Tamez, Javier ( 2015 )


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  •                                                                   WR-83,312-01
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/25/2015 4:14:48 PM
    Accepted 5/26/2015 8:08:03 AM
    ABEL ACOSTA
    CLERK
    CAUSE NO. WR-83,312-01
    RECEIVED
    COURT OF CRIMINAL APPEALS
    IN THE                          5/26/2015
    ABEL ACOSTA, CLERK
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    ____________________________________________________________
    EX PARTE JAVIER TAMEZ,
    APPLICANT
    __________________________________________________________
    ON APPLICATION FOR AN ARTICLE 11.07 WRIT OF HABEAS
    CORPUS IN CAUSE NO. 08-CR-0741-D IN THE 105TH JUDICIAL
    DISTRICT COURT, NUECES COUNTY, TEXAS
    _____________________________________________________________
    APPLICANT’S OBJECTIONS TO TRIAL COURT’S
    FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
    RECOMMENDATION PURSUANT TO RULE 73.4
    OF THE TEXAS RULES OF APPELLATE PROCEDURE
    _____________________________________________________________
    ALFREDO MORALES, JR.
    ATTORNEY AT LAW
    P.O. BOX 52942
    MCALLEN, TX 78505-2942
    (956) 536-8800 BUS
    (956) 381-4269 FAX
    EMAIL: amjr700@gmail.com
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    Applicant JAVIER TAMEZ files his objections to the trial court’s
    findings of fact, conclusions of law, and recommendation, and in support
    thereof would show the court as follows:
    I.
    PRELIMINARY STATEMENT
    The trial court entered its findings on May 5, 2015. The trial court clerk
    certified the findings and entered them into the minutes of the court on May
    13, 2015. On that same date, the findings were mailed to the undersigned
    counsel. (The District Clerk’s Office envelope is postmarked May 13,
    2015.) As an officer of the court, counsel would represent that he received
    the findings on May 16, 2015. Rule 73.4 of the Texas Rules of Appellate
    Procedure allows counsel ten days to file objections to the trial court’s
    findings. Accordingly, counsel is filing his objections within the time frame
    provided by the rules.
    The Applicant objects to all of the trial court’s conclusions that trial
    counsel rendered the requisite effective assistance of counsel in this case. It
    is clear that the trial court did not conduct a careful, studied examination of
    the Applicant’s writ, the affidavits, or the record in this case. The trial court
    relied exclusively on the State’s response, even adopting the State’s
    proposed findings and conclusions verbatim, without any independent
    analysis of its own.
    Accordingly, the Applicant urges his objections as follows:
    II.
    OBJECTION 1:
    TRIAL COUNSEL FAILED OR PRESERVE THE APPLICANT’S
    RIGHT TO APPEAL BECAUSE HE DID NOT FOLLOW
    THE MANDATES SET FORTH UNDER JONES v. STATE
    While trial counsel’s affidavit states that he consulted with the Applicant
    about his post-conviction rights, including the right to file an appeal, he
    failed to take the appropriate the two-step process outlined in Jones v. State,
    
