Hinojosa, James ( 2015 )

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To Clerk of Court of June, 2015
Criminal Appeals of Texas `` '
P.O. Box 12308, Capitol Station
Austin, Texas 78711
' RE: Petitioner, Response to State'S Supplemental Answer to Applicant's
Application for Writ of Habeas Corpus, Requesting for Out-of-Time-Appeal.
Trial No. 11-CR-1517-G, James Hinojosa VS. The State of Texas.
.Dear Clerk,
En¢iosed*, you will find a copy of the above metioned document, Please
file this and bring it to the attention to court, copies have been forwarded
by U.S. Mail to all parties, Also, could you please Send me notice of filing
with Date-Stamp on this letter and return a file copy to me at my address'
below.
THANK YOU FOR YOUR VERY KlND CONSIDERATION AND EXPEDITIOUS REPLY
CONCERNING THIS MATTER.
Si cerely,
cc/File
JH/jm 4 ; \Sgnegbginojoéa``_~’)
319th`` Judi¢ial District_court, TDcJ-ID# 1807828
District Attorney'S 0ffice ' Coffield Unit
Nueces Co. Courthouse 2661 F``M 2054
Tennessee Colony, Texas 75884
RECEIVED IN .
couRT oF chmNALAPPEALs
JUN 29 2015
Abe§Acosia,Clerk
IN THE COURT OF CRIMINAL APPEALS
lN
AUSTlN, TEXAS
Writ No.
Trial No.ll-CR-1517-G
EX PARTE
JAMES HINOJOSA
IN THE DlSTRlCT COURT
3l9th JUDICIAL DlSTRlCT
NUECES COUNTY, TEXAS
(/.``/3(/.``/).
Petitioner, Response to State's Supplemental Answer to Applicant's
Application for Writ of Habeas Corpus, Requesting for Out-of-Time-Appeal.
To The Honorable Justices of The Court of Criminal Appeals.
Now Comes, James Hinojosa, petitioner and submits this said motion in
response to Statels General Denial. The petitioner, Request for Out-of-Time,
Appeal has merit, that would entitle petitioner, to relief.
I.
STATEMENT OF THE CASE
The petitioner entered a plea of not Guilty to the Offense of Aggravated
Kidnapping, and the Jury found the Defendant Guilty, and Sentenced to Fifteen
years Confinement to Texas Department of Criminal Justice Institutional
Division.
Il.
REASONS FOR NOT TO DENY THIS WRIT FOR AND OUT;OF-TlME-APPEAL
The State has failed to offer any evidence that the petitioner, Knowingly
and Voluntarily Waived his rights to Appeal. See: The attached State's Exhibit
(1), The Judgment will show that their is no Signed Waiver of Appeal.
On page 4 of the State's supplemental answer it stated that applicant,
lacks credibility, and that he waited three years to bring this claim to the
court.
On the 8th of February, 2013 , The applicant send a letter to the
Honorable Judge , Thomas Greenwell, of the 319th District Court, the Judge
FAX'S the letter to Trial Attorney Mr. Mark Gonzalez , 4/5/13, See; The
attached Exhibit (2) The Letter send to the Judge. The petitioner did make an
inquiry to the status of his appeal. See: The attached Exhibit (3) State's
Motion to Compel Applicant's Trial Counsel to Respond and to set Deadline for
receipt of Affidavit., See: attached Exhibit (h) Mark Gonzalez,Affidavit
which states that he consulted and advised the petitioner of the process of a
Request for an out of time appeal ,Why would Trial Attorney suggest to the
petitioner to file for out of time appeal, so why would Trial Attorney suggest
such a thinggwhy not give notice of appeal.
lll.
Exhibit (5) Motion To Supplement and Amend The Original Application
For Writ of Habeas Corpus, Requesting for Out-of-Time-Appeal.
Supplement and amend Ground One: Trial Attorney failed to render effective
assistance of counsel by failure to give notice to Pursue an Appeal.
Supplement and amend Ground Two: The Trial Court Failed to protect the
defendant right to meaningful and Full Direct Appellate Review which Denied
him Access to Courts.
EVIDENTIARY HEARING IS NEEDED
This case raise the question of the right to appeal, evidentiary hearing
is necessary in addressing thess issues if he was or not admonish by the court
of his right to appeal, and if counsel gave notice of appeal or not, also
if the petitioner Signed a Waiver not to Appeal.
CONCLUSION
Wherefor Petitioner, summits his Response to State's Supplemental Answer
to Applicant's Application for Writ of Habeas Corpus, Requesting for Out-of-
Time-Appeal, and Decide the issuse in a just and fair manner and Grant the
petitioner such relief the Law Permits, In the Interest of Justice.
