-
, ~O| 02)03/04/ 324 350 1 O-§ February 25 , 2015 Court Of Criminal Appeals RECEWED ,N Clerk, Abel Acost;é"'.'"."» COURT OF CR|MINALAppEALS P.o. Box-.12308,. Capital statié§n _ Austin, Texas 78711 - MAR 03 2015 RE: Ex parte Matthew' Cotten AbeiAcQSta. C'€F§( Writ NOS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-4'32-'--1-3'73-1227020-A; C-432-010374-1227021-A; C¥432-010375-122711_1-A. Dear Clerk, Enclosed you will find "Applicant's Traverse To the '_I‘rial Court's-,Findings‘ of FAct and Conclusion of Law" in the above stiled and numbered causes. Please file- stamp said instrument and bring it to the attention of the court in your usual fashion. 'I'hank you for your time and cooperation. Respectfully Submitted: k _ Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 CC: Steven W. Conder Assistant Distr'ict Attorney 401 W. Belknap Fort Worth, Texas _76196-0201 writ No. c--432-\Qi0371-3;122233_6-A Ex Parte In The 432nd Judicial District Court Matthew Cotten mm€m¢°bfm Tarrant County, Texas Applicant's Traverse To The Trial Court's-Findings Of Facts And Conclusion Of law To The Honorable Court Of Criminal Appeals: Now'Ccmes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's TraVerse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support thereof will show this court the following: Grounds For Relief `` On January 4, 2015, Applicant filed this foregoing writ of habeas corpus alleging five constitutional violations during the course of his trial court proceeding. In ground nuber one, Applicant contends that his sentence of thirty years in Cause No.1222335D:, is i§legal because the "Judgment of Conviction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of'thirtyiyears in Cause No. 1222336D , is Void because the State presented "No Evidence" to support the enhancement paragraphs alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he _was denied due process and due course of law When the State presented "no evidence" to support the enhancement allegatiOnS aS required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence Void. In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he 'failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement against}himself. Argument And Authorities Ground Number One In ground number one, Applicant argued that his sentence of thirty years in Cause No. 1222336D is illegal because the"Judgment Of ConViction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition For Writ Of\Habeas.Corpus In addressing ground number one, the district attorney argued that relief should be denied simply because -TFthe indictment alleged two prior felony convictions: a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant!s constitutional questions of law and fact regarding the applicant's clain1that the record affirmatively reflects that his sentence is illegal because the "Judgment of ConViction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment 0f ConViction By Court, Appendix No. 1-5, and R.R. Vol#2, pp. 109 through pp. 114). ;Applicant maintains that because the "Judgment of Conviction and the Reporter's v Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#Z,pp.lOQ through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1). Habeas Court Memorandum/ Findings On February 2, 2015,-the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any 4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp.l). Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation to ground number one based upon the fact that the trial court's findings is contradicted bY; the vrecord of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of ConViction By Court and QR.R. Vol#2,PP-109 through pp.114). A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to onlyv one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewi$e, a review§gfthe punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence§qf thirty years void. Moreover, the record shows that the district attorney only asked the trial court to take iudical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to support the enhancement aiiegation, the trial court illegally concluded: !Based upon the foregoing evidence and the information that's been provided to \ y "' '._:T\ v v z l 1.3:%~"~, the court and your admlsslon, the court hereby finds you guilty of all five caus§ ;5. U=.. numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. Cotten. The respective enhancements are also found _ to be true. In the cause numbers, with the exception of 1227111, the Court hereby n sentences you to 30 years in the Institutional Division of the Texas Department of Crimina1 Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years ' in the Institutional Division of the Texas Department of Criminal Justice." (R_. R. Vol#3,pp. 86, line 18 through pp.87, line1-7). `` é Section 12;42(d); Texas Penal Code governs the punishment for habitual felony`` offenders, and requires the State to present evidence of two prior felony offenses ' inorder to sentence anyone as a habitual offender. EX Parte Rich,
194 S.W.3d 508, 511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistantly held _that the State must present evidence which supports the enhancement allega§ions contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment can not be legally ``enhanced. Cole V. State,
611 S.W.2d 79, 80(Tex. Crim. App. 1981),~'Mize1_1 v. state,`` 119 s.w.3d at 806(1@<. App. 2006); Jordan v. state, 256 v s.w.3d 290, 293_(¢Tex.crim. App. 2008). "' Here, in applicant's case now before the Court of Criminal Appeals the record ,..-¢-rl shows that at thef::_, hearing the State only asked the court to take judicial notice of the presentence investigation report which did not contain§'any evidence of any prior felony convictions. (R.R.-;.Vol#3}pp.7, line 6 through pp.S, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two'and Three In ground number two, applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12. 42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. In ground number three, Applicant argues that he was denied dueqiprocess and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his thirty year sentence void. State's Reply Tb Petition For Writ Of Haheas Corpus ln addressing grounds two and three, the district attorney argued that relief should be denied because: "The record herein is not totally devoid of evidentiary support for enhancing the applicant's sentencing range." (See: Statevs Reply,pp,§), Mbre specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to the&appéarah&§,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding applicant's claim that the State presented "no evidence" to support7 the essential elements of the enhancement paragraph as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State's Reply, pp.5¥6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts Bave long held that in all criminal prosectutions regardless of the plea or whether the punishment is assessed by the iudge or the iury, in no event shall a person charged with a criminalf;offense be convicted upon his plea without sufficient\evidence to support the same. Articke 1.15, Texas Code Of Criminal Procedure; Stone V. State,
919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Messer V. State,
729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. Iouisville,
362 U.S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves-» tigation report is inadmissible as proof of a final conviction where the P.S.I. report . did not con$ain certified copies of prior iudgment of :convictions against the appli- cant. Gar¢ia V. State, 930 S§.W.2d 621, 623(Tex.Crim. App.1996). Likewise, in order for a stipulation to be considered as evidence where the plea is before the.court, the state must introduce a copy of the iudgment and sentence in each case for enhancement purpose. See: Messer, 729 S.W.Zd at 698;
Stone, 919 S.W.2d at 426; Ex parte
Brown, 757 S.W.2d at 368; Ex parte Rich, 194 s.w.zd at 513. `` Here, in applicant's case nomlbefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a iudicial confession admitting to all of the-allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- _ examination of witnesses, and consented to oral and written stipulations of evidence. (See§ State's Reply, pp.5). In conclusion, the record clearly shows that the State denied applicant due proc§ss aid due cou§se of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment Of the Uhited States Constitution. Consequently, no rational trier of fact could have found the essentiau elements of the enhance- ment allegations true beyond a reasonable doubt. Habeas Court Memorandum-/ Findings In addressing ground number two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, pp. 1). Applicant's Traverse Tb The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's iudicial confession (standing alone) provides some .evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his iudicial confession standing alone is not enough to support proof of a final ~¢onviction, where the P.S.I. report did not contain certified copies of prior iudgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte
Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513¢ The Texas Court of Criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of Criminal Procedure; Stbne V. State,
919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer V. State,
729 S.W.2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final conviction, where the P.S.I. report did not contain certified copies of prior iudgments of convictions against the applicant.
