Florez, Esteban Huerta ( 2015 )


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  • §§.“W'O\
    ESTEBAN H FLOREZ
    3060 FM 3514 #1755424
    BEAUMONT, TX 77705
    ABLE ACoSTA,CLERK
    CoURT oF CRIMINAL APPEALS
    BoX 121308, CAPITOL STATION
    AUSTIN, TX 78711
    RE: w-21¢8734c-i=
    Dear Mr. Acosta; (Greetings)
    Please find enclosed a copy of Applicant’S Proposed
    Findings of Fact and Conclusion of Law to be provided to the
    presiding judge of the above Stated oause.
    Sincerely Thankful;
    ``é)'\~\-\S
    Esteban H. Florez(Pro Se)
    PECE|VE"D IN
    JUL 08 2015
    %@M@@§@@,d@w<
    NO. W-211873*C-1
    EX»PARTE; § IN THE 25isT'DISTRIcT coURT
    FLoREz,``ssTBBAN HUERTA, § IN AND FOR
    (Appli¢ant) - § RANDALL couNTY, TEXAS
    APPLICANT'S PROPOSED
    FINDINGS OF FACT AND CONCLUSIONS OF LAW
    .\.
    \,
    On June 2, §015, the applicant filed the instant writ application
    in Cause No. W-21.873-C-l. In this application, the applicant
    raised the following three grounds of relief: (l). ineffective
    assistance of trial counsel- (2) actual innocence. and (3)
    ineffective assistance of appellate counsel.
    on June 16, 2015, the criminal niscricc Attornéy of Randaii
    Countv, Texas, filed its State's Answer to Application For Writ
    of Habeas Corpus, generally denvinq all alleqations contained
    in the Application For Writ of Habeas Corpus.
    The Court havinq considered the application, Resoodent‘s answer,
    .testimony of trial counsel, and select official court documents
    and records in Cause No. 21,873~€, makes the followinq findinqs
    of fact and conclusions of law:
    PROCEDURAL HISTORY:
    INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:
    6.
    _Judicial District Court of``Randall Count
    and/or strike veniremembers who revealed
    FINDINGS OF FACT
    Applicant was indicted for the felony of
    assault with a deadly weapon in Cause No
    Applicant was represented by Mr. Jack Sw
    A jury convicted applicant of aggravated
    weapon and assessed punishment at 20 yea
    a $l0,000.000 fine.
    Applicant was represented on direct appe
    The Seventh Court of Appeals affirmed ap
    in an unpublished opinion delivered Janu
    Cause No. 07-11-00013-CR.
    Applicant alleged that Mr. Jack Swindell
    assistance of counsel by: (l) failing to
    the applicant and/or towards the State's
    proof, (2) failing to ask proper guestio
    to determine whether or not to use perem
    bias/prejudice, incapable, or unfit veni
    to timely object to an inadmissible extr
    statement made by a State's witness duri
    2.
    fense of aggravated
    . 21,873-€, in the ZSlst
    y, Texas.
    as trial counsel.
    indell,
    assault with a deadly
    rs imprisonment and
    al by E:Ric coATs ;
    plicant's conviction
    ary 26, 2012, in
    provided ineffective
    challenge for cause
    bias/prejudice against
    required burden of
    ns during voir dire
    ptory challenges upon
    remembers, (3) failing
    aneous offense
    ng direct examination,
    lO.
    ll.
    (4) refusing to allow the applicant to testify on his own
    behalf when applicant requested to do so, and (5) failing
    to investigate/interview witnesses for defense purposes.
    (Applicantls Writ Application, p.6-7); (Applicant's Memorandum,
    9.8-36)
    Mr. Swindell provided a sworn affidavit addressing each of
    Applicant's claims of ineffective assistance of counsel.
    State's Answer, Exhibit-3.
    THE COURT FINDS Mr. Swindell not credible in regards to his
    responses to applicant's claims of ineffective assistance
    of counsel.
    THE COURT FINDS, in regards to veniremembers, DUGGAN and
    SHARP, Mr. Swindell explained the applying law of the State's_
    burden of having to find applicant guilty beyond a reasonable
    doubt, and both, DUGGAN and SHARP stated clearly that they
    would still convict applicant on a lesser burden of proof, the
    "clear and convincing evidence" standard-
    THE COURT FINDS, Mr. Swindell did not challenge for cause, or
    strike veniremembers DUGGAN and SHARP based upon their inability
    to follow the required law pretaining to the State's burden
    of proof.