R pectfully Submitted
¢;,'
etitioner, Pro.Se
James Hinojosa
TDCJ-ID# 1807828
Coffield Unit
2661 F M 2054
Tennessee Colony,Texas 75884
INMATE'S DECLARATION
I, James Hinojosa, am the petitioner and being presently incarcerated,
at the Coffield Unit, 2661 F M 2054, Tennessee Colony,Texas 75884, declare
under penalty of perjury that according to my belief, the facts stated in
this Response to State's Supplemental Answer to Applicant's Application for
Writ of Habeas Corpus, Requesting for Out-of-Time-Appeal, are true and correct
to the best of my knowledge.
Sig ed on l idune,ZOlS
§
ignature of Petitioner.'t..
CERTIFICATE OF SERVICE
This is to certify that on _lfi_dune, 2015, that a true and correct copy
of this Response to Supplemental Answer to Applicant's Application for Writ of
Habeas Corpus, has been mail to Court of Criminal Appeals in Austin,Texas and
319th Judicial District Court, also the District Att rney's Office Nueces Co.
Courthouse, By U.S. Mail postage paid. ;; §§ `` ‘
gégnaiure of Petition§?__“/I``
STATE’S
EXH|B|T
1
t,¢ms.+ 1
CASE NO. 11-_CR-lBl7-G CoUNT SINGLE
INCIDENT No./TRN: 9192800823
THE STATE oF TEXAS § IN'THE 319TH DISTRICT
v. 7 § CoURi‘
JAMES HINoJosA § NUECES CoUNTY, 'rExAs
sure ID No.: TX06185441 §
JUDGMENT OF CONVICTION BY JURY ``
Judge Presidmg: . §§E§};£VEML‘SL F' §;::r‘;‘;§gme“t 8/1/20 12
Ammey for state JoE MIKE PENA ' §:*f‘;“§§’nf‘j’ MARK GQNZALEZ
Ofi``ense for which Defendant Convicted:
AGGRAVATED KIDNAPPING
Charging Instn'ument: " Statute for 'OHense:
, INDICTMENT 20.04 Penal Co'de
Date of Offense:
`` 5/4/2011
Deg;ee of Offense: Plea to Offense:
lST DEGREE FELONY NOT GUILTY
Verdic``t of Jpg: ' Findings on Deadly Weapon:
GUILTY ' . ~ YES, A FIREARM
Plea to 1st Enliancement Plea to 2mi Enhancement/Habitu
Parag'raph: - TRUE Paragraph: - 7 N/A
' Findings on 1st Enhancement Findings on 2“d
Paragraph: TRUE Enhancemeni/Habitual Paragraph: N/A
Punished Assessed by: Date Sentence Imposed: Date Sentence to Commence:
JURY 8/1/2012 8/1/2012
P“”ishme”* a”f‘ Pla°e FIFTEEN (15) YEARS INsTITUTIoNAL DIvIsloN, TDCJ '
of Coniinement.
THIs sEN'rENcE sHALL RuN CONCURRENTLYWITH 11-CR-3354-G, 11-CR-3219-G OF NUECES
COUNTY, TEXAS, AND FEDERAL CASE NO. 2:120R00163-001.
E] sEN'rENcE or coNFINEMEN'r sUsPENDED, DEFENDANT PLACED 0N comleer sUPEvasloN FOR N/A .
Fine: Court Costs: Restituticn: Restitution Payable to:
$ 2,000.00. $ '~\ LO\-\ ,OO s N/A ' l:l VIcTIM (see below) ij AGENcY/AGENT (b) of the Texas Code of_Criminal »Procedure, and flies its _Motion to
'Com_-pel Applicantis Trial Counsel to'Respond-and to Set _a Deadline for Receipt of
counsel’s Affidavit in the above-styled application for Writ of habeas corpus. -In "
support thereof, the_State would show the following:
The Applicant,' James Hinojosa, filed the present application Which Was -_'
received b``y the State on December 15, 2014' alleging ineffective assistance of
counsel, Mark Gonzalez. tHabeas‘ Application. The State responded that it
v needed and had requested an affidavit from counsel_addressing .the Applicant’sv '
t claims.- State’ s Answer. t
l l On December 15, 2014, the State spoke With Mark Gonzalez and asked him
`` -to provide an affidavit addressing the Applicant’ s claims. Mr. Gonzalez said he
Would provide that affidavit The State left copies of the application as Well as an-
interrogatory listing the lssues that required his response at the front desk of the
' -Nueces County District Attorney-’ s Offlce.