Garcia, 930 S.W.2d at 623. In summary, the State must introduce a copy of each iudqment of conviction, in each case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell V. State,
228 S.W.3d 343at 346; Ex parte Rich, 194 S.w.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take iudicial notice of the presentence investigation report and then_rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.lI4,'1ine 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wene "no evidence" of prior convictions contained within the P.S.I. report. §Thus, based' upon the record¢ no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court _must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five In ground number four and five, Applicant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda warning" to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure. In ground number five, Applicant argued that Detective Anderson violated his due process right under the fifth and fourteenth amendment of the United States Constitu- tion when he threatend§-physical harm to him and his property in order to coerce him to give a self-jncriminating statement against himself. State's Reply Tb Petition For Writ of Habeas Corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: "The applicant's Miranda and due process grounds for relief are not cognizable _because these same complaints were reiected on direct appeal." (See: State's Reply, pp.6). However, the district attorney has failed to address applicant's constitutional questions of law and fact regarding additional evidence that is being presentéd:lfor the first time in this foregoing habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claims raised and reiected on direct appeal zare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852(TEx. Crim. App.1992); Ex parte Goodman,
816 S.W.2d 383, 385(Tex. Crim, App. 1991); Ex parte Russell,
738 S.W.2d 644, 646(Tex. Crim.App. 1986). Habeas Court Memorandum / Findings In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not itognizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trialx court's recommendation that ground four and five be denied based upon the trial court's finding that: l "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims now before the court are fundamental constitutional claims that are based upon new theories that were not.presented on direct appeal. EX parte Good- man, 816 SBW#Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell,
738 S.W.2d 644(Tex. Crim. App.1986); Ex parte
Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law is clear, although habeas corpus is traditionally j:unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte
Schuss&er, 846 S.W.2d at 852(Tex: Crim. App. 1992)(granting relief due to lack of iurisdiction)} Ex parte Russell, 738 §§W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void prior conviction); Ex parte Bravo, 702 S.W.2d 189(Tex Crim.App. 1982)(granting relief do to the improper excusal of a veniremamber): Ex parte Clark) 597 S.W.2d 760(Tex. lCrim;App.1979)(qranting relief due to the trial.;COurt's failure to apply the law to the facts of the case). Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial< court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his Miranda Right guaranteed to him bi the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning"-to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of Iaw, pp.14). After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number ione on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant's Miranda.and due process grounds for relief are not cognizable because they were litigated on direct appeal"¥- must be overruled and the cause remanded back to the trial court for a new trial. 'Likewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and »voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth'Amandment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incrhhinating statement against himself. (See: Applicant's Memorandum of law, pp.17). In summary, after comparing applicant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims are not the same because applicant is now presenting a constitutional issue loftlfundamental'error based upon a theory not alleged on directnappeal. Conseiuently, the trial court's finding that --"applicant's Miranda and due process grounds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one,.two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves The Court.. Respectfully Submitted: Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 10 ' certificate of service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy of this foregoing instrument has been served upon Steven ``W. Conder, Assistant District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th day of February, 2015. am WMA/~ &27/€~ Matthew Cotten No. 1826716 Applicant, Pro se;:;.§‘..§i§ 11 Wlit hkn C-432-010372-1227019-A Ex Parte f In The 432nd Judicial District Court Tarrant County, Texas ¢m_oameoaco: Matthew Cotten Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of law To The Honorable Court Of Criminal Appeals: .Ngw'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Of Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus; And in support thereof will show this court the following: Grounds For Relief lh:ri;;On:January:A;;ZOl§;.AppLicant:filed:this¢foregoing~writeof¢habeas¥cofpusl+~##4~¥~”4¢``1 ``alleging"fiveyconstitu@i§§§¥lY§@}?P§§§§j§@iih§§§b§.§QH£§§_Qf-bl§,t@§§£{}§§§§§;brbc:§ edi g _-:_ In ground nuber one, Applicant contends that his sentence of thirty 4years in Cause No.1227019D ``, is illegal because the "Judgment of ConViction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirty years in Cause No.1227019D , is void because the State presented "No Evidence" to support the - enhancement paragraphs'alleged in the indictment, as required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal.Con- stitution. In ground number three, Applicant contends that he _was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12. 42(d), Texas Penal Code; thereby making his thirty year sentence void. - In ground number four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a Self-incriminating statement against' himself. Argument And Authorities Ground Number One, In ground number one, Applicant argued that his sentence of'thirty years in Cause No. 1227019D is illegal because the"Judgment Of ConViction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. state's Reply To Petition For writ of Habeas-corpus ln addresslng ground number one,_ the dlstrlct attorney argued that relief should MW‘"be“denled~slmply because'=§?the indictment a11eged two'prigr'felony convictions: a 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, vhis sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's clajrn that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant of the habitual offender allegations. (See: Judgment Of ConViction By Court, Appendix No. 1- 5, and yApplicant maintains that because the "Judgment of ConViction and the Reporter's 1 Record" at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#Z,pp.lOQ through pp.ll4) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under28 U.S. C. §2254(e)(l). Habeas Court}kmmnznuhmv Findings On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the‘ events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any 1 decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See: Memorandum / Findings, pp.l). Applicant's Traverse Tb' The Trial Court's Findings Applicant now contends that the Court of Cr1m1nal Appeals should not adopt the trial court's recommendation to ground number one based upon the fact that the trial court s flndlngs is contradicted by the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of Conviction By Court and (R.R. Vol#2,pp.109 through pp.ll4). A review of the "Judgment of ConViction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). [ikewise, a review'ofthe punishment hearing showsv that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's sentence of thirty years void. Moreover, the record shows that the_district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested{ (R.R. Vol#3,pp.7, line 6 through pp.8, line 1~15). Nevertheless, without any evidence beingpresented at trial to support the enhancement allegation, the trial court illegally concluded: FBased upon the foregoing evidence and the information that's been provided to _..,,.1 ve § , swsz ~R g 1 f i’»v. »``,.»- numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectlvely styled the State of Texas versus Matthew C. Cotten. The respective enhancements are also found to be true. In the cause numbers, with the exception of 1227111, the Court hereby y sentences you to 30 years in the lnstitutional Division of the Texas Department of j ==*=“==errmmnai~&astree*-in-€euse~No==lZ%?i¥%==theeourt““h‘"r"f " in ,__' 'in the Institutional Division of the Texas Department of Criminal Justice." (R. R. Vol#3,pp.86,line 18 through pp.87, line1-7). Section 12:42(d); Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. EX Parte Rich, 194 S. W.Bd`` 508, 511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistently held that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punishr ment can not be legally enhanced. Cole V. State,611 S.W.2d 79, 80(Tex. Crim. App. 1981); Mizeii v. state, 119 s.w.,3d at 806(1@¢. App. 2006),» Jordan- v. state, 256 - --S;W.3d!290}"293§Tex2€fim}~Appf-2008)~ `` ~_ ;»~ " `` ``4 - ........ s;f;reex;Here%:in:appldcantmv"case“now:beforeIthem;Court¢of4Criminal¥Appealssthelfe§ofdlres414!~ “'"shows"that``at;thej; "' hearing the State only askéd_ the court to take 1ud1c1al notice of the presentence investigation report which did not contain. any evidence of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations .true beyond a reasonable doubt. In conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three `` 7 In ground number two} applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations required by Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. t - In ground number three, Applicant argues that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by- Section 12.42 (d), Texas Penal Code; thereby\making his thirty year sentence void. a=a====Sfif§w§=R§§TY=TE;P§€TtISH°FET“Wff€qd?i§§i§@?€brpus .In addressing grounds two and three, the district attorney argued that relief should be denied because: l 4 f "The record herein is not totally devoid of evidentiary support for enhancing _ the applicant's sentencing range." (See; Statels Reply,pp,§), More specifically, the district attorney argues that there is some evidence to support the_enhancement allegations based upon (1) "The applicant entered a `` judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to thenappearancé,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional 1,rlquestions“of;lawwandpfact“regarding:applicant* s:claim;that:the;$tate:presented:£no;;ww-1§11 evidence"'to support::the essential elements of the enhancement paragraph as required by Section 12. 42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- l tution. (State' s Reply, pp.5-6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant's waiver of his right to the appearance, confrontation and cross- examination of witnesses." This is because the courts have long held that in all criminal prosectutions regardless of the``plea or whether the punishment is assessed by the iudge or the iury,.in no event shall a person charged with a criminal. offense- i be convicted upon his plea without sufficient evidence to support the same. Artitle. ’ 1.15, Texas Code 0f Criminal Procedure; Stone V; State,
