Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 11/25/2015 9:40:38 AM VIVIAN LONG CLERK *1 ACCEPTED 07-15-380 SEVENTH COURT OF APPEALS AMARILLO, TEXAS 11/25/2015 9:40:38 AM Vivian Long, Clerk NO. 07-15-00380-CR In The
Seventh Court of Appeals Amarillo, Texas
In Re Rene Pesina On Appeal from Cause 2420-A 72nd District Court, Crosby County, Texas Honorable Ruben Reyes, Judge Presiding APPELLANT’S BRIEF B ENJAMIN P. G ARCIA State Bar No. 24073120 W ARE S HAY & G ARCIA , PLLC 1915 Broadway Lubbock, Texas 79401 (806) 763-5044 – Phone (806) 765-7536 – Fax benpgarcia@aol.com Counsel for Appellant, Rene Pesina Oral Argument Requested *2 IDENTITIES OF PARTIES AND COUNSEL Appellant
Rene Pesina
Counsel for Appellant
Benjamin P. Garcia
Ware Shay & Garcia, PLLC
1915 Broadway
Lubbock, TX 79401
Appellee
The State of Texas
Counsel for Appellee
Michael Sales
Crosby County Attorney
201 W. Aspen St., # 106
Crosbyton, TX 79322
i *3 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ............................................ i
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ................................................................... iv
STATEMENT OF THE CASE ................................................................ v
STATEMENT REGARDING ORAL ARGUMENT .............................. vii
ISSUES PRESENTED .........................................................................viii
STATEMENT OF FACTS ...................................................................... ix
SUMMARY OF ARGUMENT ............................................................... xii
STANDARD OF REVIEW ...................................................................xiii
ARGUMENT ........................................................................................... 1
I. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s Herrera -claim of actual innocence because Appellant asserted a claim that, if true, would establish affirmative evidence of his innocence ................. 1 II. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s other claims of entitlement to habeas relief because Appellant should be ii
permitted to develop all asserted grounds for habeas relief in an evidentiary hearing where he is entitled to develop his Herrera - claim of actual innocence in an evidentiary hearing .................... 6 III. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s Herrera - claim of actual innocence to allow Appellant to subpoena the “reluctant” recanting victim to explore the recantation .......... 8 PRAYER ................................................................................................. 12
CERTIFICATE OF COMPLIANCE ...................................................... 13
CERTIFICATE OF SERVICE ............................................................... 14
iii *5 INDEX OF AUTHORITIES Page Constitutional Provisions
U.S. Const., Fourteenth Amendment ............................................... 9, 12
Texas Const., Art. 1, Sect. 19 .................................................................. 3
Statutes
Tex. Code Crim. P., Art. 11.072 ....................................... xiii, xv, 1, 8, 12
Cases
Ex Parte Brown , 205 S.W.3d 538 (Tex. Crim. App. 2006) ............... 2, 5-6
Ex Parte Franklin , 72 S.W.3d 671 (Tex. Crim. App. 2002) ................. 5-6
Ex Parte Franklin , 310 S.W.3d 918
(Tex. App.—Beaumont 2010) .................................................. xiii, xv, 1-5
Matthews v. Eldridge , 424 U.S. 319 (1976) ...................................... 9, 11
iv *6 STATEMENT OF THE CASE On February 5, 1996, the Honorable Blair Cherry, District Judge of the 72nd District Court, Crosby County, in cause number 2420,
placed Appellant on deferred adjudication probation for indecency
with a child. (C.R. at 24.) On July 20, 2015, Appellant filed a verified
petition for writ of habeas corpus, under article 11.072 of the T EXAS
C ODE OF C RIMINAL P ROCEDURE , advancing the following four grounds
for habeas relief: (1) actual innocence based on newly discovered
evidence, to wit: the recatnation of M.M., formerly known as M.P.; (2)
ineffective assistance of counsel; (3) involuntariness of plea because of
ineffective assistance of counsel; and (4) violation of Brady v.
Maryland . (C.R. at 4-11.)
On August 24, 2015, without holding an evidentiary hearing, the Honorable Ruben Reyes, District Judge of the 72nd District Court,
Crosby County, entered an order denying Appellant’s Application for
Writ of Habeas Corpus. (C.R. at 59-65.)