On December 29, 2014 the State spoke with Mr. Gonzalez who said that he
had forgotten to do the affidavit because of the holidays. Mr.- Gonzalez promised
that he would submit the affidavit by th_e end of the week. _
On January 6, 2015 the trial court entered an Order Designating Issues
(ODI) to be resolved, namely whether the Applicant had presented a cognizable
and meritorious claim of ineffective assistance of counsel. Order D.esigna_ting
Issues. This ODI suspended all deadlines to allow time for submission of
n counsel’s affidavit which is vital to the disposition of the Applicant’ s claims.
On January 8, 2015, the State attempted to contact Mr. Gonzalez to no avail.
y 4 The State learned from a prosecutor that he would be in the 319th District Court at
1:30 PM. The State hand- delivered the application materials and interrogatories to k
Mr. Gonzalez in the 319th District Court. l ' v
On April 27, 2015, the State attempted _to contact Mr. Gonzalez to no avail.
t The State left a message for'him. at his answering service.
7 l On April 2'8, 2'015, the State attempted to contact Mr. Gonzalez to no avail.
The State left a message for him at his answering service f '
On May 5, 20l5, the State spoke to Mr. Gonzalez and informed him that it
had been several months since he promised to provide his affidavit and.also that
the deadline for the Court to resolve all fact issues was only weeks away. Mr.
Qonzalez said that he is in trial in the 347th District _Court all week so he will be at - v
the courthouse and he will file that affidavit by Friday, May 8, 2015. 1
-O_n May 12, 2015, the State spoke with Mark Gonzalez who promised that
he would turn the affidavit in tomorrow, May l3, 2015-l l
On May l3, 2015, the State attempted to contact Mr. Gonzalez to no avail.
The State left a message for him at his answering service.
On May 14, 2015, the State attempted to contact Mr Gonzalez to'no avail.
Counsel’s number said his mailbox was full and could not take messages.
2
On May 15, 2015, the State``attempted to contact Mr. Gonza``lez to no.. avail. -
The State left a message on his voicemail telling him that it was filing the present
t motion, that it had been several months since he promised to provide an affidavit,
and that we are out of time. _The State also left a message at his answering service.
_ The State is unable to adequately respond _to the Applicant’s application
' without an affidavit from'Mark Gonzalez responding to-the Applicant’s claims of
ineffective assistance The State has'made all efforts to secure a response from
counsel, but it is now obvious that counsel does not intend to file his affidavit
despite his repeated promises to do so. It has been almost 6 months since counsel
promised to deliver the affidavit Because of counsel’s delay, the Court now only
has until June 15, 2015, for counsel to have filed his affidavit, for the State to draft
'_ l its Supplemental Answer utilizing that affidavit and making its recommendation to
the Court, for the Court to resolve all fact issues, make its findings of fact
conclusions of law and recommendations, and to deliver all materials to the Texas
Court of Criminal_ Appeals for final disposition.- An order from the Court is needed
to compel the submission of the needed affidavit by date certain, and the 'Sltate now
asks that the Court order Mr. Gonzalez to_ respond.
Pra er
Fort_he foregoing reasons, the State respectfully requests that the trial court:
(l_) enter an order compelling attorney Mark Gonzalez to respond to the
Applicant"s ineffective assistance claims; and (2) set a deadline for the submission
_of his affidavit This motion is not sought for the purposes of delay but so that the
Applicant’ s trial attorney may have the opportunity to respond to the Applicant’ s
3 _
allegations and thereby enable the State
ineffective assistance of counsel.' . .
to answer the Applicant_’s claims of
k Respectfully'submitted,' l
//7%
J ames Odell_ .
State Bar No.v 24063601``
As"si_stant District Attomey
» v105th Judicial District of Texas
`` erE sTATE oF TEXAs,
' CoUNTY oF NUECES.
901 Leopard,-Room 206 , -
Corpus Christi, Texas 78401 ``
Telephone: (361) 888-041_0
Facsimile: (361)=888~0399_ _
Email: james.odell@nuecesco.com
AT_ToRNEY FoR THE STATE
_ BEFORE _ME, the undersigned authority,' on this day personally appeared
J ames Odel'l who, being by me duly sworn, .did on his oath depose and say that he
is an attorney for thev State in_ the above-styled"proceedings, that'he has read the
foregoing vState’s Motion, and that the facts stated therein are true and correct to
_the best of his knowledge and belief,
James OLdél '\
sUBsCRlBED AND sWoRN ro BEFoRE ME On the L;j’~d``ayjof May, 2015, _ _
lDA G. RANGEL
_~‘ e.-" '-\c> '-. .