919 S.W.2d 424,.426_(Tex. Crim. App. 1996); Messer V. State, 729 S.WLZd 694,698(Tex.Crim.App.1986); Stokes V. Procunier, 744 F.Zd at 483; Thompson V. louisville, 362 U¢S. 199, 80 S.CT. 62411978). Furthermore, proof of prior convictions contained within the presentence inves-. tigation report is inadmissible as proof of a final conviction where the P. S. I. report ¢ did not contain certified copies of prior iudgment of convictions against the appli- cant. Garcia V State, 930 S..W. 2d 621, 623(Tex. Crim. App.1996). Likewise, in order for a stipulation_ to beicnnsidered as_ evidence“where_ the plea,is“before the courtL_the statew__ vmust introduce a copy of the iudgment and sentence in each case for enhancement purpose. See:
Messer, 729 S.W.2d at 698;
Stone; 919 S.W.2d at 426; Ex parte
Brown, 757 S.W.2d at 368; Ex parte Rich, 194 S.W.Bd at 513. Here, in applicant's case nomlbefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a iudicial confession admitting to all of the-allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- 1 examination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5), ' _In concluslon, the record clearly _shows that the State denied applicant due process and due course of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essentiaj elements of the enhance- ment allegations true beyond a reasonable doubt. Habeas Court Memorandum_/ Findings In addressing ground number two and three, the trial court erred in stating: v "The Court finds that the applicant's judicial confession provides some evidence supporting the enhancement of his sentencing range to habitual offender status.- The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, pp 1--) Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial_court's recommendation that ground two and three be denied based upon the trial`` court's finding that--"applicant's 1udicial confession (standing alone) provides some .evidence supporting the enhancement of his sentencing range to habitual offender status." Applicant maintains that his 1udicia1 confession standing alone is not enough ,to support proof of a final vconviction, where the P.S.I. report did not contain certified copies of prior 1udgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte
Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513. The Texas Court of Criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the 1ury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of ' Criminal Procedure; Stone V. State, 919 S. W.Zd 424. 426(Tex. Crim. App. 1996); Messer V. State, 729 S W. 2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior convictions contained within the presentence investigation report is inadmissible as proof of a final convictlon, where th§ P. _S I. report did not contain cert1f1ed copies U:Qf prior judgments of convictions against the applicant._ Garcia,_930 S. w.2d at 623 ...... "In summary, the State must introduce a copy of each 1udgment of conviction, in each case used for enhancement purpose. See: Section.12.42(d), Texas Penal Code; Terrell V. State,
228 S.W.3d 343at 346; Ex parte
Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take 1udicial notice of the presentence investigation report and then rested without pre# senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.114, line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidence" of prior convictions contained within the P.S.I. report. TThus, based upon the record¢ no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the_recommendation of the trial court must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five In qround number four and five} Applicant arqued that Detective Anderson violated his Miranda Riqht quaranteed to him by the fifth and fourteenth amendment of the United State Constitution when he failed to read the full "Miranda Warninq" to him as required =====§=5j=§rtic?e=%%?%%=§é§%a%$£dz=Texas°Code=of=tilmiual??iot=eduie?"‘f``f'“‘__'* _ _________ In around number five,_Applicant arqued that_Detective Anderson violated his due process riqht under the fifth and fourteenth amendment of the United States Constitu- tion when he threatend .pthical harm to him and his property in order to coerce him 1 to dive a self-jncriminatinq statement aqainst himself. State's Reply.To Petition For Writ of Habeas Corpus In addressing ground number four and five, the district attorney arqued that- relief should be denied because: "The applicant's Miranda and due process qrounds for relief are not cognizable`` ,because these same complaints were reiected on direct appeala",(See;'State!s_Reply, pp.6). However aeae»-a'i’-S%r'i#¢»¢#»at'~eo'r‘né;;--raS=~f»§a§i»'éd »eo``»ada'r¢=$s~aaafa§a”€-``=§*aan:seeut"i'-'emal -- i,"_`` .i ~.qiiéstions.:c">é_"_iéw:fahd,,:f_,éc*£.jré&éi:{i"ihd addi£i<``>néil _é§r;i?ie'r{c``é. 1£?1&1``; li“slb"e``ih‘d. fnr``.és"én£é<}; ,``fk)“r: l ; 1 ; -- _ , _ the first time in this foreqoinq habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the``qeneral rule that claims raised and reiected on direct appeal _are not cognizable on habeas corpus. Ex parteSchuessler, 846 S.W.2d at 852(TEx..Crim} App.1992); Ex parte Goodman,
816 S.W.2d 383, 385(Tex. ``crim,'App_. 1991); Ex parte Russeli, 738 s.w,Zd 644, 646('1‘@<§ crim.App. 1986). `` `` Habeas Court Memorandum / Findings v _In addressinq around number four and five, the trial court erred in statinq: "The Court finds that the applicant's miranda and due process qrounds for relief are not coqnizable because they were litiqated on direct appeal." (See; Memorandum/Findinq, w 'pp; 1\. Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court' s recommendation that ground four and five be denied based upon the trial court's finding that: ¢____'________"__ _*»*-*_*____’__* __ ’______ "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding; pp.l). .Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar,. because his claims now before the court are fundamental constitutional claims that are based upon new theories that were not presented on direct appeal. Ex parte Good- man, 816 S§WLZd 383, 385(Tex. Crim. App.-1991); Ex parte Russell,738 S.W.2d 644(Tex. Crim. App.1986); Ex parte
Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law is clear, although habeas corpus is traditionally _unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte Schussler, 846 S W.2d at 852 (Tex Crim. App. 1992)(granting re1ief due to lack of iurisdiction); Ex parte Ru§sell,» 738 S. W.Zd 644(Tex. Crim. App. 1986)(qranting relief due to improper admission of void prior; conviction)hWExmparte Bravo, 702-S.W.2d 189(Tex Crim.App. 1982)(grant1ng relief do to the improper excusal of a veniremamber) EX parte- Clark1~597 S. W.2d~760(Tex. ¢A``~ v»_-_...._..-..,.',.-``~-vv,.r.',_-~,,.v',_,,,.....~--...._.....__--..._..~-_.._~v~»...,~_..~'_....-v~..,.._._.. Crim.App.l979)(granting relief due to the trial court' s failure to apply the law to the facts of the case). Here, in applicant' s case now before the Texas Court of Criminal Appeals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of.the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warning" to him as required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of law, pp.14). After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number one on direct appeal it becomes clear_that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant' s Miranda and due process grounds for relief are not cognizable because they were litigated on-direct appeal"-- must be overruled and the cause remanded-back to the trial court for a new trial. 'Likewise, a review of applicant{s second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, and voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review lof applicant's fifth ground for review on his habeas corpus petition shows that he alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amendment of the United States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incrdninating statement against himself. (See: Applicant's Memorandum of Law, pp.17). Ln summary, after comparing appl icant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims are not the same because appllcant is now presentlng a const1tutlonal 1ssue the trial court' s finding that --"appllcant's Miranda and due process gf6unds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli¢ cant So Moves The Court. Respectfuny Submitted= WJMW&@@ Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 1n Certificate Of Service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy of this foregoing instrument has been served upon Steven W. Conder, Assistant District»Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th _ day of February, 2015. gm mm dodge Matthew Cotten No. 1826716 Applicant, Pro se 11 writ N<». c-,432_.010373_1227020-A Ex Parte In The 432nd Judicial District Court mm¢°l¢°?