violation of Richardsom, 419, 405, 405 U.S. 208,319, 92, S.Ct. 788, 31, L, Ed. 2d 151, (1972) Cinnis sidelberg V. Kelly, 397 U.S. 254,90, S.Ct. 101, 25, 1, Ed. 2d 287 (1970) The right to cross examination rests largely on credibility and revocity", e, where"Facts are at, issue,"one's Fifth Amen. Right to be heard.

$$3-0f-5$$

*34 (4). In Violation of, Stickland V. Washington, 466 U.S.668,104.S.C.2052,801.E12d 674 (1984). Appellant refers to the statement in, Stickland That "factual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.466 U.S.668, 692; Also cites united States V. Cronic, where the supreme court wrote that "a trial court is unfaif if the accused is denied counsel at a critical stage" and that "the court has uniformly found constitutional error without any, showing of prejudice, when counsel was either totally absent or prevented from assisting the accused during a critical stage of the proceedings." 466 U.S.648,659d.n.25. (5). In Violation of Patterson V. Illinois, 487 U.S. 285,290-91,108, S.C.2389,1011.E12d 261 (1998). see Also Trevino V. state, 565 Sw2d 938,940 (RA. Crim. App. 1978) Trevino makes clear that a criminal prosecution within the meaning of the sixth Amendment and Art. 1. Section 101 of the texts constitution, does not end with the defendant's conviction In Trevino the defendant was denied the right to counsel on his motion for new trial. The cour Held the proper Remedy was to Return the case to that Point where the defendant was denied counsel".

*35 CERTIFTCATE OF SERVICE I here by certif that a true and complete copy of the fore soing objection to order denied motion for an Evidentiary Heating was via regular mail served on the District clerk of Dallas Texas, 75207-432. By Applicant in this case, GARE EUGENE SIMS, SIsmed on this b day of may 2015.

UNSVORN DECLARATION Under Penalty of Perfury Applicant declares that all facts presented in objection are true and correct. Sisned the b day of may 2015. By GARE EUGENE SIMS, 78119.

TDC 2,41029968 Respectfully submitted, By GARY EUGENE SIMS J.B. Connally unit 89916 m. 632 , kenedy Texas 78119.

*36

Dismissed and Opinion Nunc Pro Tunc Filed June 29, 2015.

In The Court of Appeals Fifth District of Texas at Ballas

No. 05-15-00665-CR GARY EUGENE SIMS, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-0045450-S

MEMORANDUM OPINION NUNC PRO TUNC

Before Justices Fillmore, Myers, and Evans Opinion by Justice Evans Gary Eugene Sims was convicted of aggravated sexual assault and sentenced to life imprisonment. His conviction was affirmed on direct appeal. Sims v. State, No. 08-01-00121CR, 2002 WL 1482389 (Tex. App.—El Paso July 11, 2002, pet. ref'd) (not designated for publication). ^[1] This Court dismissed for want of jurisdiction appellant's pro se appeal from the trial court's orders denying certain post-conviction motions both because his notice of appeal was untimely as to the orders and because the orders were not appealable. Sims v. State, No. 05-14-01438-CR, 2014 WL 6453607 (Tex. App.—Dallas Nov. 18, 2014, no pet.) (not designated for publication).

*37 The Court now has before it appellant's May 11, 2015 pro se notice of appeal asserting the appeal is from the trial court's order denying him an evidentiary hearing. His notice of appeal is titled "Notice of Appeal of Motion for an Evidentiary Hearing and Discovery." We conclude we lack jurisdiction over the appeal. "Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. "The standard to determine whether an appellate court has jurisdiction to hear and determine a case 'is not whether the appeal is precluded by law, but whether the appeal is authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX. CODE Crim. P. Ann. art. 44.02 (West 2006) (right of appeal for defendant). Appellate courts may consider appeals by criminal defendants only after the conviction or the entry of an appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).

We first note that although appellant states the trial court denied his motion on April 21, 2015, we have no record of a written order having been entered. Moreover, the documents before the Court reflect that the hearing appellant seeks is related to a collateral attack on his final felony conviction, which must be brought by post-conviction writ of habeas corpus. See Tex. Code Crim. P. Ann. art. 11.07, §§ 1, 5 (West Supp. 2014). This Court does not have jurisdiction over post-conviction writs of habeas corpus from final felony convictions, nor does it have jurisdiction over an appeal of individual orders entered in regards to such proceedings. See Tex. Code Crim. P. Ann. arts. 11.05, 11.07, § 5 (West 2005 & Supp. 2014); Ex parte Alexander,

*38

685 S.W.2d 57, 60 (Tex. Crim. App. 1985). Because appellant is not appealing a matter over which we have jurisdiction, we have no authority to take any action except to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo, 918 S.W.2d at 523 .

We dismiss the appeal for want of jurisdiction.

/ David Evans/
DAVID EVANS
JUSTICE

Do Not Publish Tex. R. App. P. 47 150665 F. U05

*39

NOTES

${}^1$ The appeal was transferred from this Court to the Eighth District Court of Appeals at El Paso pursuant to a Texas Supreme Court docket equalization order.