On September 21, 2015, Appellant filed a Motion for Reconsideration and Request for Evidentiary Hearing in which he
argued that he was entitled to an evidentiary hearing because he
v
asserted a claim of actual innocence based on newly discovered
evidence and under principles of Due Process. (C.R. at 66-74.) In said
Motion, Counsel for Appellant made the trial court aware of the
recantation of M.M.. (C.R. at 69-70.) Additionally, in said Motion,
Counsel for Appellant made the trial court aware of (a) the fact that
Appellant was unable to secure an affdiavit from M.M. regarding this
recantation, (b) the fact that M.M. hired an attorney to contact
Counsel for Appellant regarding her unwillingness to sign an affidavit,
and (c) the fact that Counsel for Appellant planned on calling M.M. as
a witness during an evidentiary hearing on Appellant’s habeas
petition. (C.R. at 70.) On September 28, 2015, the trial court denied
Appellant’s Motion for Reconsideration and Request for Evidentiary
Hearing. (C.R. at 77.)
Appellant now appeals the aforementioned rulings of the trial court, having filed his notice of appeal on September 29, 2015 (C.R. at
75-76), and having obtained an extension of time to file appeal from
this Honorable Court on October 16, 2015.
vi *8 STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument and submits that it should be permitted because it would allow a more thorough
discussion of how Ex Parte Franklin , 310 S.W.3d 918 (Tex. App—
Beaumont 2010) and Ex Parte Brown , 205 S.W.3d 538 (Tex. Crim.
App. 2006) should apply to the unusual circumstances in this case, the
rule proposed in issue 3, and the competing interests at stake in
connection with said proposed rule.
vii
ISSUES PRESENTED Issue 1 - When a habeas petitioner asserts a Herrera -claim of actual
innocence based on newly discovered evidence, the trial court should
conduct an evidentiary hearing. In this case, the trial court refused to
hold an evidentiary hearing. As his first issue, Appellant asks this
Court: did the trial court err by refusing to hold an evidentiary
hearing on Appellant’s Herrera -claim of actual innocence?
Issue 2 - When a habeas petitioner is entitled to an evidentiary
hearing on one of the grounds asserted for habeas relief, the petitioner
should be permitted to advance all the remaining grounds in the
evidentiary hearing. In this case, the trial court refused to hold an
evidentiary hearing on all of Appellant’s grounds for habeas relief. As
his second issue, Appellant asks this Court: did the trial court err by
refusing to hold an evidentiary hearing on Appellant’s non- Herrera
claims for habeas relief.
Issue 3 - Procedural due process requires an opportunity to be heard
at a meaningful time in a meaningful manner. In this case, the victim
in the underlying case has made written statements consistent with
Appellant’s right to habeas relief, but refused to provide an affidavit to
habeas counsel. Therefore, Counsel for Appellant was reqruied to
subpoena her to an evidentiary hearing to explore the recantation. As
his third issue, Appellant asks this Court: did the trial court err in
refusing to hold an evidentiary hearing at which the “reluctant”
recanting victim could be compelled to testify?
viii *10 STATEMENT OF FACTS On February 5, 1996, the Honorable J. Blair Cherry, District Judge of the 72nd District Court, Crosby County, in cause number
2420, placed Appellant on deferred adjudication probation for
indecency with a child. (C.R. at 24.) The victim in said case was
named M.P., now M.M. (C.R. at 5, 15, 23).
M.M. has recently recanted her accusations; she wrote in an electronic message “cause what I can recall is that [Appellant] didn’t
do anything to me and I wrote that in the statement too many years
ago . . . .” (C.R. at 5-7, 69-70, 73-74.) Appellant hired Counsel for
Appellant to pursue a writ of habeas corpus based on this recantation,
and other grounds advanced by Counsel for Appellant; however, M.M.
was extremely reluctant “to get involved.” ( See C.R. at 70.) Counsel
for Appellant attempted to contact M.M. prior to filing the Petition for
Writ of Habeas Corpus, but she hired an attorney who sent a letter to
counsel for Appellant advising that M.M. would not sign an affidavit
and did not wish to speak with Counsel for Appellant. (C.R. at 70.)