€°b Matthew Cotten Tarrant County, Texas" Applicant's Traverse To The Trial Court's Findings Of Facts And Conclusion Of law Tp The Honorable Court Of Criminal Appeals: Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's_ Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the Court Qf Criminal Appeals to grant this foregoing State post conviction writ of habeas corpus. And in support thereof will show this court the following: -Groumds For Relief . 111111;11;110n January..~‘,i;iZOlSw Applicant1f1led~thiswforegoino»wrlt of~habeas~corpus»Wsuse»-v~»¢»~!i " f alleging five constltutional vlolat1ons during the course of his trial court proceedlng._ » In ground nuber one, Applicant contends that his sentence of thirty years in Cause No.1227020D , is illegal because the "Judgment of ConViction By Court" and the "Record At Trial" shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. In ground number two, Applicant contends that his sentence of thirty years in Cause No.1227020D , is void because the State presented "No Evidence" to support the- enhancement paragraphs alleged in the indictment, as required by_Section 12.42(d), Texas Penal Code, thereby denying him due process under the State and Federal Con- stitution. In ground number three, Applicant contends that he ,was denied due process and due, course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. t In ground number four, Applicant contends that Detective Anderson violated his - "Miranda-Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required-by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground number five, Applicant contends that Detective Anderson violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement againstf himself. Argument And Authorities Ground Number One t In ground number one, Applicant argued that his sentence of thirty years in Cause No.1227020D is illegal because the"Judgment Of ConViction By Court" and the "Record At Trial" shows that the trial court found only one enhancement para- graph true, thereby making his punishment excessive. State's Reply To Petition For Writ Of Habeas.Corpus __ In addressing ground number one, the d1str1ct attorney argued that relief should __M n ~'t'``“~be denied simplytbecause"'fthe indictment'alleged two'prior felony convicti'ons?"a""*"“ 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 'burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claini that the record affirmatively reflects that his sentence is illegal because the "Judgment of Conviction By Court" and the "Reporters Record at trial", both affirmatively reflects that the trial court only found one enhancement paragraph true, thereby acquitting applicant.of the habitual offender allegations. (See: Judgment Of_Conviction By Court, Appendix No. 1-5, and R.R. Vol#Z, Dp§ 109 through pp. 114). _Applicant maintains that because the "Judgment of ConViction and the Reporter's 1 Record" at trial shows that applicant plead "True" only once during the entire course of trial, and ~the trial court found only one enhancement paragraph to be true (See: R¢R. Vol#2,pp.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled~to-the presumption of correctness under 28 U;S.C.~§2254(e)(l)¢ Habeas Court Memorandum/ Findings On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney's interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and fact: In addressing ground number one, the trial court simply stated without any- 4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive. The court recommends that this ground for relief be denied." (See:-Memorandum / Findings, pp. 1 ) - .....'A;zpi:i”éé'ri€'.'§1':‘1,_'1&.-;’1§)§1§§¢§1:1'611.THe~,Tr~iai-" court"sr.r~ihdiiigsi .,w.il1Applicant1now1contends1that1the1Court¢of11Criminal“Appealswshouldenoteadoptwthe»;;q .1L““trial1court!smrecommendation~tohground_number$one1based_uponethe~fact-that»the»trial »»»»»»» » court's findings is contradicted by:wthe record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of ConViction By Court and (R.R. Vol#2,pp.109 through pp.114). A review of the "Judgment of ConViction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court-found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of JUry Trial"). Likewise, a_ review'ofthe punishment hearing shows .that the``State never presented any evidenceto support the enhancement allegations thereby making l the trial court's sentence of thirty years void. Moreover, the record shows that v the district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to support the enhancement ailegation; the trial court illegally concluded: FBased upon the foregoing evidence and the information that's been provided to 3 -¢¢~:zg;r,-;n Z\”¢X. :~,<,-»!-M w -1 the. court and your admission, the court hereby finds you guilty of all five caus§ `` numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled thevw State of Texas versus Matthew C. Cotten. The respective enhancements are also found to be true. ln the cause numbers, with the exception of 1227111, the Court hereby sentences you to 30 years in the Institutional Division of the Texas Department of '“'*"‘°"°"(i‘r“.!.””``w vTl.'ti'rTa'i.l:;``_JlB‘l:"i'Ce. in F.l'l:rs"'§“"l‘$ry vc),. 122/111, theCourt nerer sentences you_ to 20 years » `` shows that at thé'jl": in the lnstitutional Division of the Texas Department of Criminal Justice." (R.R. Vol#3,pp.86,line 18 throughl pp;87,linel-7). Section 12.42(d); Texas Penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parte Rich,194 S.W.3d 508, 511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of Criminal Appeals have consistently held that the State must present evidence which supports the enhancement allegations contained in the indictment. This is because, if the proof at trial fails to correspond with the enhancement allegations, the punish- ment can not be legally enhanced. Cole V. State, 611 S.W.2d,79, 80(Tex. Crim. App. 1981); Mizell V. State, 119 S.W.3d at 806(Tex. App. 2006); Jordan V. State, 256 s.-w.-sd ~290, 2.9~3(~1~9;><.<:1£11“. App. 2'008). `` `` `` -»-~Herer~ln~applicant's case now>before~the»“Court of Criminal Appeals~the»record - 41- `` hearing the State only asked the court to take jpgig:a ¢* l.I-“ notice of the presentence investigation report which did not containr any evidence of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15). Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. ln conclusion, the findings of the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new punishment hearing. Ground Number Two and Three In ground number two, applicant argued that his sentence of thirty years is void because the State'presented "no evidence to support the enhancement allegations reguired by Section 12. 42(d), Texas Penal Code, thereby denying him due process under the State and Federal Constitution. ``\ In ground number three, Applicant argues\that he was denied due process and ky due course of law when the State presented "no evidence" to support the enhancement allegations as reguired by Section 12.42 (d), Texas Penal Code{ thereby making his _thirty year sentence-void; ;‘=====¥H§HZYEFREETY=To“ titi_"onr“Wrrt“Of*HahéE§’corpus In addressing grounds two and three, the district attorney argued that relief should be denied because: \ "The record herein is not totally devoid of evidentiary support for enhancing the applicant's sentencing range." (See: State's Reply,pp.$). More specifically, the district attorney argues that there is some evidence to support the enhancement allegations based upon (1) "The applicant entered a judicial_confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations; and (2) "The applicant waived his right to thehappearan¢§,confrontation and cross-examination of witnesses, and consented to oral and written stipulations of evidence." (State's Reply, pp.5). However, the district attorney failed to address applicant's constitutional _11questions;ofilaw;and:fact;regarding»'applicant' siclaimethatfthezState;presented;!noi1111__Mr; "evidence"“towsupport "the essential elements of the enhancement paragraph as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and due process under the Fifth and Fourteenth Amendment of the United States Consti- tution. (State's Reply/ pp.5-6). Applicant maintains that proof of prior felony convictions requires more than (1) applicant's iudicial confession admitting to all of the allegations in the indictment, and (2) applicant' s waiver of his right to the appearance, confrontation and cross- examination of witnesses. " This is because the courts have long held that in all criminal prosectutions regardless of the plea or``whether the punishment is assessed by the iudge or the iury, in no event shall a person charged with a criminalj offense l be convicted upon his plea without sufficient evidence to support the same. Artic1e 1.15, Texas Code Of Criminal Procedure; Stone V. State,919 S.W.2d 424, 426 (Tex. Crim. App. 1996); Messer V. State,
729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. Louisville,
362 U.S. 199, 80 S.CT. 624(1978). Furthermore, proof of prior convictions contained within the presentence inves- tigation report is inadmissible as proof of a final conviction where the P. S. I. report 1 did not contain certified copies of prior iudgment of convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for must introduce a copy of the iudgment and sentence in each case for enhancement purpose. See:
Messer, 729 S.W.2d at 698;
Stone, 919 S.W.2d at 426; EX parte
Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513. Here, in applicant'S case nomlbefore the Court of Criminal Appeals the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial are: *The applicant entered a judicial confession admitting to all of the-allegations in the indictment, including the enhancement and habitual allegations. *The applicant waived his right to the appearance, confrontation and cross- _ examination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5). -;l,r.l,i§§>ilji;lil§il