    98 S.W.3d 700
    (Tex. Crim. App. 2003): one, file a Pro Se Notice of Appeal
    and file a contemporaneous Motion to Withdraw as counsel of record.
    That he (trail counsel) may have advised against filing an appeal is
    immaterial and not controlling. Trial counsel knew Applicant wanted to
    appeal, but instead of assisting him in providing the appropriate notice to the
    court, he did nothing, referring him to an appellate lawyer instead. The trial
    lawyer’s responsibility as trial counsel did not end upon the conclusion of
    the revocation hearing. Rather, it continued for the next thirty days during
    which time he had to follow the procedure in Jones v. State.
    Trial counsel rendered ineffective assistance of counsel in this regard,
    and the Applicant is entitled to an out-of-time appeal.
    III.
    OBJECTION 2:
    TRAIL COUNSEL FAILED TO PRESENT EVIDENCE AND ARGUE
    THAT THE ALLEGED VICTIM, NOT APPLICANT, WAS THE ONE
    WHO HAD INITIATED THE CONTACTS
    The record clearly substantiates the Applicant’s position that he merely
    responded her constant texts. In fact, the evidence demonstrated that the
    alleged victim had, in fact, deleted some of the texts so as to give the
    appearance that it was he who, at times, was initiating contact. The State’s
    attorney even conceded this point in final argument and, even then,
    Applicant’s trial counsel did not make any argument to the trial court that
    the statue required “initiation” on the part of the Applicant. The evidence
    was insufficient to have sustained a violation of his terms and conditions of
    his probation. More importantly, trial counsel should have argued that,
    legally, the prosecution had no case, because at the time of the hearing in
    question, there was no legal precedent to show that text messaging was an
    “electronic communication” within the meaning of the statute. It was not
    until mid-2014, that an appeals court held, for the first time, that texting
    could be considered an “electronic communication” under the statute.
    Perone v. State, No. 14-12-00969-CR (Tex. App. – Houston [14th Dist.]
    2014). Again, however, in light of the specific wording of the statute,
    when taken together with the definition of electronic communications, the
    Appeal’s court’s decision is questionable.
    Trial counsel rendered ineffective assistance of counsel on this point.
    IV.
    OBJECTION 3:
    TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE ADVISED
    APPLICANT TO ENTER PLEAS OF “TRUE” TO THE STATE’S
    ALLEGATIONS OF NON-PAYMENT OF FEES
    Prior to beginning the revocation hearing, trial counsel advised and
    allowed Applicant to enter pleas of “true” to the allegations that he was
    in arrears in his monthly supervisory fees, court appointed fees, electronic
    home monitoring fees, and child support payments.
    Suffice it to say, that Applicant had a legal defense to all of these
    allegations, given that during the relevant time period when they were due,
    the Applicant was incarcerated, unemployed, or sporadically working odd
    jobs. More importantly, the State, not the Applicant, had the burden to show
    that he had willfully failed to make all these payments. (See legal
    authorities cited in Applicant’s writ.)
    Trial counsel rendered ineffective assistance of counsel on this point.
    V.
    OBJECTION 4:
    TRIAL COUNSEL FAILED TO OBJECT OT THE STATE’S EXHIBIT
    WHICH CONTAINED THE OFFENDING TEXT MESSAGES
    The State presented only one exhibit to support its allegation that
    Applicant had contacted the alleged victim in violation of the statute and the
    terms and conditions of his probation. State’s counsel, without setting the
    proper predicate, merely tendered the exhibit to the witness, who
    immediately began testifying as to its contents. Trial counsel did not object,
    and all of its contents (i.e., numerous texts) came into evidence. The fact
    that the exhibit could have been properly authenticated and formally
    introduced as evidence, as the State suggests, is of no moment. It was
    considered hearsay evidence until such time as all of the formalities were
    met. The Texas Rules of Evidence apply at revocation hearings. Ex Parte
    Doan, 
    369 S.W.3d 205
    (Tex. Crim. App. 2012).
    Trial counsel rendered ineffective assistance of counsel on this point.
    VI.
    OBJECTION 5:
    TRIAL COUNSEL FAILED TO REQUEST FOR A CONTINUANCE
    IN ORDER TO ADEQUATELY PREPARE FOR THE HEARING
    The record establishes that trial counsel was not fully prepared to contest
    the allegations in the State’s motion to revoke. Even the trial court,
    recognizing that counsel was not totally prepared, allowed counsel to review
    the State’s exhibit by calling for a brief recess in the proceedings. By having
    requested a continuance, trial counsel would have been able to secure the
    witnesses he needed to cast doubt on the alleged victim’s credibility, and
