Case Information

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$81,101-03$

C-2-010406-1227000-A

EX PARTE IN THE CREMENAL DISTRICT COURT No. 2 RUSSELL TERRY MCELVAEN TARRANT REMEIKPDUNTEYAS COURT OF CRIMINAL APPEALS

APPLICANT'S OBSECTION TO STATE'S RESPONS $82015$

TO THE HONORABLE TUDGE OF SAID COURT: $$ - AbolAcosta,Clork $$

I., Russell Terry McElvain, Applicant pro. se, object to all items within the State's Memorandum, Findings of Fact and Conclusions of Law, submitted by Andréa Jacobs, Assistant Criminal District Attorney, Tarrant County, on August 25, 2015 and adopted by the Court on August 27, 2015, regarding my Application for. Writ of Habers Corpus. I stand by all my grounds in my application as noted in the original inmate's declaration and oath that I believe, under penalty of perjury, that according to my belief, the Facts stated are true and correct. I do wish to bring to the attention of this Honorable Court, internal problems, and possible sercuption within Tarrant County area palice recently covered by the Fort Hdorth Star-Telsgram in articles on June 13, 2015 and June 20, 2015. The new District Attorney, taking office in January 2015 "discloses probe into questioned police testimony" the June 13 headache reads. The June 20 Headline, "officers accused of lying, "winging it' by Tarrant County prosecutors, documents show." While I am not in a position to obtain all of the details and officers names, the "sredibility of 16 officers" is questioned in 9 communities surrounding Haltern City and the Tarrant County Sheriff's office. To read statements, "Regarding a Watauga officer's testimony, a prosecutor said, "I thought he was making stuff up or just winging it" or "Don't trust anything he says, another prosecutor waste about a Eulers lieutenant" is quite daunting while being accested, tried and seovicted under

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this prior administration, particularly when a major ground $E$ have deals with a detective's testimony and my interrogation. This is the tep of the 1 sebery. To say this is irrelevant to my case may be true, yet could be an egceglous error. If they can name 10 officers in 9 communities, what's to say there aren't more?

DIRECT OBJECTIONS TO SELECT STATE RESPONSE'S ON EACH GROUND STATE'S FENDENGS OF FACT (USERS THE STATE'S NUMBERING)

GRQUND ONE:

1. In SRR 91, the victim does not testify that Applicant took pictures and videotaped sexually abusing her.
2. The State notes, "other than sitting to the victim's testimony, Applicant presents no evidence to support his claim that the astory will now committed perjury." A child's testimony alone can convict a man, yet if the victim says no this did not happen, the Court suddenly doesn't believe her? Lindsey Dula clearly lived in regard to the victim's astory.

GRQUNDS TWO, FIVE, AND FIFTEEN:

The use of terms "reasonable total strategy" and "strategy decision" are used lussely throughout. It's a catch-all when no other reason exists. Unreasonable is a better suited word. 9). The State overlooked the point that the black videotape was not on the search warrant and thus taists the entire evidence. 19. Yes, the jury was given an extraneous evidence instruction, but there was no definition as to what was extraneous and what wasn't. They had photos and video but no explanation dividing them, pointing out what could and could not be used. Evidence from prior to the statute's enactment was not separated. 22. There is no record of the report from the psychologist. This is a he (Applicant) said is she (Attorney) said. I know what I heard from Ms. Campbell, and it wasn't quicting the psychologists report.