930 S.W.2d 621, 623(Tex. App. 1996); EX parte Brown, 757 S. W.Zd at 368; EX parte
Rich, 194 S.W.3d at 513. The Texas Court of Criminal Appeals have long held that in all criminal presecu- vtions regardless of the plea or whether the punishment is assessed by the judge or the iury, in no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, Texas Code of ‘Criminal Procedure} Stone V. State,
919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer V. State, 729 S. W.Zd 694, 698(Tex. Crim App. 1986).L1kewlse, allegations of prlor _ convictions contained within the presentence investigation report is inadmissible as nproof of a final conv1ction, where the P S 1 report did not contain certified copies ;m;_;; "of prior 1udgments of convictions against the applicantr Garcia, 930 S. W.Zd at 623 ........... In summary, the State must introduce a copy of each iudgment of conviction, in each v case used for enhancement purpose. See: Section 12. 42(d), Texas Penal Code; Terrell V. State,
228 S.W.3d 343at 346; Ex parte
Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas Court of Criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take iudicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,pp.114, line 16-211 and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1~15). Furthermore, there were "no evidence"- of prior convictions contained within the P.S.I. report. \Thus, based v upon the record¢ no rational trier of fact could have found the enhancement allegations' true beyond a reasonable'd_oubt.l In conclusion, the recommendation of the trial vcourt v must be overruled and applicant's case remanded back to the trial ccourt for a new punishment hearing. Ground Number Four And Five In ground number four and five, Applicant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United State\Constitution when he failed to read the full "Miranda Warning" to him as required uy A.L L,.L\_..Le_``io. /.L § U("a} \ 41 , iv:A``aS"€Ude"Of:€rlml'nal“Pr uLc:\:uu.Lc. In ground number five, Applicant argued that Detective Anderson violated his due process right under the fifth and fourteenth amendment of the United States Constitu¢ tion when he threatend .physical harm to him and his property in order to coerce him to give a self-jncriminating statement against himself. state's Reply To Petition For writ of Habeas corpus In addressing ground number four and five, the district attorney argued that relief should be denied because: "The applicant's Miranda and due process grounds for relief are not cognizable _nbecause.these.same.complaints were reiected on direct appeal.F (See; State!s Reply, pp.6). ' ”"“7““ “"MWIknmwer, thfwdlstrlct attorney has md¥tkfaddress;appli§aht;§:gonstitutihnal“‘“““"1`` -~mnwm~questions*of~law;and fact regarding_additional-evidence that.ls.being-presented for__r,-___§ the first time in this foregoing habeas corpus petition that was not presented on direct appeal. This evidence creates an exception to the general rule that claimsv raised and reiected on direct appeal are not cognizable on habeas corpus. Ex parteSchuessler, 846 S.W.2d at 852(TEX; Crim. App.1992); Ex parte Goodman,
816 S.W.2d 383, 385(Tex. Crim, App, 1991); Ex parte Russell,
738 S.W.2d 644, 646(Tex. Crim.App. 1986). Habeas\Court Memorandum / Findings ,In addressing ground number four and five, the trial court erred in stating: "The Court finds that the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding, pp. 1\. court's findingM that:_ Applicant's Traverse Tb The Trial Court's Findings‘ Applicant now contends that the Court of Criminal Appeals should not adopt the trial court' s recommendation that ground four and five be denied based upon the trial "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims now before the court are fundamental constitutional claims that are based upon newrtheories.that were not presented on direct appeal. Ex parte Good- man, 816 SQW;Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell,
738 S.W.2d 644(Tex. Crim. App.1986); EX parte
Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law ' is clear, although habeas corpus is traditionally 4unavailable to review matters'which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fundamental constitutional rights may be raised. Ex parte
Schussler, 846 S.W.2d at 852(Tex Crim. App. 1992)(granting relief due to lack of jurisdiction); EX parte Russell, 738 S. W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void 1.pr10r.conv1ct10n)biEx parte Bravo, 702: ms _W.2d 189(Tex Crim.App. 1982)(grant1ngmre11ef do to the improper excusal of a veniremember): EX parte Clark, 597 S. W.2d 760(Tex.--#~-``'-``‘ Crim.App.1979)(granting relief due to the trial court's failure to apply the law to the facts of the case). Here, in applicant's case now before the Texas Court of Criminal Appeals, the record ShowS that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Ap peals, pp. 4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that --"Detective Anderson violated his Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United States Constitution when he failed to read the "full miranda warnin " to him as required by Article 38¢22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of law, pp.14). ' After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's finding that --"applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause remanded -back to the trial court for a new trial. 'Likewise, a review of applicant's second claim on direct appeal shows that he argued that his waiver of his statutory rights was not knowingly, intelligently, andv voluntarily made. (See: Opinion of the Eight Court of Appeals, pp¢5). However, a review of applicant's fifth ground for review on his habeas corpus petition shows that he. alleged that --"Detective Anderson violated his due process right under the Fifth and Fourteenth Amandment of the United States Constitution when he threatened_physical abuse to applicant and his property in order to coerce him to give a self-incrdninating statement against himself. (See: Applicant's Memorandum of Law, pp.17). _In Swm“arv__,a-fte; CQmParinq.apPliCant'S ground-number five i“.~his habeas COrWS petition to applicant' s claim number two on his direct appeal, it becomes clear that the claims are notothe same_ because applicant is now presenting a constitut1onal issue ._;0£-qundamentalierror.based.upon_a_theoryln t alleged-on,direct appeal. Consequently, _________ the trial court's finding that'll“appli§antT§'Hiranda"and"dué“proE§§§”grounds for re- lief are not cognizable because they were litigated on direct appeal"--must be over- ruled and the case remanded back to the trial court for a new trial. Conclusion In conclusion, the findings of fact and conclusion of law recommended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- cant So Moves The Court. Respectfully Submitted: Matthew Cotten No. 1826716 Coffield Unit 2661 F.M. 2054 Tennessee Colony, Texas 75884 10 Certificate Of Service I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct copy of this foregoing instrument has been served upon Steven W. Conder, Assistant _,lml_mDistrict Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th"w_~*~ day of February, 2015. Sign: anjJC/\Lw~/ @QM/ v Matthew Cotten No. 1826716 Applicant, Pro se 11 §drnt.no. c-4azsoid;74-1227pz1_nv mine ammerman -; onserige control / ny 11 In ground nuber one, Applicant contends that his sentence of thirty years in Cause No. 1227021D ,_ i§ illegal because the "Judgment of Convictim By Court" and the v "Record At Trial'_' shows that the trial court found only one enhancement paragraph true; thereby making his punishment excessive. ff 9 Ia ground nmaher two, Applicant contends that his sentence of thirty years in Cause No. 1227621D. ,_ is void because the State presented "No Evidence" t``o support the enhansement paragraphs alleged in the indictment, as required by Section 12. 42(d), Texas Penal Code; thereby denying him due process under the State and Féderal Cc€r"n- stitution. . § y § ~ In ground amber three, Applicant contends that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement 4 allegations as required by Section 12. 42(d), Texas penal Code; thereby making his thirty year sentence void. l n»,`` In graman amber four, Applicant contends that Detective Anderson`` violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he failed to read the full "Miranda Warning" as required by Article 38. 22§ 3(a)(2), Texas Code of Criminal Procedure. q .j. §§ x In ground nmaber five, App1isant contends that Dstestive Anderso'n violated his "Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened physical abuse tp applicant in order to coerce him to give a self-incrimina§_,ing statement against himself. l Arguuent And Authorities -.\v. .\ In ground number one, gpplicant argued that his sentence of thirty y_ars in cause N¢``. 1222336D 1a illegal because the"'»audgi¢snt of conviction B``y court" and § the "Record At Trial" shows that the trial court found only one enhancement para- 4 graph true, thereby making his punishment excessive. _"€~ . _ , §§ '?¢ states Repiy 'iv"P§£i£io:n aérjwrnt of;nabeas'corpus In addressing ground timber one, the district attorney argued that relief should - be denied simply because -"the indictment alleged two prior felony convictions. a ._ 2003 conviction for possession cf a firearm by a felon, and a 19_97 conviction for " burglary of a habitation. The trial court found these prior convictions to be true. Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty year sentence is within the statutory range for a habitual felony offender. As such, - § _ his sentence is not excessive." (See: State's Reply ‘Ib Petition For writ Of Habeas w Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claim that the rsc':€§)rd.l affirmatively reflects that his sentence is illegal because the "Judgment of ConViction iBy Court!