Medrano, Arturo Solorzano ( 2015 )

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July 19 , 2015
Court Of' Crimi nal Ag)eals
libel Acosta, clerk E@EEVED EN
P.O. Box 12308, C'zapital Station @@UHT®FC@MHNY¥LAPPEALS
Austin, irean 78711 JuL @Q‘ @@‘q§
RE: E!x Parte Arturo Solorzano Medrano, Applicant A%@VA@@§Y@,CB@F§€
wR-Sz ,696-01 ``
Dear Clerk ,
Enclosed you will find "Applicant'S Traverse To The State'S E‘indings Of
E‘act And Conc]usions 'Of Law On Reman466 U.S. 663, 104
S.CT. 2052(1984); EvittS.V. Lucey, 469 U.S. 387, 105 S.C'I'. 830(1985).
In Ex Parte Del-aney, the Court of Criminal Appeals held that when the record
reflects that there is no waiver in the record certifying that an appellant
expressly waived his right to agpeal,. that waiver is ineffective . See Ex:~Parte
Delaney, 207 S.W.3d 794,796(Tex. Crim.App. 2006); Ex Parte Thomas, 545 S.W.Zd 469
(-Tex Crim.App. 1977); Ex Parte".[bwnsend-, 538 S.W.Zd 419(Tex. Crim.App. 1976) .
Here in Apolicant's case now before the Court of Crimhial Appeals, the
record reflectw that appellant plead not guilty and was tried by jury. (R.R.Vol#l,.
pp. 3). After the jury found Agplicant guilty, he entered into a plea bargain agreement'
for a 25 year sentence. (R.R. Vol#l,pp.4~5). However, there is no document in
the record before the Court reflecting that applicant expressly.waived his con-
stitutional right to appeal. (R.R.Vol#l, pp. 3?6). Furthermore, the record also
shows that the trial judge abused his discretion when he ordered that Applicant
ha serve 25 years without the possibility of parole. (R.R. Vol#l,pp.6, line 2-5)
According to Texas Penal Code § 21.02(h)-Continuous Sexual Abuse of Young
Child or Childern- "An offense under this section is a felony of the first
degree, punishable by imprisonment in the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years or less than 25 years. See:
Texas Penal dee § 21.02(h). This further supports Agplicant‘s claim that his
trial counsel's perfonnance was deficient/ because he allowed and incouragei
the trial court to impose an illegal sentence. Conseguently, Agplicant"s sentence
of 25 years without the possibility of parole must be reversed and remanded for
a new punishment hearing, in t}e interest of justioe.
Second, the record shows that this Court (Court of Crimdial Appeals) Ordered
the trial court to supplement the record to show -"If Applicant did expressly
waive his right to apoeal, the trial court shall supplement the habeas record
with evidence of such a waiver. (Order , Bb.WR~82,696-Ol,pp.2). However, the
record still reflects that there is no document in the record before the Court
showing that applicant expressly'wwaived his right to appeal. The record before
the-Court shows that the trial court totally disregarded this Court's Order to
"supplement the habeas record with evidence of such a waiver. Consguently, the
trial court's finding that Applicant waived his right to appeal is ineffective.
Ex Parte Delaney, 207 S.W.Bd 794/ 796(Tex. Crim.App. 2006).
5 , 1
C[hird, the- trial court's findings and conclusions that -- "Dpplicant has
failed to prove that he received ineffective assistance of counsel because he
failed to prove that couns'el'.'s representation fell below an objective standard
of reasonableness, nor did he prove that there is a reasonable probability that
but for counsel's unprofessional error, t_he result of the proceeding would
have been different" -" is also contradicted by the record of evidence. ( con-
clusion of Law/pp. 2-3) .
standard of Review
The standard 'of review to show that counsel provided ineffective assistance
of counsel is set out in Strickland»V. Washington, 466 U.S. 668, 104 S.Cl‘. 2052,'4
(1984)-"§ Evitts V. Lucey, 469 U.S. 387(1985); Ex Parte Axel, 757 S.W.2d 369(Tex .
Crim.App. 1988). In Evitts V. Lucey, the-Slpreme Court held that the Sixth
Amendrrent right to effective assistance of counsel extends to a first appeal |.as
of right. Likewise, lin EX Parte Axel,- 757 S.W.2d 369 at 374, this Court held
that applicant was denied effective ass/istance of counsel when coursel failed to
give applicant any practical assistance in protecting and preserving appellate
rights, thus entitling applicant to an out of time appeal. This Court further
held that counsel has a burden to ensure that appellate rights are protected and
to present a sufficient record to resolve the issue he or she preseits on appeal.
fix Parte Axel, 757 S.i/Q.Zd at 374; Amador V. State, 221 S.W.3d 666, 675('I‘ex. Crim
App. 2007); Guajardo V. State, 109 S.W.3d. 456, 462(Tex. Crim.App. 2003) .
Deficiem:y
Here,» in Applicant's case now before the Court, the record shows that.appli-
cant alleged that his trial counsel failed 'to adequately communicate his options
on appeal which resulted in his direct appeal being dismissed. (Appeal No.05-14-
00129-CR)
Applicant specifically argued that trial counsel misinformed him that he
could not appeal the guilt and innocence phase of his trial_inwhich he plead
not guilty and was trkad by jury, and misrepresented to him that he would be
eligible for parole within two years if he took the 25 year sentence when infact
he would have to serve his 25 year sentence day for day without any possibility
of parole, as ordered by the trial court. (R.R. Voll,pp.6) This satisfies part
'one of Strickland‘s Uwo part test, because it shows that trial counsel failed to
protect applicant”s constitutional right to appeal. Ex Parte Axel, 757 S.W.Zd at
374; Evitts/ 469 U.S. at 3897 Strickland, 466 U.S. at 688.
Harm Analysis
Applicant further contends that he was prejudiced by counsel”s unprofessional
error because counsel's error resulted in his direct appeal bedig dismissed in
- violation of his First Amendmeit Right to a§first appeal as a matter of right.
Evitts, 469 U.S. at 389. Applicant further aggues that he was also harmed by
the fact that he is now serving a 25 year sentence without the possibility of
parole when infact, this sentence is illegal according to Texas Penal Gmde §
21.02(h). This satisfies part two of Strickland's test, because applicant has
``shown that but for trial counsel's unprofessional error there is a reasonable
probability that the result of the proceeding would have been different. Strick-
Land, 466 U.S. at 695; Evittsv 469 U.S. at 389; Ex Parte Axel, 757 S;W.Zd at 374.
* Prayer
Applicant respectfully prays that the Court of Criminal Appeals conduct a
hearing de novo review, and thereafter grant applicant an out of time appeal in
die interest of justice, so that he may properly assert his constitutional right
to a first appeal as a matter of right.
REspectfully Submitted:
7
Arturo Medrano No. 1894196
Coffield Unit
2661 F.M. 2054
Tennessee Colony, 'Iexas 75884
Applicant , Pro se
Certificate Of Service
I, Arturo Medrano, Applicant, Pro se, do hereby certify_that a true and
correct copy of this foregoing instrument has been served upon Shara D. Saget,
Assistant District Attorney," Frank Crowley Courts Bldg., 133 N. Riverfront Blvd. ,
LB-19', Dallas, Texas 75207-4399. Executed on this 19th day of'~»“'July, 2015.
__/
Sign: W Wd?'o”l»&'~/
Arturo_Medrano No. 1894196
Applicant , Pro se