    THE coURT FINDS, although Mr. swindell had used all his
    peremptory strikes, he did not request from the court additional
    strikes to be used against DUGGAN, SHARP, or Mr. THAXTON,
    who also demonstrated bias/prejudice against applicant. The
    Court would had granted such.reguests.
    3_,
    12.
    13.
    14.
    15.
    16.
    17.
    THE coURT'FINDS, Mrj Swindell, upon asking Mr. THAxToN if
    it would make a difference (judging the evidence fairly)
    if he knew in advance that the applicant had been through
    the system before, Mr. Thaxton answered, "probably."_
    THE COURT FINDS, Mr. Swindell did not challenge for cause
    and/or strike Mr. Thaxton for his bias and/or prejudice
    opinion or beliefs, which clearly revealed his opinions or
    , beliefs would prevent or substantially impair nis ability
    to carry out his oath and instruction to not prejudge applicant
    based on any prior offenses applicant may have committed,
    in accordance with the law.
    THE COURT FINDS, although Ms. Donna Garcia testified during
    direct examination that she knew of a previous time when
    applicant had assaulted the complainanty Ms. Monica Gomez,
    Mr. Swindell did not object to such statement being a prejudicial,
    inadmissible extraneous offense.
    THE COURT FINDS, based upon Mr. Swindell's own admission,
    the complainant, Ms. Monica Gomez, nor Ms. Sharon Spakes,
    were never interviewed by Mr. Swindell prior to trial.
    THE COURT FINDS, based upon applicant‘s credible affidavit,
    Mr. Swindell was informed of the exculpatory facts known
    by Ms. Spakes, but still failed to interview and/or call
    her as a defense witness.
    THE COURT FINDS, based upon applicant's credible affidavit,
    Mr. Swindell refused to allow applicant to testify in order
    4.
    18.
    19.
    20.
    21.
    22.
    to substantiate his self defense claim, even though applicant
    knew the consequences of him testifying, but still requested
    to do so.
    THE COURT FINDS, although Mr. Swindell raised a self-defense
    theory before the jury/ he failed to provide any bases for .
    the court to grant his request for self-defense instructions
    to the jury by failing to allow applicant to testify.
    THE COURT FINDS, although the prosecutor mentioned the``punishment
    range to the veniremembers during voir dire, the prosecutor,
    nor Mr. Swindell, or the court ever asked if any veniremembers
    could consider the full range of punishment.
    THE COURT FINDS, although the prosecutor mentioned applicant’s
    right not to testify, to the veniremembers, the prosecutor,
    nor Mr. Swindell, or the court asked whether any veniremembers
    would hold applicant's decision not to testify against him:
    THE COURT FINDS, Mr. Swindell did not ask any veniremembers
    whether they would consider a police officer's testimony
    more credible than any other witness due to their status
    as a police officer.
    THE COURT FINDS, the veniremembers were not provided an
    opportunity to voice their views regarding whether, (l)
    they could consider the full range of punishment, (2) they
    would not hold against applicant if he chose not to testify,
    and (3) they would consider an officer's testimony more
    credible due to his status as an officer. The veniremembers
    were not asked to respond, or voice their opinion in regards
    _ to these three guestions. 5{
    APPbICANT’S ACTUAL INNOCENCE CLAIM
    23.
    24.
    25.
    26.
    THE COURT FINDS, prior to trial, Ms- Gomez provided Mr.
    Swindell's investigator with a sworn written affidavit
    asserting that, due to being extremely intoxicated on the
    night of the alleged assault, she did not remember what actually
    happened or how she received her injuries.
    THE COURT FINDS, during trial, however, Ms. Gomez testified
    that her sworm written statement was false, and that she
    had lied to keep applicant from getting into trouble.
    THE COURT FINDS, Ms. Gomez testified that applicant had held
    her down on the living room couch with a knife to her stomach
    and neck.
    THE COURT FINDS, the testimonies of Ms. Gomez, officer Daniel