* and the "Reporters Record at trial", both affirmatively reflects that the tri_a_l court only found one enhancement paragraph true, thereby acquitting applicant of the habitual _ offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and R.R. Vol#Z, pp. 109 through pp. 114). Applicant maintains that because the "Judgment of ConViction and the R_e_porter’s Record" at trial shows that applicant plead "True" only once during the entire cours§ of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. vol#2¢Pp.109 through pp.lld) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the preemption of correctness umder 28 t!.s.C. . §2354(e)(1). mmscourttworandum/Findines On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting the district attorney' s interpertation of the events on all five constitutional claire without addressan applicant's questions of law and facts ‘ In addressing ground nunnher_one, the trial court simply stated without any decussionu--"The' Court finds that the applicant's thirty year sentence is not excessive. The court tecumends that this ground for relief he denied." (See: Mamrandum / Findings, pp.l). _ ' ~ \~. . _ . Applicant's Traveree id The Trial`` cmxrt's Findings Applicant now contends that the Court of Criminal- Aplpeals should not adopt the trial court's ramendation to ground number one based upon the fact that the trial court's findings is contradicted by> the record of evidence at trial which shows that the trial court only found one enhanth paragraph to be true. (See: Judg- . ment or conviction sy~. court anal?.(~n.uu. voi#z.pp.loe through pp.114). A review of_the "Judgment of ConViction By Gourt"u at trial clearly shows that applicantplead "True" to only one amusement paragraph and the trial court found ' only one enhancement paragraph true. (Seec‘ dudgment of Cmvic_tionhy Court-Waiver of JUry Trial"). l,ike§riee, a revieuofthe punishment hearing shows that the State never presented any "evidenceto support the enhancment allegations thereby making the trial court' s sentence o_f_ thirty years void. However, the record shows that the district attorney only asked the trial court to take judical notice of the presentence investigation report and then rested. (R.R. Vol#3¢pp»7. line 6 through pp.8, line 1-l5)~, Nevertheless_, without any evidence beingpresented at trial to support the _~enhancauent`` af§egation, the trial court illegally concluded: '€uBaaed upon the foregoing evidence and the information that's been provided to 3 the court and your admission, the court hereby finds you guilty of a11 f1ve cause numbers 111 1222336, 1227019, 1227020, 1227021, 12271_11, all respectively styled the State of Texas versus Matthew C. Cotten. The respmtive enhancenents' are al_so found to be true. In the cause numbers, with the exception of 1227111, the Court hereby sentences you to 130 years in.5 the Institutional Division of the Texas Department of Crimina1 Justice 1511 Cause No. 1227111, theCourt hereby sentences you to 20 years in the Institutional Division of the Texas Department of Criminal Justice.'¥ (R.R. Vol#3,pp. 86, line 18 through pp.87,_1ine1-7). ' ' Section 12. 42(d), Texas Pena1 Code governs the pun1slment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parte Rich,5 194 S5. W. 3d 508, 511(Tex_.' Cr1n1. App.2006) IN explaining how Section 12 42(d) operates, the Court 6f Criminal Appeals have consistently held that the State must present evidence which supports the enhancement allegations contained in _t3he indictnent. This is because, 11_`` the proof at trial fails t6 correspond with the enhancement allegations, the punish- ment can 59n0t be legally enhanced. Cole V. State, 611 S.w.2d 79, 80(‘15'ex. Crim. App., - 1981); 1112ell_ V. State, 119 S.W.3d at 806('1_"e'x. App. 2006); Jordan V. lState, 256 s.w.ad 290, 293('rex crim. App. 20031. ' ~ 5 ‘ ``*Here, in applicant's case now before the Court of Criminal Appeals the record 55 551 5 hearing the State only asked the court to_ take judicial shows that at thejj " . notice of the presentence investigation report which did not contaim5 any evidence of any prior felony convictions. (R.R. . Vol#3,pp.7, line 6 through pp.8, line 1_.-15) Thus, the record clearly shows that the State presented no evidence to support the enhancement allegations. Consequently, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the 5 findings of 5the trial court should be overruled and applicant's sentence set aside and remanded back tothe trial court for a new plmishment hearing. In ground number two, applicant argued that his sentence of thirty years is void because the State presented "no evidence to support the enhancement allegations . required by Section 12. 42(d), Texas penal lCode, thereby denying him due process _» \mder the State and Eederal Constitution. . » In ground number three, App1icant argues that he was denied due process and due course of law when the State presented "no evidence" to support the enhancement allegations as required by Section 12 42 (d), Texas Penal Code, thereby making his thirty year sentence vOi§. - State's Reply 1'0 petition _For Writ Of Habeas Corpus 1 `` 1 , 1 "The record herein 1a not totally devoid of evidentiary support for enhancing the~applicant's sentencing range." (see, State 5 Reply,pp,§) § ',5, ?; lmra specif:ica``lly, the district attorney argues that there is sms evidence v to support the enhancement allegations based upon (1) "'I‘he applicant entered a1 , ;-1._ judic1a11;f confe 4;1on admitting to all of the allegations in the indictment, including the enhancement and? habitual allegations; and (2) "The applicant waived"his right to the appeamce, confrontation and cross-eilamination of witnesses, and consented to ora1 and written stipulations¢of evidence." (State's Reply, pp.5). : ' ``1 " |."l1 31:‘ However,¢ the district attorney failed to address applicant's constitutional - .4-1". question§ of law and fact regarding applicant's claim that the State presented '.'no 1 evidence" to support the essential elements of the enhancement paragraph as required .. by Section 12. 42(d)``, lIq'ex:-is Fenal Code; Article 1 15, Texas Go_de of Criminal Procedure; and due process under the Fifth and Fourteenth Anendnent of the United States Consti- tution. (State' s Reply, pp.__5-6). " App1icant maintains that proof of prior felony convictions requires more_' than (1) applicant's judicial confession admitting to all of the allegations in the indictment,' and (2) applicant's waiver of his right to the appearance, confrontation _a``nd cross- examination of witnesses." This is bmause the courts have long held that in all criminal prosectutions regardless of the plea or whether the punisl'm\mt is assessed by the judge or the jury, in no event shall a person charged with a crimina_l``f.§‘- offense be convicted upon his plea without sufficient evidence to support the same. Article 1 15, Texas dode Of Criminal Procedure; Stone V. State,919 S.W.2d 424, 426 (Tex. crim. App. 1996); Messer v. stace, 729 s.w.zd 694,698('rex.cr1m.App.1986);stokes v. Procunier, 744 é,.zq``;at.¢zas; ramon v. louisviue``, 362 n.s. 199, ao s.cr.'1624(1``97a)...~ / _1 ' el Furthermore, proof of prior convictions contained within the presentence inves- tigation report is inadmissible as proof of a final conviction where the P.S.I. report did not contain certified copies of prior judgment of convictions against the appli- cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex. Crim. App.1996). Likewiso, in order for a stipulation to be considered as evidence where the plea is before the court, the state must introduce a copy of the judgment and sentence in each case for enhancement purpose SeecMesser, 729 S.W.2d at 698; Stone, 919 S.w.2d at 426; Ex parte
Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513. ‘ ~' ~ 1 Here, in'iiappli"cant's case new before the Court of Criminal Appoale"the record shows that the district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial ares ». `` *The applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancmont and habitual allegations. _ *'Ihe applicant !"waived his right to the appearance, confrontation and cross- ownination of witnesses, and consented to oral and written stipulations of evidence. (See: State's Reply, pp.5). ' ‘ ' ' In conclusion, the record clearly shows that the State denied applicant due process and due ccm_§"}seiiof law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas penal code; mine 1.15, rees code or criminal Procedure; and the Fifth and Fourteench Amendnent of the united States Constitution. Consequently, no rational trier of fact could have found the essential elements of the enhance- mont allegations true beyond a reasonable doubt. ‘ mbeascourt!iemorand\m/Findings In addressing ground number two and three, the trial court erred in stating z "The Court finds that the applicant's judicial confession provides some evidence supporting the enhanc@xent of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, ppa 1). Applicant’s Tr_av_orse‘l'o The Trial court's Findings Applicant now contends that the court of Criminal Appeals should not adopt the trial court's rcommondation that ground two and three be denied based upon the trial court's finding that;-'-"applicant's judicial confession (standing alone) provides some evidence supporting the enhancement of his sentencing range to habitual offender v status." Applith maintains that his judicial confession standing alone*» is not enough to support proof of~ a final i_"ironviction, where the F.S.I. report did not contain _ certified copies of prior judgment of convictions against him. S_ees§ Garc\e 7;. State,
930 S.W.2d 621, 623(Tex.`` App. 1996); Ex parte
Brown, 757 S.W.2d at 368; Ex parte Rich, 194 s.W``.3d at 513. f l . l . if":~.. The '1mca__s" court of criminal Appeals have long held that in all criminal prosecu- tions regardless of the plea or whether the punishment is assessed by the judge or the jury, in ``no event shall a person charged with a criminal offense be convicted upon his plea without sufficient evidence to support the same Articlo j1. 15, Texas Code of criminal Procedure; Stone V``. State, 919 S.w.2d 424. 426('I'ex crim. App.``; 1996); Messer V. State,729 S.W.2d 694, 698(Tex crim.App. 1986).1.Ikewise, allegations of prior ' convictions contained within the presentence investigation report is inadmissible as proof of a final conviction, where the P.S.I. report did not contain certified copies iof prior judgments of convictions against the applicant.