    would have allowed him time to prepare and present his own exhibit, which
    he told the court that he had some evidence he wanted to tender for the
    court’s consideration, but candidly admitted that it was not in “proper
    format.”
    Trial counsel rendered ineffective assistance of counsel on this point.
    VII.
    OBJECTION 6:
    TRIAL COUNSEL FAILD TO PRESERVE CERTAIN ISSUES FOR
    APPELLATE REVIEW
    Because Applicant had not yet been convicted on the underlying offense
    because of his deferred adjudicated status, trial counsel could have filed a
    pre-trial writ of habeas corpus in order to challenge the Applicant’s
    contentions that his guilty plea was involuntary and that his sentence for the
    stated offense was harsh and disproportionate under this court’s authority in
    Nix v. State, 
    65 S.W.3d 664
    (Tex. Crim. App. 2001) and Jordan v. State, 
    54 S.W.3d 3
    (Tex. Crim. App. 2001). Trial counsel failed to preserve these
    issues for appellate review, and Applicant is foreclosed from urging these
    two particular points, even if he were to be granted an out-of-time appeal.
    Trial counsel rendered ineffective assistance of counsel on this point.
    VIII.
    OBJECTION 7:
    TRIAL COUNSEL FAILED TO OBJECT TO EXTRANEOUS
    OFFENSES ALLUDED TO BY THE ALLEGED VICTIM
    At the punishment phase of the hearing, the alleged victim referred to
    several extraneous events about abuse she had suffered at the hands of the
    Applicant: punching her during their arguments; demanding sex in
    exchange for child support; and threatening her with physical harm by one
    of Applicant’s family members, who, according to her, was a member of the
    Texas Syndicate, a violent Texas prison gang.
    Since all of these matters were nothing more than character-conformity
    evidence, all of these incidents were objectionable under the applicable rules
    of evidence, but trial counsel made no effort to levy any type of objection.
    The State’s contention that this evidence was permissible under Article
    37.07, and not Rule 404 of the rules of evidence, is without merit. A
    revocation proceeding is civil in nature and is not a criminal trial. Weed v.
    State, 
    891 S.W.2d 22
    (Tex. App. – Ft. Worth 1995). Therefore, the Texas
    Code of Criminal Code provisions do not control. Moreover, contrary to the
    State’s allegation that Rule 404 is limited to guilt/innocence stage is likewise
    without legal merit. The language of Rule 404 imposes no such restriction
    or limitation.
    Trial counsel rendered ineffective assistance on this point.
    IX.
    CONCLUSION
    For the forgoing reasons, the trial court’s findings that trial counsel did
    not render ineffective assistance of counsel is not supported by the record or
    by trial counsel’s affidavit.
    X.
    PRAYER
    Applicant respectfully requests that this court find that the trial court’s
    findings and conclusions are erroneous, both in fact and law, and that his
    trial counsel rendered ineffective assistance of counsel. In the event the
    court is unable to make a decision with the information forwarded by the
    trial court, then the Applicant would request that the court remand the writ to
    the trial court for an evidentiary hearing, so that the Applicant is allowed to
    more fully develop the allegations, and this court can then make the
    appropriate disposition of the Applicant’s requested relief.
    Respectfully Submitted,
    Alfredo Morales, Jr.
    Attorney at Law
    P. O. BOX 52942
    McAllen, TX 78505-2942
    (956) 536-8800 TEL
    (956) 381-4269 FAX
    Email: amjr700@gmail.com
    /S/ Alfredo Morales, Jr.
    __________________________
    ALFREDO MORALES, JR.
    STATE BAR NO. 14417290
    CERTIFICATE OF COMPLIANCE
    In accordance with Rule 9.4(i)(3) of the Texas Rules of Appellate
    Procedure, and Ex Parte Walton, 
    422 S.W.3d 720
    (Tex. Crim. App.
    2014), I, Alfredo Morales, Jr., court-appointed counsel of record for
    Applicant, hereby certify that, relying on the word count of the computer
    program used to prepare the Applicant’s objections herein, the document
    contains 1,782 words.
    /S/ Alfredo Morales, Jr.
    __________________________
    ALFREDO MORALES, JR.
    CERTIFICATE OF SERVICE
    I, Alfredo Morales, Jr., hereby certify that a true and correct copy of the
    Applicant’s objections were sent via regular mail to the following respective
    counsel of record on this the 25th day of May, 2015:
    Les Cassidy
    Attorney at Law
    814 Leopard Street
    Corpus Christi, TX 78401
    (Applicant’s trial counsel)
    James Odell
    Asst. Dist. Atty.
    Nueces County District Attorney’s Office
    901 Leopard Street, Room 206
    Corpus Christi, TX 78401
    /S/ Alfredo Morales, Jr.
    __________________________
    ALFREDO MORALES, JR.
    

Document Info

Docket Number: WR-83,312-01

Filed Date: 5/26/2015

Precedential Status: Precedential

Modified Date: 9/29/2016