Regarding the second and third grounds for habeas relief, Appellant was not informed of the consequences of his guilty plea—to
ix
wit: that he would be required to register as a sex offender—and, in
fact, he was told the opposite: that he would not be required to register
as a sex offender, since he was only being placed on deferred
adjudication, not convicted. (C.R. at 7-10.) This was contrary to the
law in effect on the date of Appellant’s guilty plea. (C.R. at 9.) This
fact was the basis of Appellant’s second and third ground advanced for
habeas relief, ineffective assistance of counsel and involuntariness of
plea. Gene Walters, Counsel for Appellant in the underlying case,
indicated that he did not have any “independent recollection of
anything that happened in the case.” (C.R. at 43.) Gene Walters
indicated in his affidavit for the State that, despite the fact that he has
no independent recollection of Appellant’s case, based on Mr. Walter’s
regular practices, Appellant must be mistaken about his allegations.
( See C.R. at 43-44.)
Regarding the final ground for habeas relief, M.M. recently stated, in writing, that she indicated Appellant’s lack of culpability to
law enforcement in a written statement during the investigation in the
underlying case. ( See C.R. at 69-70, 73-74.)
x *12 On August 24, 2015, without holding an evidentiary hearing, the Honorable Ruben Reyes, District Judge of the 72nd District Court,
Crosby County, entered an order denying Appellant’s Application for
Writ of Habeas Corpus (C.R. at 59-65.) and on September 28, 2015, the
trial court denied Appellant’s Motion for Reconsideration and Request
for Evidentiary Hearing. (C.R. at 77.). Appellant now appeals these
rulings.
xi *13 SUMMARY OF ARGUMENT Issue 1 - Appellant respectfully submits that, consistent with the
holding in Ex Parte Franklin , 310 S.W.3d 918 (Tex. App.—Beaumont
2010), this Court should reverse and instruct the District Court to hold
an evidentiary hearing on Appellant’s Herrera -claim of actual
innocence because Appellant asserted a claim that, if true, would
establish affirmative evidence of his innocence.
Issue 2 - Appellant respectfully submits that this Court should
reverse and instruct the trial court to hold an evidentiary hearing on
Appellant’s “non- Herrera ” claims of entitlement to habeas relief
because Appellant should be permitted to develop all asserted grounds
for habeas relief where he is entitled to develop his Herrera -claim of
actual innocence in an evidentiary hearing.
Issue 3 - Appellant respectfully submits that, under principles of Due
Process and to give effect to article 11.072 of the T EXAS C ODE OF
C RIMINAL P ROCEDURE , this Court should reverse and instruct the trial
court to hold an evidentiary hearing on Appellant’s Herrera -claim of
actual innocence to allow Appellant to subpoena the “reluctant”
recanting victim to explore her recantation.
xii
STANDARD OF REVIEW While a trial court has discretion regarding whether to hold an evidentiary hearing, see T EX . C ODE C RIM . P. art. 11.072, § 6(b), the
standard of review, in this case, is de novo because (1) the issue of
whether Appellant was entitled to an evidentiary hearing was a mixed
question of law and fact and (2) the judge of the trial court in the un-
derlying case was the Honorable J. Blair Cherry (C.R. at 24-25) and
the judge in the writ proceeding was the Honorable Ruben Reyes (C.R.
at 1, 65, 77) and, therefore, the trial court was not in an appreciably
better position than this Court. Ex Parte Franklin , 310 S.W.3d 918,
921 (Tex. App.—Beaumont 2010) (applying de novo standard review in
such a situation).
xiii
ARGUMENT
I. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s Herrera -claim of actual innocence because Appellant asserted a claim that, if true, would establish affirmative evidence of his innocence. The Code of Criminal Procedure provides that a person may seek a writ of habeas corpus for relief from an order placing the individual
on community supervision. T EX . C ODE C RIM . P. art. 11.072, § 1. In
cases in which a writ of habeas corpus is sought under article 11.072,
the Court is required to enter a written order ruling on the application
and, in doing so, “the court may order affidavits, depositions,
interrogatories, or a hearing, and may rely on the court's personal
recollection.” T EX . C ODE C RIM . P. art. 11.072, § 6(a)-(b). Therefore, the
trial court has the discretion to order any or all of the aforementioned
procedures. See id. However, in certain circumstances, the law
requires the trial court to order a hearing, rather than simply ruling
on the contents of the application, response, and their attachments.
Ex Parte Franklin , 310 S.W.3d 918, 921-23 (Tex. App.—Beaumont
2010) (holding that habeas applicant was entitled to a hearing to
explore recantation since applicant asserted a claim of actual
innocence based on newly discovered evidence); see Ex Parte Brown ,
205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (recognizing that, before a
habeas applicant is entitled to a hearing, they “must make a claim
that, if true, establishes affirmative evidence of innocence”).