Garcia, 930 S.W.2d at 623. ’ In smary, the State must introduce a copy of each judgmnt of conviction, in each case used for enhancement purpose. Seex Section 12. 42(d), Texas Penal code; Terrell V. State,
228 S.W.3d 343"at 346; Ex parte
Rich, 194 S.W.3d at 513. Here, in applicant's case now before the Texas court of criminal Appeals, the record shows that the State prosecuting attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#2,pp.11‘4, line 16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1--15) Furthermore, there were "no evidence" of prior convictions contained within the P.S.I. report. , i';Thus, based upon the record, no rational trier of fact could have found the enhancement allegations true beyond a reasonable doubt. In conclusion, the recommendation of the trial court must be overruled and applicant's case remanded back to the trial court for a now punishment hearing. " " .\i emma manor motive _ In ground number four and five, Appli ant argued that Detective Anderson violated his Miranda Ri___ght guaranteed to him by the fifth and fourteenth amendment of the United State constitution when he failed to road the full "Miranda Warning" to him as required _ by Article 38522 § 3(a)(2), Texas code of criminal Proceedure. ' r‘. _ y In ground number five, Applicant arg; ``od that Detective Andorsan violated his due process right»under the fifth and fourteenth amendment of the I!ni='ted_ States Constitu- tion when he threatend physical harm to him and his property _i_n order ita coerce him to give a solf_- incriminating statement against himself. " § . ln addressing ground number four and five, the district attorney argued that ' relief should be denied because: ' _ . ., :'. __:f_' »_ § "The applicant's Miranda and due process grounds for relief are'i§ nat cognizable '- ‘, because these same complaints wore rejected on direct appeal." _(Seo; _Stato's Reply, ppos)o n ' ‘ ' _‘.J_, ``. `` i _ However,_ the district attorney has failed ta address applicant's constitutional questions of law an_d fact regarding additional evidence that is being presented for 1 the first time in this foregoing habeas corpus petition that was not presented on_ ' direct appeal. 'I'hi_s evidence creates an oxcepti_on to the general rule that claims raised and rejected on direct appeal are nat cognizable an habeas corpus. Ebr parte Schuessler, 846 _S. W__._Zd at 852(_.'!’}?.:: Crim. App.1992); Ex parte Goodman',
816 S.W.2d 383, 385(Tex. Crim, _App. 1991); Ex parte lRussoll,
738 S.W.2d 644, 646(‘Imr.__ crim.App. 1986). v _"f _~ __ ' ." In addressing ground number four and five, the trial court erred in stating: "The Court finds th_at the applicant's miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorand\mw?‘inding, ! pP- 1)~ _ `` €~_' y Applicant's Traverse 'ro 'nze Trial szrt’a Findings l Applicant now contends that the Court of Criminal appeals should not adopt the trialé=‘. court'e recommendation that ground four and five he denied based upon the trial court's finding thata ' "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Memorandum / Finding, pp.l). Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procedural bar, because his claims nov before the court are fundamental constitutional claims that are based upon nev theories that were not presented on direct appeal. Ex parte Good- "man, 816 en 2a 383_, 385(Tex. crim. App. 1991); tx parte main 738 s.w__.2d §44("1'@¢. Crim. App.l986); Ex parteSchuessler, 846 S.W.2d at 852(‘!#@:. Crim. App. 1992). The law is clear§ although habeas corpus is traditionally unavailable to review inatters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking ~ fmrdmental constitutional rights may be raised. Ex parte Schuss|_§a``r, 846 S__.W.2d at 852 (‘Dex. Crim. App._ l992)(granting relief due to lack of jurisdiction); fur parte Russell,
738 S.W.2d 644('Pex.. Crim. App 1986)(granting relief due to improper admission of void prior danviction): ax parte Bravn, 702 s.w.2d lae(m crim.App. 1982)(granting relief do to the improper excusal of a venirenmber): Ex parte Clark, 597 S.W.2d 760(Tex Crim.App.1979)(granting relief due to the trial court's failure to apply the. law to ' the facts of the case). `` § `` Here, in applicant's case now before the Texas Court of Criminal Apneals, the record shows that on direct appeal Cotten argued that the trial court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda v. Arizona, and his statutory rights under Artiole 38.22 of the Texas Code of Criminal Procedure. (See¢ opinion of the Eight District Court of Appeals' pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he nov argues that -z"Detectiva Anderson violated his Miranda night guaranteed to him by"the Fifth and Fourteenth moment or the united States Constitution when he failed to read the "full miranda warning" to him as required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum of lav, pp. 14). w lV After comparing applicant's ground nulnber four in his habeas'corpus petition to applicant's claim3 nuinber "one on direct appeal it becomes clear that the claims are not the same, because applicant is now presenting a constitutional issue of fundamental error based upon a theory not alleged on direct appeal. Consequently, the trial court's _fin__ding_ that -"applican_t's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal"- must be overruled and the cause remanded back to the trial court for a new trial. ' .u,, l ``l,‘ t . . . . "i ., .e_?;j V ``j ‘ d j" .»`` '$. Lil"c'ewi``se', ja review of applicant's second claim on direct appeal shewe that he ``7 argued that his waiver of his statutory rights was not knowingly, intelligently, and ``F" voluntar1ly made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review " of applicant's fifth ground for review on his habeas corpus petition showe that he alleged that --"Detective Anderson violated his due process right under the Fifth and§ Fourteenth Amandment 5f the United States Censtitution when he threatened physical abuse to appl1cant and his property in order to coerce him to give a self-incriminating statement against himself. (See: Applicant‘s Memorandum of Law, pp.l_‘?) j "'.: "' i v . ‘ . 1 l li .. v,_ § _ .» . § " ' ' : ii ln`` simmary, after comparing applicant's ground number five in his habeas corpus petition to applicant's claim number two on his direct appeal, it becomes clear that the claims are net the same because applicant is now presenting a constitutional issue ``of fundamental error based ilpen a theory not alleged on direct"appeal. Conse§uently, , `` the trial court's finding that -"applicant‘s Miranda and due process grounds for re- 4 ``lief are not cognizable because they were litigated on direct appeal"--lmlst be over- 'F ruled and the'case remanded back to the trial court for a new trial.`` " " musical In conclusion, the findings of fact and conclusion of law reconmended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause shc_§uld be reversed and remanded for a new trial based upon grounds lumber four and five. Appli- cant so waves-The cpurt. `` nespectfdlly suhmltted= lél¢a)¥§h§¥dc§§§€n No. 1826716 ‘ "¢ _ ‘ ' 2561 F.M. 2054 1 Tennessee Colony, Texas 75884 10 '~ »\L_L.~.. -=-'"1-: v gl- "., 5 . n v ‘ , \ » ’ wm k "~§~1 " Certificate Of Service I, Matthew Cctten,_ :Applicant, Pro se, do hereby certify that a@true and correct '1"_¢."‘ copy of this foregoing instrument has been served upon Steven w. Conder* Assistant _, District Atto_rne``y_, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed op this 25th day of February, 2015. - l ‘ ‘ . . ~§ _ 1 z >f ,.;'4 , `` - ‘ ' F » ' … 1 l 1 `` . , '. ; i``» f » y ‘ Applicant, pro ' zr .d ':'_l j \. ' ‘ ``.."_ 1 ; , ' ``;§ ~ " ".§ .``\'\ z ' `` ?`` " * 3``_ _ t'. , ; 1 '»H its ' " - , 425 .1:.§ 1 ,. y,, l‘ n ,z_ \ 11 .l;,``zzrrit No. c-432-60146’3``7‘5``~-31-2271'11"-A . nearest mohammad maurice conn - January 4, 201{:, Appiicant £'iied this foregoing writ of hames corpus ' , ~ ‘ alleging;: five constitutional melolations during the course of his tria.. court proceeding. " In grazind nuber m,`` Applicant contends that his sentence of twenty years in Cause No. 1227111D ¢ is i'-ilegal because the "Judment of Gomrictim By Court" and the "Record At Triai" shows that the trial court found only one enhance:nent paragraph true; thereby making his punishmt excessive. In ground homer ntvo, Applicant contends that his sentence of thirty years in Cause No. '1.227111D . is void because the State presented "No Evidence" to support the enhancement paragraphs alleged in the indictment, as required by Section 12.~_42(_¢1),l Texas Penal Code, thereby denying him due process under the Stati§:and Federal Con- stitution. In gra\md hunter three, Applicant contends that he was denied due process and due course of lew when the State preth "no evidence" to support the enhancemnt allegations as required by Section 12.42(d), Texas Penal Code; thereby making his thirty year sentence void. In ground nqu four, Applicant contends that Detective Anderson violated his "Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment,“.‘;``wh;en he failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2), Texas Code of Criminal Procedure. In ground elmer five, Applicant contends that Detective Andereon violated his ' "Due Process Right" under the Fifth and Fourteenth mendmant, when he threatened physical abuse to applicant in order to coerce him to give a self-incriminating statement against himself. > ..