    Smithy and officer Ruben Coronadon version of events conflict
    within each other, whereas, officer Smith claimed to have
    witnessed applicant pushing Ms. Gomez over the back offa
    couch with one arm on her chest, while holding a knife in
    his right hand, and officer Coronadon claimed to have witnessed
    applicant holding Ms. Gomez.up against the front door, while
    holding a knife in his right hand against the back of Ms.
    Gomez's head. Both officers claimed to have witnessed their
    version of events during the same time period, standing next
    to each other.
    27,
    28.
    29.
    30.
    THE COURT FINDS, although evidence' was presented during
    trial that indicated Ms. Gomez suffered injuries to her face,
    nose, and head, she also testified that during her attempt
    to jump out of their moving vehicle, applicant reached over
    frantically and grabbed her hair, pulling her back into the
    vehicle. lt was indicated there is*a reasonable probability
    Ms. Gomez's injuries occurred from applicant saving her life.
    THE coURT FINDS, although Ms. Donna Garcia testified she
    had witnessed applicant and Ms.-Gomez struggling and fighting
    from her kitchen window, Ms. Garcia did not state she witnessed
    any knife in applicant's hand.'
    THE COURT FlNDS; after trial¢ Ms. Gomez provided applicant's
    appellate attorney with another sworn written affidavit
    similiar in content to her first affidavit, except in her
    second affidavit she asserted that applicant had taken a
    ' knife away from her during the period of time when the police
    officers arrived on the scene and witnessed the incident
    through the living room window.
    THE COURT FINDS, the second and last affidavit provided by
    Ms. Gomez to be credible and considered as newly discovered
    evidence due to reason it was stated for the first time,
    within the second affidavit, that applicant had taken the
    knife away from Ms. Gomez for self defense purposes_ The
    jury was not provided with this exculpatory evidence._
    31. THE COURT FINDS, during the submission
    32.
    INEFE``ECTIVE ASSISTANCE OE`` APPELLA'I'E COUNSEL
    33-
    34.
    35.
    36-
    .for new trial raising an actual innocen
    _the police arrived.
    of applicant's application
    for writ of habeas corpus, he also submitted his Memorandum
    in support thereof, providing his voluntary affidavit aS
    Exhibit-A. Applicant's affidavit was not sworn to, nor signed
    and dated.
    THB COURT FINDS, applicant filed a Moti
    Record with a sworn to, signed and dated affidavit,
    is identical to his original affidavlt.
    his motion and supplemented the records
    signed and dated affidavit, which the C
    THE COURT FINDS, applicant was represen
    by ERlc coATs .
    THE COURT FINDS, appellate counsel file
    to Ms. Gomez's post-trial written state
    could not remember what actually occurr
    question do to her being extremely into
    applicant was trying to take the knife
    THE COURT FINDS, this court had no juri
    the untimely filed motion for new trial
    not granting review and/or an evidentia
    THB COURT FINDS, had a timely motion fo
    to the trial court, raising an actual i
    8.
    on to Supplement the
    which
    The Court granted
    with his sworn to,
    ourt holds credible.
    ted on direct appeal
    d an untimely motion
    ce claim in regards
    ment, asserting she
    ed on the night in
    but believes
    xicated,
    away from her when
    sdiction to entertain
    and did not err by
    ry hearing.
    r new trial been presented
    inocence claim based
    l. The claims asserted by applicant pretai
    on Ms.
    VIRGIL V. DRETKE, 
    446 F.3d 598
    (Sth Cir
    Gomez's post-trial affidavitl t
    granted a requested evidentiary hearir
    whereas, Ms. Gomez's post-trial affida
    discovered facts which were not preser
    Ms. Gomez's pretrial affidavit. Namely
    had taken the knife away from her at t
    on the scene. Such self-defense assert
    during the trial on the merits.
    CONCLUSIONS OF LAW
    assistance of trial counsel for failure
    or strike veniremembers, DUGGAN, SHARP,
    be reviewed by the standards enunciated
    
