Case Information
*1
Abd Acosta-Clerk Roboil 13-209 Capital station Austin TX 78741
Date: Sep 28 2015 RECIEIVED IN COURT OF CRIMINAL APPEALS OCT 022015
AbelAcosta,Clerk
Yes, Enclosed is Applicants Concurings and Objections to be Filled Storffed dated and set for Submission with this Cover witt habeas Review offabave Cause number. Can You Please set before cannt and in habeas file in Your Usual fashion. Please fectuen documents if trisl count has not sent habeas files to this count.
Thack Yew Jobun Eren
Ooshua Green t 178763 2661 FM 9054 Tennessee Coton 7475884
*2 CAUSENO: 18 FOI 72 - 102 EXPANTE JOSHUA GREEN
IN THE DISTRICT COURT 102nd SUdICIAL DISTRICT OF BONIE COURT'S TEXAS
APPLICANt'S CONCUPPING AND DISJECTIONS TO THE TIMIAL COURT'S RECOMMENDATION TO DENTHIS HABEAS PETITIEN
APPIicant Now Files his concurine and objections to the trial courts (ecommerdations, Ctr.ct. Recom.).
APPIicant raised —srauds of ineffective assistance of counsel on his trial counsel.
Grand three - Trial counsel failed to present material mitiessation evidence duine the sentenine Prose of trial, (Tr.ct. Recom. PaSe 33(12).
APPIicant objects to trial counsels response and the trial courts denial of this Grand based on counsels affidavit assertions:
Trial counsels response to this Grand does not comport to Apticants habeas contentions arewed of counsels failure to present material mitiestine evidence duine the Punishment Phase See (Application 9.10; memorandum 7.13-18).
One of the states witnesses led (Giseia Altamirand) about did he hear Aptlicanet egress concern for anfore else other than him seif duine a Police interview and he said no. (Rrns: P. 73, In18-20). Counse! failed to show the portion of this recorded vided, which the Junt never save duine trial because counsel failed to utilize his elent to pitional completeness to show surt this Particular expression of remorse that the witness previously lled about. This lie changes the whole evidenitary Picture that the Junt saw duine trial. No it Infores that all thei saw at trial was not true which counsel should of
*3 Cerected. Even Stailuland Sussests that "sone errors will have had a Pervasive effect on the influences to be drawn from the evidence, altering the entire eviden tiont Pictures in this case) Se 2.G. Strickland 46605, 668; 655-46; 1045072052,2064-67
Counsel allouins this Fabrication to stand was abjectionablt unressonable. Because the trial counsel as well as the trial court did not address the PrePentY exhausted avound for relief it is failed to belnd. adjudicated.
Ground four-Trial counsel failed to abject to leading the witness on critical issues bY the state. (Tr. Ct. Recam. P. 4- 43).
Aptticant'assess' with the courts findinesthat trial counsel azees to issulne deficient Performance) but objects to the courts resolution.
The trial court held that because Aptticant's avound was based on a failure to abject, he must 'establish' that the trial Sudee would er if it everruled abjection.Et Partenbite 1605 w3d 46.5320042 we also aEre, however Aptticant objects that the trial court believe that Aptticant did not establish this Prince Ple. Just'writing' words to state "that if caused would of abjected the trial court would er in deningis not enough to uavrant an establishment of this standard. So Stickand SuPra PrePoses that if, by the Preponderance of the evidence that uavants a Probability that had counsel abjected the Proceeding would of been different. E.Parte willions 6655032656 ( 658 (2001), this is how the established standard is Produced.
Aptticant and his counsel aEreed that he rendered constitultional" deficient Performance and the record confirms it. (Tr. Ct. Recam.P.4) The benchmark for Juideine and claim of ineffective assistance is whether counsel's conduct so underinined the ProPer eanedustion functioning of the adversarial Process that the trial cannot be relied upon as having Produced a just result. Strickland 46605, 696. There isno strategic ferson to allay the state to testify and lead the
*4 Complaint on crucial and critieate issues of the Proscur tion. APEticant b? a PrePorderance of the evidence, SuPerted b? the record and trial counsels assertions established that the Probability exists enough to undermine the relance of the Verdict. Ex. Porto uubite 160 s wad at 53 . See (Appl. Mem. P. For support).
Ground five-failure to obseed to courts derial of admittance of evidence to Preve biasness and motive (Tr. Ct. Recam. PS. H4).