In Ex Parte Franklin , Tracy Franklin filed applications for writs of habeas corpus and included an affdiavt from the victim in the
underlying case in which she recanted her trial testimony. 310 S.W.3d
at 920, 922. The trial court denied the applications for writs of habeas
corpus without holding an evidentiary hearing. Id. at 920. On appeal,
Franklin argued that the trial court abused its discretion in failing to
conduct an evidentiary hearing. Id. at 919-20. The Beaumont Court of
Appeals, however, determined that the appropriate standard of review
was de novo because the issue of whether Franklin was entitled to a
hearing was a mixed question of law and fact and the trial judge was
not in an appreciably better position than the appellate court since the
trial judge in the writ proceeding was not the judge at Franklin’s trial.
Id. at 921. For this same reason, de novo is the appropriate standard
of review in this case, as the case at bar involves a mixed question of
law and fact, as to Appellant’s entitlement to an evidentiary hearing,
and the judge in the underlying case (Hon. J. Blair Cherry) was not
the judge who presided in the habeas proceeding (Hon. Ruben Reyes).
(C.R. at 1, 24-25, 65, 77.)
The Franklin Court characterized the claim advanced as a Herrera -claim because Franklin advanced the claim that he was actu-
ally innocent based on newly discovered evidence. Franklin , 310
S.W.3d at 921 (quoting Ex Parte Brown , 205 S.W.3d 538, 544 (Tex.
Crim. App. 2006)). The Franklin Court framed the issue as follows:
“whether Franklin’s ‘newly discovered evidence,’ which in this case
consists of S.D.’s 2006 affidavit, ‘establishes affirmative evidence’ of
Franklin’s innocence.” Id. In Franklin , the applicant was able to, and
did, attach an affidavit from the victim in the underlying case indicat-
ing “she ‘made up the story’ she provided at trial, and then states that
Franklin ‘did not touch me or molest me in any inappropriate way.’”
Id. The Beaumont Court of Appeals concluded that this affidavit was
sufficient to entitle Franklin to a hearing because it, if true, consti-
tutes affirmative evidence of Franklin’s innocence. Id. at 923. The
Franklin Court wrote, “[w]e conclude that because Franklin asserted a
claim that he was actually innocent, the trial court should have con-
ducted evidentiary hearings to allow Franklin the opportunity to call
S.D. as a witness and to allow S.D. to provide an explanation about
which of her accounts is accurate.” Id.
In this case, unfortunately, for reasons discussed more fully in Appellant’s third issue, this is not the typical recantation situation,
since M.M. indicated, in an electronic communication, that Appellant
did not commit the underlying offense, but was unwilling to provide an
affidavit for inclusion in Appellant’s Application for Writ of Habeas
Corpus. (C.R. at 69-70, 73-74.) And while Appellant was unable to
procure an affidavit from M.M., formerly M.P., Appellant did produce
to the trial court electronic messages from M.M. in which she indicates
that Appellant did not do anything to her. (C.R. at 73-74.) Appellant
respectfully submits that this constitutes a written recantation, de-
spite the fact that it does not meet the formalities of an affidavit. In
addition to this written recantation, the verified Application for Writ
of Habeas Corpus alleges that Appellant “believes he will be able to
present what qualifies as newly discovered evidence, the recantation of
M.M. . . . .” (C.R. at 6, 13.) Here, as in Franklin , Appellant asserted a
claim that he was actually innocent based on newly discovered evi-
dence and produced newly discovered evidence that, if believed, estab-
lishes affirmative evidence of his innocence. For these reasons, the
trial court erred in refusing to hold an evidentiary hearing. Id. at 923.
Appellant respectfully submits that the threshold issue, with respect to a habeas applicant’s entitlement to an evidentiary hearing
on the issue of actual innocence based on newly discovered evidence, is
most analogous to a burden of production. See Ex Parte Brown , 205
S.W.3d 538, 546 (Tex. Crim. App. 2006) (citing Ex Parte Franklin , 72
S.W.3d 671 (Tex. Crim. App. 2002) [1] (discussing the procedure for
entitlement to a hearing and the purpose of the evidentiary hearing).