_s 1_ Notary Pubhc
-._ z ,~ sTATE 0F TExAs
"Zi',¥w€t\*”¢ My Comm. Exp. _10~25-2016
`` §
Not_ary Public, State of Texas
cERTIFicATE oF_ sERvIcE
l hereby certify that a courtesy copy of the foregoing 'State’s' Motion was
delivered to support staff this § day of May, 2015, to be mailed to the Applicant
pro ``se: * ``
James Hinojosa _'
TDCJ ID # 1807828
' H. H. Coffield Unit
, 2661 FM 2054 t
' Tennessee Colony,-TX 75884 1
Via First Class``U.S. Mail »
Jamesf)dell
- sTATE's
Exuiarr '
iE><\-tibi'i Ll
AFFIDAVIT OF MARK A. GONZALEZ
MAY 27 2015
STATE OF TEXAS §
§ v D NUECES couer
lSTmcr ATTo '
COUNTY OF NUECES § “NEY S OFF|CE
MARK A. GONZALEZ, appeared in person before me today and stated under oath:
"My name is MARK A. GONZALEZ, I am above the age of eighteen years and I am fully
competent to make this affidavit
On Cause No. 11-CR-1517'-G; State of Texas vs. ]am-es Hinojosa; by Signature below I
MARK A. GONZALEZ state that I consulted and advised Mr. Hinojosa the process of a Request for
an out of time appeal and provided information With regards to the potential witness Jerry
Winterroth:
o I consulted with Mr. Hinojosa the meaning and effect of the judgment rendered by the
court;
I informed Mr. Hinojosa his right to appeal the judgment;
1 informed Mr. Hinojosa the process in filing an appeal and the importance of filing
the notice in a timely manner;
0 Mr. Winterroth was available to testify;
Mr. Winterroth’s testimony would not have been beneficial to the defense in this
case;
Mr. Winterroth’s testimony would have been detrimental to the defense of this case.
1 further state that Jerry Winterroth was a co-defendant and by law I could not call him as a
1
witness to testify because he would have plead his rights to the Fifth (5"‘) Amendment.
The facts stated in this affidavit are within my personal knowledge and are true and correct.
…»DM/
MARKA.\G€SNZALEZ y A
SUBSCRIBED AND SWORN TO BEFORE ME by the said MARK A. GONZALEZ, on
this the 214 day of (MC\A , 2015, to certify which witness my hand and seal of
tro §§
Notary Public, in and for
office.
VELMA SANTOS
My Commission Ex'pi_res
Fenmary 23 2018 The State of Texas
Exhbt 5
ll-CR-1517-G
C/``./?
EX PARTE IN THE DISTRICT COURT
JAMES HINOJOSA n 3l9th JUDICIAL DISTRICT
!£/J(/'_/J
NUECES COUNTY,TEXAS
.;.; ",: ..;_ M .»,»`` ." v “‘»;"..;:'..;: ``»»'€; ~;:,; ;,: .,; .»;.;", ',. ;.; ",: n '..;.:;``: ",``_,:>:;:,,.;",``,`` , ,.i ;:_.:, “..:.~.``,.``.``,_AM.,_A( ._.;>:a;',..;~ .: '5'.:," ,-.,<.1:~::.::.__,'..';`` .:'.'.~'.\ ,~.:
Petitioner, Motion To Supplement and Amend The Original Applicat1on For
Writ of Habeas Corpus, Requesting for Out- -of- -Time-Appeal. '
To The Honorable Court of 319th Judicial District.
Now Comes, James Hinojosa, petitioner and submits this motion to supple+
ment and amend the original application for_writ of habeas corpus,-requesting
for Out-of-Time-Appeal.
I.
STATEMENT OF THE CASE
The petitioner entered a plea of not Guilty to the Offense of Aggravated
Kidnapping, and the Jury found the Defendant Guilty, and Sentenced to Fifteen
years Confinement to Texas Department of Criminal Justice Institutional l
Division. ``
SUPPLEMENT AND AMEND GROUND ONE:
Trial Attorney failed to render effective assistance counsel by failure
to give notice to Pursue an Appeal. c
FACTS sUPPoRTING GROUND ost
The petitioner will explained and show why,'petitioner, should be allowed.
for Out-of-Time-Appeal. The petitioner is layman of the Law and can't be
held to the same standard's as licensed attorney: Even though a defendant
who has pleaded not guilty has an absolute right to appeal under Article
AA.OZ, Texas Code of Criminal Procedure, 'Counsel, whether retained or
appointed he has the responsibility to make sure that the defendant is aware
of his appellate rights.