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1. The State notes, "Applicant presents an evidence that Mr. Westbore or Ms Heuser were biased or objectionable." This is incorrect as I did point to the Reporter's Record where Mr. Westbore states a friend was a victim of child sexual abuse and Ms Heuser states it was herself who was a victim of child sexual abuse. Does this Honorable Court truly believe they were unbiased?
2. The State notes, "Applicant presents an evidence to support his claim that not all of the evidence admitted was child pornography." This is wrong. In my Memorandum, I point to cases in the 5th Circuit and the U.S. Supreme Court where nude photos of children are ruled as non- pornographic, just as photos held as evidence in this case. I stand by my ground and supporting Memorandum. These photographers were not imprisoned, and neither should I be.
3. A private iwestigator hired by Ms. Campbell could have determined the victory wstress's story was different than that of the victim herself. He/she could have iwestigated formally and past foster children histories to determine the applicant had no history of sexually abusivg anyone. This could have been presented as favorable attributes, characteristics of the Applicant. He/she could have found all the information about "legal" photos of nude children (see above notes) and persued the fact that all of the evidence is not child pornography. 36-49. When a man is 55 years old, arrested for the first time in his life, 9 law abiding citizen, he trusts the attorney, who has experience and education. I was very naive about the whole legal process.
4. Ms. Campbell stating she "those not to present Applicant's history of seeking out and viewing child pornography" is totally misdirected. There is no history of this behavior. Playboy and Hustler magazines are not child pornography, nor are audist lifestyle photos. 59-61. I was charged under Anal Code 21.02. "Sexual Contact" was not a part of my charge. It was not listed on the indictment, so all of the sexual contact information is a product of ineffective

*4 assistance of counsel. 65. I did not sexually abuse Kaitleigh. 72. Because the Eighth Court of Appeals found the counsel's objection was not sufficient to preserve the issue for appeal, this statement by the State is, in effect, pointing to my ineffective assistance of counsel. Counsel's objection should have been made in the proper manner, making this below the standard expected. 73-75. Detective Treviso stated, on the record, that he said you will not get into any more trouble. After disclosure of the location of the photos and video, the charges increased (more trouble) and had higher penalties (more trouble). 77. I never admitted to sexually assaulting Kaitleigh. 80. The State notes, "Oace Detective Treviso found the images, true to his word, he did not add to the charges against appellant." This is totally the State of Texas trying to backpedal and cover for an officers inept practices. (See page 1) Does a detective bring charges against the offender? Did he himself produce the original charges? It would appear" he can say and do and promise anything he wants because his behind is covered because "he" does not do the charges. Someone else does. This seems like very saphororic behavior. It is pointed out in item 81 the charges were produced by the DA's office and the grand jury. This is simply, absolutely, morally, wrong. 83. The State notes, "no evidence of improper inducement." Promises of no more trouble is inducement. A detective saying, "I don't care what you did... Do this for your daughter... I understand, she's a good looking girl... Do you believe in second chances?" are all inducements. The entire Reed Investigation/Interview Technique has come under senting in many places around the country, because of it's inducements. 86. Inproper inducement would have removed the photos and video

*5 from the evidence, as well as the entire interrogation. This would have severely hampered the State from winning. The proceeding would have gone totally different, a totally different outcome. 91. Totally disagree. Had the attorneys been more effective in all grounds? I listed the outcome would have been entirely different. Ground Thiele: 93-94. I was not changed with sexual contact. Ground Four: 95. The State notes, "Applicant did not raise on direct appeal...." This becomes a yes to Ineffective Assistance of Appellate Counsel (Ground 14). 97. The photos and videos was not separated, so they (jurors) did not know which were to be used only to determine the relationship between the victim and Appellant, and which could be used to convict and punish. 100. The State notes, "Detective Trevinadid not File any more changes." 101. The State notes, "The State upgraded the changes Detective Trevinofiled." If you add $100\pm 101$ the sums is not ethically correct, not morally correct, and fails to generate much respect for the police in general. 103. If this is true, take me back for a retreat, pulling all the photos and videos, and see if the outcome changes. How confident is the State? 104. Completely object.

Ground Six: 106. The State notes, "Applicant did not raise on direct appeal...." This becomes another yes to Ineffective Assistance of Appellate Counsel (Ground 14). 107. An extraneous offense instruction was included, but the evidence was not separated so the juvy would know what was extraneous and what was not. It's like putting together a kit with instructions, but the parts are not identified. What do I use? What do I not use? Ground Seven; 109. The State notes, "Applicant did not raise on direct appeal.... This becomes $\#3$ for Ineffective Assistance of Appellate Counsel (Ground 14).