This is so because the applicant must present evidence that
constitutes affirmative evidence of the applicant’s innocence and, once
they do so, the cause can proceed to a determination of whether the
applicant can meet its burden of persuasion. Ex Parte Franklin , 72
S.W.3d at 678 (Tex. Crim. App. 2002); see also Ex Parte Brown , 205
S.W.3d at 546 (providing that the habeas applicant must “make a
*20 claim that, if true, establishes affirmative evidence of innocence”
before entitlement to a hearing).
Appellant met this burden of production ( see C.R. at 73-74.), as required by Ex Parte Franklin , 72 S.W.3d at 678 (Tex. Crim. App.
2002), and made a claim that, if true, establishes affirmative evidence
of innocence ( see C.R. at 6, 13.), as required by Ex Parte Brown , 205
S.W.3d at 546. Appellant should be allowed, at an evidentiary
hearing, to carry his burden of persuasion. This Court should reverse
and instruct the trial court to hold an evidentiary hearing on
Appellant’s Herrera -claim of actual innocence because appellant
asserted a claim that, if true, would establish affirmative evdience of
his innocence.
II. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s other claims of entitlement to habeas relief because Appellant should be permitted to develop all asserted grounds for habeas relief in an evidentiary hearing where he is entitled to develop *21 his Herrera -claim of actual innocence in an evidentiary hearing.
As a practical matter, an applicant for a writ of habeas corpus who is entitled to an evidentiary hearing, as described in Appellant’s
first issue, should be permitted to advance all grounds raised for
habeas relief at the evidentiary hearing. In this case, Appellant
advanced the following four grounds for habeas relief: (1) actual
innocence based on newly discovered evidence; (2) ineffective
assistance of counsel; (3) involuntariness of plea because of ineffective
assistance of counsel; and (4) violation of Brady v. Maryland . (C.R. at
4-11.) Since Appellant is entitled to an evidentiary hearing on the
first ground, it only makes sense for Appellant to be permitted to
address the second, third, and fourth grounds at such a hearing.
Otherwise, the procedure would become unnecessarily complicated by
different requirements of proof for the various grounds, with a portion
of the grounds advanced being determined without an evidentiary
hearing and the remainder being determined at an evidentiary
hearing.
Furthermore, the language of the statute does not expressly authorize the trial court to order a hearing on only a portion of the
application for writ of habeas corpus. See T EX . C ODE C RIM . P. art.
11.072, § 6(b). Such a “bifurcation” is not expressly permitted by
statute and Appellant respectfully submits that practical
requirements neccessitate a rule that a habeas applicant is entitled to
develop all asserted grounds for habeas relief in an evidentiary
hearing where he is entitled to develop one or more of his grounds for
habeas relief an evidentiary hearing.
For the aforementioned reasons, this Court should reverse and instruct the trial court to hold an evidentiary hearing on Appellant’s
“non- Herrera ” claims of entitlement to habeas relief because Appellant
should be permitted to develop all asserted grounds for habeas relief
where he is entitled to develop his Herrera -claim of actual innocence in
an evidentiary hearing.
III. This Court should reverse and instruct the district court to hold an evidentiary hearing on Appellant’s Herrera -claim of actual innocence to allow *23 Appellant to subpoena the “reluctant” recanting victim to explore the recantation.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution prohibits any state from depriving any
person of life, liberty, or property without due process of law.
Similarly, the Texas Constitution provides that “No citizen of this
State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disinfranchised, except by the due
course of the law of the land.” T EX . C ONST . art. 1, § 19. Due process
fundamentally requires the opportunity to be heard “at a meaningful
time and in a meaningful manner.” Matthews v. Eldridge , 424 U.S.
319 (1976) (quoting Armstrong v. Manzo , 380 U.S. 545, 552 (1965)).
This case involves an unusual set of cirumstances, where the victim in the underlying criminal cause, M.M., indicated, in an elec-
tronic communication, that Appellant did not commit the underlying
offense, but she was unwilling to voluntarily provide an affidavit for
inclusion in Appellant’s application for writ of habeas corpus. (C.R. at
69-70, 73-74.) And while Appellant was unable to procure an affidavit
from M.M., formerly M.P., Appellant did produce to the trial court
electronic messages from M.M. in which she indicates that Appellant
did not do anything to her. (C.R. at 73-74.) In such a situation, Appel-
lant respectfully submits that Appellant should have been permitted
to subpoena M.M. to an evidentiary hearing to explore her recantation.