GROUND ONE CONTINUES:
ln our adversary system of Justice, the Lawyers and Judges, by the very
' nature of their duties, find daily partnership in this quest for Justice. lt
1 is their joint professional responsibilities to see that an orderly appellate
process is achieved. No accused should be denied his right of appeal, Justice
requlres that the exerclse of h1s right o§ appeal must be held within frame _S;rm:
work of the Rules of Appellate Procedure. , See: Morris Vs. U. S. 503 F. Zd. 457,
458, 459 ( 5th.C1r.1974 ), stating that a direct appeal from a criminal
conviction is a matter of right.
The court reporter's records should so reflect; If Trial Attorney gave
notice of appeal in open court or not. See: Chapman Vs. U.S. 469 F.Zd.634-(5th '_
Cir.1972). The Court Ordered a hearing to see if the attorney had abandoned
the defendant's appeal or neglected to inform the defendant that he had a
right to appeal.
SUPPLEMENT AND AMEND GROUND TWO: _
The Trial Court Failed to protect the defendant right to meaningful and
Full Direct Appellate Review which Denied him Access to Courts,
FACIS ”SUPPORTING G_ROUND Wo:
'"A``criminal'défendant“mmst'not``be``made“to“forfeit"substahtial"légalmrights"``“"
inregard to an appeal. A thorough examination of the court reporter's records
should indicate if the Trial Court Admonish the Defendant of his right to
appeal. Failure to advise you of your right to,appeal, See: Thomas Vs.Betoz
'423 F.Zd.642 (5th.C1r.1970); Ex Parte Axelz 757 S.W.Zd. 369 (Tex.Crim.App.~"
1988). lf you were indigent and had a court-appointed attorney, the attorney
or the Court must advise you of; (1) your right to appeal; (2) the procedure.
and time limits involved; and (3) your right to appointment.of counsel on
appeal if you are indigent. If the court reporter's records show, that he was
'denied, right to appeal, then he is entitled to appropriate relief in this
Habeas Corpus Proceeding.
INMA'I'E' S DECLARATION
I, James Hinojosa, am the petitioner and being presently incarcerated,_
at the Coffield Unit, 2661 FM 2054, Tennessee Colony, Texas v75884, declare
under penalty of perjury that according to my belief, the fact stated in
1~="~"-~‘>\“»'*~'A'th'~i'~'s:~Mot:i”on‘"~To'~"Supp~“l'"emen't“and"§Ame``nd'“'"’l‘t“ré*"©r``i‘g"ina’l:"'App"l``icati"on"``“For-'“_Wfilt``"``"c``)‘f"“':""‘*"``"``”"t'“``“"'“‘”:"'"”,"'" ‘
Habeas Corpus, Requesting for Out-of-Time-Appeal, are true and correct to
the best of my knowledge.
Signed on / February , 2015
Signature of Petitl?)§r ,Pro . Se
CERTIFICATE OF SERVICE
This`` is to certify that on __]i_February,ZOl§, that a true and correct copy
of the Motion To Supplement and Amend The Original ;Application For Writ of
Habeas Corpus, Requesting for Out-of-Time-Appeal,,has been mail to the Clerk
of the District Court of the 319th Judicial District of Nueces County, P.O. 7 v
' ``Box~' 2987-~,~ Corpus ~Ghristi~,~ Tx‘ '7~8403~.`` 'By "U'.S'. "Ma'i‘l~ postage "paidz ' ' j "" ' "" - """ 1 ' ' '
Resectfully Submitted
'\
_ ``_¢ .
_, " *__ ' .
' §titioner, Pro,Se
EVIDENTIARY HEARING IS NEEDED
"Ihis case raise the question of the right to appeal, evidentiary
hearing is necessary in addressing his issues if he was or not admonish by
the court of his right to appeal, and if counsel gave notice of appeal or-
not,
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ncoNcLUsIoN
Wherefor Petitioner, summits Motion To Supplement and Amend The Original
Application For Writ of Habeas Corpus, Requesting for Out- -of-Time-Appeal,
and Decide the issuse in a just and fair manner and Grant the petitioner such
relief the Law permits, In the Interest of Justice
Res ectfull Submitted
N . - . ``
_.6/.¥./€.’€.11``-.10_11<:1;, PrOSe\-) , w _ ,, _, ``_.
James Hinojosa
_ TDCJ-ID# 1807828
Coffield Unit'
2661 FM 2054 .
Tennessee Colony, Tx.``75884