Apticantobjects to the courts recommendation for several reasons. First, counse did not address his actions for this claim only Statins that it is a matter of record and Pushed the resPorsibility on the trial court. Second, its true that ahearines was held on the bias and motive evidence and the Judse ruled then notadmissibie See (RRUY, Page 1101 in 14-25). However counsel did not obiect to this denial and Preserve error for affeitate Review. An objection for Affeitate review must be sPecific according to TRAP. 33.1. Just arseins on the record is not an objection. Prora נסate 2855 wad. 459.4164 (Tr.cr. APR 2005)
The evidence shows bion PrePorderance of the evidence 0 that the constitutional couprinter of a fair trial dems bias and motive evidence relevant and holds the trial court in abuse of discretion for not allosins it. See Shelby's state 8155 wad 544.549 -31 (TNCr.APP. K91); for 4 state 1155 wad 550.566 - 18 (Tr.APP.1100. 147 2002. Ret. ref'd). around sit-failure to imPercch on two critical issues (Tr.Ct. Recam. 169) Apticant concurs with the factual record that the two courts recond soxual assault and two reconded assofaciated sexual assault, objects to the trial courts findings that Apticants arsumant thata continued strategy would have changed outcome was mertiassless.
Apticant arsued that counselchensed his trial strategy from
*5 attracting the comPlainants testimons bf her Inconsistent statements that her Phisical abuse started when she was in her Freshman Year Yet in trial she stated it started when ste was 80 CRR:4. P. 58, In 4-8), to only challenge 5 of the assovated chorers instead of 7 . Although counsel effectively in Peached the complainant on 5 of the assovated chorbes he minimized the evidence which also encom Passed the other two counts of assovated assault (sonal) according to her statements that no soual Phisical abuse started until when she was isorlo. wirt esibit 8 contains the statement. There can be no strategic choice to abandon excultatory evidence only because counsel couldn't ProPerly im Peach a witness. CRR:3iP. 104 In 2025; P. 105 In 1-15: RRS R.14, In 1-7. P. 14, In 1-6; P. 53, In 5-9). See also State for rules art.12 Sect. 81, 087-10108) (1,3)(6) 'No banifit in witholdins excultatory evidence from Juvy which is to determine attomev's client coullt or innocents.
Holdins counsel deficient in light of said record is not speculation because the deficient Performance is confirmed in the record. Vesaues 8305 wad 448451 (Tr. Cr. APR.1992)
Ground seven-failed to ProPerly admitt critical imPeach next evidence. (Tr.c. Recom. P.7).
Apti. cont objects. Had counsel ProPerly audhentiated the video he exduld of not had all the miscaculated attempts to imPeach the comPlainant. (RR:4.P.195, In 165-198). Even counsel's affidavit shows he is still not sure of the ProPer method of Authentication Provided by the Tet. R.2v. See (Tr.ct.Recom.P.8 n.2). See also CAPR.mem. P. 30-34.) It5 because of this that the trial court help the defense by allowing him to utilize the same Video the court ruled inadmissible to refresh memory (cout side the Presence of Juvy). See CRR:4 P.195-198: P254, In 21-25 P. 255 1-25; P256, In 1-13). Counse's failure failed to render reasonable assistance.
*6 Grand two-ApPellate counsel ineffective for not raisins legal sufficient. (Tp.ct.Recam. Pq 47)
Applicant objects. This corand'onl' 'challenged Grands &; and 9 which deal with scual assau'tt of a child. These counts deatl leith onlY Penetration.
The evidence adduced at trial showed that the illecal acts hoffened when the ComPlainant was either 14 or 17 . (14Rr: P.44). To be an scual assault of a child the crime has to be done to a child under 17 not 17 and under accordins to stutute. Penal Code 22.0112 (c) (c). The state failed to prove beXond a reasonable doubtst to when the allueed Penetration hoPhened. Tor it to be, as the chorse was, an setual assault of a child the state had to prove that the combinant was indeed a child Persifed bY statute which was under 17. APEed counsel failed to raise a moitous claim on direct affect. See (Appli. Memo. Page 7-13 for argument). This concludes Appli.ents objections Resectully Submilted.
*7 CERTIFICATE EFSERVICE I Soshua Green do certifv that atrue copthas been sent to Abel Acosta clerk covetof Grininal Afferals P.O.Bot 12308 Cupitol Station Austin TX 787 II bV Postal mail on the 2lday of Sep .