Appellant does not argue that every habeas applicant in every situation should be permitted to call a victim to the witness stand.
Such a rule would undoubtedly prove unworkable as convicted crimi-
nals would certainly attempt to re-litigate their cases. Rather, Appel-
lant respectfully submits that an appropriate rule would be one that
allows a habeas applicant, who advances a claim of actual innocence
based on newly discovered evidence, to subpoena a victim to the habe-
as evidentiary hearing where the victim has made an unequivocal
statement or statements regarding the applicant’s innocence and that
fact is demonstrable by substantial evidence. This rule would strike
an appropriate balance between judicial economy and giving appropri-
ate finality and respect to final judgments, on the one hand, and guar-
anteeing that an actually innocent habeas applicant has the procedur-
al due process necessary to exonerate him or herself, on the other
hand. See Matthews v. Eldridge , 424 U.S. 319, 335 (1976) (analyzing
the level of procedures appropriate in particular circumstances by bal-
ancing various interests, including the private interest that will be af-
fected by the action, the risk of erroneous deprivation of such interests
through the procedures in place, and the government’s interest, in-
cluding financial and administrative burdens, that the additional re-
quirements would entail.) It would allow the habeas applicant the
opportunity to be heard at a meaningful time and in a meaningful
manner and to compel the recanting victim to testify regarding the
recantation, where the applicant can make the threshhold showing
that the victim has made an unequivocal statement or statements re-
garding the applicant’s innocence and that fact is demonstrable by
substantial evidence ( e.g. , witness statements, recordings, written or
electronic correspondence, etc.).
Appellant further respectfully submits that, in situations such as this, article 11.072 of the Texas Code of Criminal Procedure is ren-
dered ineffective if the habeas applicant is unable to compel the re-
canting, but reluctant, victim to testify at an evidentiary hearing. The
legislature created a procedural framework for habeas relief in com-
munity supervision cases, but such framework does not guarantee an
actually innocent habeas petitioner the right to compulsory process to
establish his innocence based on newly discovered evidence, such as a
recantation. See T EX . C ODE C RIM . P. art. 11.072. Is a habeas applicant
with an open and forthcoming recanting victim any more innocent
than a habeas applicant with a wary or inaccessible recanting victim?
Again, Appellant does not suggest that all habeas applicants should be
able to call victims to the witness stand in every situation, but only
that habeas applicants should be able to do so where the victim has
made an unequivocal statement or statements regarding the appli-
cant’s innocence and that fact is demonstrable by substantial evidence.
Appellant respectfully submits that, under principles of Due Process, under the Fourteenth Amendment of the United States
Constitution and article 1, section 19 of the T EXAS C ONSTITUTION , and
to give effect to article 11.072 of the T EXAS C ODE OF C RIMINAL
P ROCEDURE , this Court should reverse and instruct the trial court to
hold an evidentiary hearing on Appellant’s Herrera -claim of actual
innocence to allow Appellant to subpoena the “reluctant” recanting
victim to explore her recantation.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays
that this Court reverse and instruct the 72nd District Court, Crosby
County, to hold an evidentiary hearing on all grounds for habeas relief
pled in Appellant’s Application for Writ of Habeas Corpus or, in the al-
ternative, at least his Herrera -claim of actual innocence based on new-
ly discovered evidence. Appellant prays for such other and further re-
lief to which he is justly entitled.
W ARE S HAY & G ARCIA , PLLC 1915 Broadway Lubbock, Texas 79401 (806) 763-5044 – Phone (806) 763-7536 – Fax /s/ Benjamin P. Garcia SBN 24073120 COUNSEL FOR A PPELLANT CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this brief contains less than 5,000 words.
/s/ Benjamin P. Garcia *28 CERTIFICATE OF SERVICE I certify that, on this, the 25th Day of November, 2015, a copy of Appellant’s brief (redacted) was served on Appellee through the elec-
tronic filing manager if the email address of the party or attorney to be
served is on file with the electronic filing manager or, if the email ad-
dress of the party or attorney to be served is not on file with the elec-
tronic filing manager, it was served in person, by mail, by commercial
delivery service, by fax, or by email, in compliance with T EXAS R ULE OF
A PPELLATE P ROCEDURE 9.5(b).
/s/ Benjamin P. Garcia
[1] Not to be confused with the similarly titled Ex Parte Franklin , from the Beau- mont Court of Appeals, previously discussed.