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GROUND EIGHT:

1. The State notes, "Applicant did not raise on direct appeal...." This is yet another (4) For Ineffective Assistance of Appellate Counsel (Ground 14). Ground NINE:
2. The State notes, "Applicant did not raise on direct appeal...." This is 5 now for Ineffective Assistance of Appellate Counsel (Ground 14).
3. The State notes, "Applicant did not raise on direct appeal...." This is 6 For Ineffective Assistance of Appellate Counsel (Ground 14). Grounds TEN AND TWEVE:
4. The State notes, "Applicant did not raise on direct appeal...." This is 7 For Ineffective Assistance of Appellate Counsel (Ground 14). 118. The State notes, "Applicant did not raise on direct appeal...." This is 8 For Ineffective Assistance of Appellate Counsel (Ground 14). Ground ELEVEN:
5. The State notes, "Applicant did not raise on direct appeal...." Nine now For Ineffective Assistance of Appellate Counsel (Ground 14). Ground Thirteen: 121-123. The ground is not "Mistake of Low", the ground is "unaware the $$ penal code existed," thereby not knowing the action was illegal, thereby violating his rights. Grounds Fourteen and Fifteen: The use of the phrase "reasonable appellate strategy" is a catch-all when $$ on other valid reason exists, whether it was truly strategy or not. 125-126. The State notes, "Hon. Davis advanced the strongest arguments that he found," and "Applicant presents no evidence to support his claim that counsels chosen claims were not very strong." Thanks to the State's response in this document, there are 9 aforementioned items attributed to not being raised on direct appeal. There's the evidence.
6. The State notes, "Hon. Davis did not complain on direct appeal that (6)

*7 a lesser included offense instruction was not included in the jury change because this issue was not preserved for appeal." Thus, this accounts for ineffective assistance of trial counsel for not properly preserving it. 12). Another issue not preserved for appeal the coby pointing to ioeffective assistance of trial counsel. The jury was not properly instructed as they had no separation as to what evidence was extraneous, what was not. 122. Yet another issue not preserved for appeal, yet another poisting to ioeffective assistance of trial counsel. 125. The State notes, "Hon. Davis did not complain on direct appeal that Applicant received ioeffective assistance of counsel because the record was not sufficient to resolve the issue." The appellate counsel could not bring it up because the record was insufficient, because the trial counsel did not properly preserve items in the record, because they were ioeffective. 127-138. Having the victim state, under oath, on the stand, this form of child sexual abuse, this element and/or manner and means of committing the charged offense, did not occur, when the outcry witness said it did occur was clearly important enough for the appeal, and not reasonable strategy not to note it. 129. I stand by my ground that the two outcry witnesses were not permissible per the aitings in my Memorandum. 141. I stand by my ground that the "do your duty...find him guilty...he did it...you have the opportunity to do something" rhetoric is improper as per cases cited in my Memorandum. This, combined with telling the jurors the victims ace our daughters, neighbors, friends was impermissible. 142 150. The State notes, "There is no evidence that a reasonable likelihood exists that the outcome of the proceedings would have been different had counsel advanced different arguments on appeal."

*8 This is impossible to prove. Reviewing all of the "not properly preserved" answers, one clearly can surmise that the outcome would have been different. The State has no evidence to prove it would have been the same either.

UNSWORN DECLARATION I, Russell Terry McElvain, being presently incarcerated in the Ellis Unit of the Texas Dept. of Criminal Justice - Institutional Division in Walker County, Texas, verify and declare under penalty of perjury that the Foregoing statements are true and correct to the best of my knowledge. Executed this 6th day of September, 2015.

Russell McElvain

CERTIFICATE OF SERVICE I hereby certify that a copy of this Applicant's Object in to State's Response has been mailed, postage prepared, to Shacen Wilson, Criminal District Attractey, Tarcant County, 991 W. Belknap, Ft. Worth, TX 7696 and to Thomas A. Wilder, District Clerk, Tarcant County, 991 W. Belknap, Fort Worth, Texas 76196 by the United States Postal Service, this 6th day of September, 2015.

Russell McElvain

Russell McElvain

TDC: TD* 1709041

Ellis Unit

1697 FM 980

Huntsville, Texas 77343