    466 U.S. 648
    (1984), whereaS/
    state's case to a meaningful adversary
    In the alternative, even if applicant's
    assistance of counsel for failure to ch
    strike veniremembers DUGGAN, SHARP, and
    by the standards enunicated in STRICKLA
    U.S. 668 (1984), which requires a revie
    whether trial counsel's representation:
    objective standard of reasonableness: a
    applicant was prejudiced by trial couns
    representation} prejudice is presummed
    to object to the sitting of at least th
    UNITED STATES V. MARINEZ-SABAZORL 528 U
    9.
    counsel f
    he court would had
    g/review of said motion,
    vit asserted newly
    ted at trial, or in
    , she believed applicant
    he time police arrived
    ions were not presented
    ning to ineffective
    to challenge for cause
    and/or THAXTON, must
    in U.S. V. CRONIC,
    ailed to subject the
    testing process.
    claim of ineffective
    allenge for cause and/or
    or THAXTON, is reviewed
    ND V. WASHINGTON, 466
    wing court to determine
    (i) fell below an
    nd, if so, (ii) whether
    al‘s deficient
    for counsel's failure
    ree bias jurors.
    .S. 305 (ZOOO);
    . 2006): and
    GARCIA V. STATE, 919 S.W.Zd 370, 389 (Te
    {The 6th amendment guarantees criminal d
    'by an impartial jury. The bias or prejud
    juror is endugh to violate that guarante
    presence of a biased juror cannot be har
    requires a new trial without a showing o
    THE COURT FINDS, based upon Mr. Swindell
    he explained to veniremembers, DUGGAN an
    was required to prove each and every elem
    offense beyond a reasonable doubtl howey
    they would still find applicant guilty o
    of proof, by "clear and convincing evide
    THE COURT FINDS, based upon Mr. Swindell
    he was required to challenge for causes
    but failed to do s
    DUGGAN and MS. SHARP/
    jurors expressed their opinions or belie
    x.Crim.App..lQQ€)
    efendants a verdict
    ice of even a single
    e. Accordinglv, the
    The error
    mless-
    f actual prejudice)
    's own admission,
    d SHARP that the state
    ent of the charged
    er. both jurors stated
    n the lesser burden
    ice."
    's own admissionl
    and/or strike Mr.
    D, even after both
    fs, preventing and/or
    substantially impairing them from carring out their oaths
    and instructions in accordance with the
    THB-COURT FINDS, for the above stated re
    rendered ineffective assistance and'prej
    Thus, a new trial should be granted.
    Deficient representation, alone, does no
    assistance of counsel under 
    STRICKLAND, supra
    .,
    Law.
    asonl Mr. Swindell
    ldice is presumed.
    t constitute ineffective
    and to prevail
    an applicant must also demonstrate prejudice by showing a
    reasonable probability that, but for counsel's errors,
    the
    result of the trial proceedings would have been different.
    lO.
    To prevail on a post-conviction writ of
    applicant bears the burden of proving, k
    ot the evidence, not only that his trial
    was deficient,
    ‘habeas corpus, the
    y a preponderance
    counsel's performance
    but that there is a reasonable probability
    that the outcome of the trial and/or appellate proceeding
    would nave been different had trial cour
    not been oeticient. Ex PARTE cHANDLER, J
    (Tex.Crim-App. 2005).
    sel's performance
    82 S.W.$d 350, 353
    Applicant has clearly shown deficient and prejudicial performance
    based on the following ineffective assistance of trial and/or
    appellate counsel:
    Trial counsel failed to challenge for ca
    veniremembers; DUGGAN, SHARP, and THAXTC
    prejudice against applicant and/or towar
    use and/or strike
    N, who revealed bias/_
    ds the State's required
    burden of proof, which the defense is entitled to rely upon;
    Trial counsel failed to ask proper quest
    dire to determine use of peremptory cha]
    prejudicial,
    incapable and/or unfit venl
    ions during voir
    lenges upon bias/
    remembers;
    Trial counsel failed to make a timely and proper objection
    to inadmissible extraneous offense statement made by a state
    witness, Ms. Donna Garcia;
    Trial counsel failed to allow applicant
    own behalf, despite applicant's request
    ll.
    to testify on his
    to do so;
    e. Trial counsel failed to investigate and/or interview witnesses
    f.
    9.
    10. THE coURT F;NDS and REcoMMENDs, appliea
    THEREFORE IT IS THE ORDER OF THIS COURT THAT:
    a.
    C.
    Appellate counsel failed to timely file
    ``for new trial.
    -record of this court1
    ``That the preparation of these matters be
    for defense and/or mitigating purposes;
    THE COURT FINDS, applicant has clearly s
    that trial and/or
    were not engaged in reasonable trial str
    of the court stated above.
    6th and 14th amendment right to effecti\
    and that his conviction was unlawfully c
    and foregoing reasons, applicant should
    custody of Randall County, Texas, Sherif
    the allegations of the charged offense,
    a meaningful motion
    hown, based upon the
    appellate counsel§
    ategy by the findings
    nt was denied his
    e assistance of counsel
    >btained. For the above
    be released into the
    f Department to answer
    either by a new trial,
    or an order of acquittal due to his actual innocence claim,
    The Clerk of the Court certify all pleadings and affidavits
    and supporting transcripts filed in this matter and prepare
    a record for forwarding to the Clerk of
    Appeals;
    That the Official Court Reporter of the
    the Court of Criminal
    Court prepare a record’
    of the proceedings in this matter for forwarding to the Clerk
    of the Court of Criminal Appeals, and
    12.
    9 at COUDCY @XQGHSG.
    lt is considered recommendation of this court that applicant's
    request for relief be in all things GRANTEJ.
    £).»
    cl
    b.(1
    0
    |_.``.
    b l
    C l
    y_
    Ll'l
    o
    Signed on this
    Presiding Judge
    ZSlst District Court
    Randall County, Texas.
    13.
    

Document Info

Docket Number: WR-83,486-01

Filed Date: 7/8/2015

Precedential Status: Precedential

Modified Date: 9/29/2016