‘7_¢",. \;``. ._,,,‘ - Argmnent And Authorities Ground Nlmzher' One In ground number one, Applicant argued that his *sentence of twenty years in Cause No. 122711.,1D is illegal because the"Judgth of ConViction By Court" ``and the "Record At Trial" shows that the trial court found only one enhancement para-» graph true, thereby making his punishment elmessive. stata's``aeply no Petition ear writ or Habeas corpus In addressing ground_,;number one, the district attorney argued that relief should be denied simply because --"the indictment alleged two prior felony ccmvic:``tionsl a ' 2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 5 burglary of a habitation. The trial court found these prior convictions to be true. `` year sentence is within the statutory range for a habitual felony offender. As such, his sentence is not soccessive." (See.- State’s Reply 1b Petition For Writ Of Habeas Corpus, pp.4). However, the district attorney failed to address applicant's constitutional questions of law and fact regarding the applicant's claim that the record affirmatively reflects that his sentence le illegal because the "Judgment ar conviction ay'court" ana the "Reporters Record at trial", both affirmtively reflects that-the trial court only found one enhancement paragraph true, thereby acquitting applicant of the ;habitual offender allegations. (See: Judgment Of Comriction By Court, Appendix No. 1-5, and R.R. Vol#2, pp. 109 through pp. 114).» “``¢'~..=' . , . Applicant maintains that because the "dudgment of Conviction" and the Reporter's n Record"_ at trial shows that applicant plead "True" only once during the entire course of trial, and the trial court found only one enhancement paragraph to be true (See: R.R. Vol#2iPp.109 through pp.114) there is no evidence contained within the record to support the trial court's habitual offender finding. Therefore, the habeas court's findings is not entitled to the presumption of correctness under28 U.S. C. §2254(e)(1). mbeascourtnennrand\m/Findings 0n February 2, 2015, the habeas court issues ist' "Die¢ibrandum / Findings" adopting the district attorney s interpertation of the events on all five constitutional claims without addresssng applicant's questions of law and facts `` 'r-v»s t `` :,1» _ In addressing ground number one, the trial court simply stated without any `` decussion--"'Ihe Court finds that the applicant's thirty year sentence is 'not ex``_i:essive. 'I“ne court recommends that this ground for relief be denied." (See: Memorandum / Findinge, PP¢l)» " 4 ' -1::' - \:; Applicant's Traverse 'Ib The Tr__ial omart's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the - trial court's recommendation to ground nmnber one based upon the fact that the trial court's findings is contradicted bly the record of evidence at trial which shows that the trial court only found one enhancement paragraph to be true. (See: Judg- ment of convictipn "By. court ansl:;(n.n. v``o,l#z,pp.log through pp.114); A review of the "Judgment of Conviction By Court" at trial clearly shows that applicantplead "True" to only one enhancement paragraph and the trial court found only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiwer of JUry Trial"). L_ikewise, a reviewof the punishment hearing shows that the State never presented any evidenceto support the enhancement allegations thereby making the trial court's @ntence of twenty years void. Moreover, the record shows that the district attorney only asked the trial court to take judical notice of the _ presentence investigation report and then rested. (R. R. Vol#3,pp.7, line 6 through pp.8, line 1-15)'. Nevertheless, without any evidence beingpresented at trial to support the enhancement allegation, the trial court illegally concluded: ‘;§‘Based upon the foregoing evidence . and the information that's heen provided‘to 3 the court and your admission, the court hereby finds you guilty of all five cause numbers in 1222336, 1227019. 1227020, 1227021, 1227111, all respectively styled the State of Texas versus Matthew C. Cotten.Thc respective enhancements are also found to be true. In the cause nmnbcrs, with the conception of 1227111, the court hereby sentences you to 30 years in the Institutional Division of the Texas Departmnt of CrimineL Justicc. I~n Cause No. 1227111. theCourt hereby sentences you to`` 20 years in the Institutional Div_ieion of the Texas Department of Criminal Justice." (_R.R. Vol#B,pp.B€,line 18 through pp.87,1ine1-7). ' Section 12 §2(§), 'chas penal Code governs the punishment for habitual felony offenders, and requires the State to present evidence of two prior felony offenses inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S.W.BS 508, 1 511(Tex. Crim. App.2_006). IN explaining how Section 12.42(d) operates, the Court of Criminal Appcals havc consistently held that the State must present evidence which supports the enhancement allegations contained in the indictment. 'i?_\is is because ii’ the proof at trial fails to correspond with the enhancement allegations, the punish-§ ment can not bc legally enhanced. Cole V. State,
611 S.W.2d 79, 80(Tex Crim. App. 1981); Mizell V._ State, 119 S. w.3d at SDS(Tex. App» 2006): Jordan V. State,l
256 S.W.3d 280, 293('rwi. Crim. App. 2008). ‘ Here, in applicant's case now before the Court of Criminal Appeals the record shows that at thc v hearing the State only asked the court to take judicial notice of the presentence investigation report which did not contain€_‘j, any evidence of any prior felony cStone, 919 S.W.2d at 426 ; Ex parte
Brown, 757 S.W.2d at 368; Ex parte Rich, 194 s.w.zd at 513. _~:e.,__{ _ § `` ' » §§ 111 § ' ' 1 Here, in applicant's case now before the Court of Crimin31 Appeals the record - shows that the`` district attorney admitted that the only evidence supporting the enhancing of applicant's punishment at trial ares § ~ " 11 *'Ihe applicant entered a judicial confession admitting to all of the allegations in the indictment, including the enhancement and habitual allegations. _ x . »,``(' v *The applicant waived his right to the appearance, confrontation and cross- h examination of witnesses, and consented to oral and written stipulations of evidenced (See: State's Reply, pp.5). ' `` `` ' In conclusion, the record clearly shows that the State denied applicant due process and due couiise of law when the district attorney presented "no evidence" at trial to support the enhancement allegations as required by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth and Fourteenth§ Amendment of the United States Constitution. Consequently, no rational trier of fact could have found the essentis\ elements of the enhance-'- ment allegations true beyond a reasonable doubt. In addressing ground nimmer two and three, the trial court erred in stating : "The Court finds that the applicant's judicial confession provides scans evidence supporting the enhancement of his sentencing range to habitual offender status. The Court recommends that grounds for relief be denied. (See: Memorandum / Findings, pp. 1) Applicant's Traverse mo 'Iho-"l‘rial Gmart's Findings App1ic_ant now contends that the Court of Criminal Appeals should not adopt the trial court's recommendation that ground two and three be denied based upon the trial court's finding that--"applicant's judicial confession (standing alone) provides some _ evidence supporting the enhancement of his sentencing range to habitual offender statua." Appiicant maintains that his judicial confession standing alone '<'is not enough_`` to support proof of a final g'conviction, where the P.S.I. report did not contain `` certified copies of_: prior judgment of convictions against him. Sees Garci_a V. State,930 S.W.2d 621, 623(Tex App. 1996); vt parte Brown, 757 S.w.Zd at 368; vc parte _
Rich, 194 S.W.3d at 513. The 'Iw:aa Court of criminal Appeals have long held that in all criminal pr_e_secu- tions regardless of the plea or whether the punishment is assessed by the judge or the jury, in ``no event sha11 a person charged with a_ criminal offense be convicted upon his plea without sufficient evidence to support the same. Article 1.15, ‘I‘e)ms`` Code of Criminal Frocedure; Stone V. State,
919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer v. state, 729 s.w.za 694, egsc'rex.crim.npp.1936).1.1)¢¢11¢139, allegations or prior ' convictions contained within the presentence investigation report is inacm_\iseible as proof of a final conviction, where the P.S.I. report did not contain certified copies of prior judgments of convictions against the applicant._
Garcia, 930 S.W.2d at 623. In smary, the State must introduce a copy of each judgment of conviction, in each ' case used for armonth purpose. Seea Section 12 42(d), Texas Penal code; ferrell V. State, 228 S.w.$d 343 at 346; vc parte Rich, 194 S.w.3d at 513._ Here, in applicant's case now-before the Texas Court of Criminal Appeale, the record shows that the State prosecuting attorney only asked the trial court to take judicial notice of the presentence investigation report and then rested without pre- senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp. 1§\4, line 16-21) and (R.R. Vol#$,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were "no evidenc~‘-au of prior convictions contained within the P.S.I. report. iié}Thus, based upon the record, no rational trier of fact could have found the enhancenxent allegations true beyond a reasonable doubt. In_ conclusion, the recommendation of the trial court met be overruled and_:_applicant’s case remanded back to the trial ._ ;court for anew `` punishment hearing. Grmmdmower¥mrand Five‘ In,-ground_ number four and five, Applicant argued that Detective Anderson violated his Miranda Right guaranteed to him by the fifth and fourteenth amendmnt of the United ' State Constitution when he failed to read the full "Miranda Warning" to him as required by Article 38.221§ 3(a)(2), Texas Code of Criminal Proceedure. ' ' In ground number five, App1icant argued that Detective Andarson~ violated his due process right under the fifth and fourteenth amendment of the United States Constitu- tion when he threath jtphy_sical-- harm to him and his property in order to coerce him to give a self-lncriminating statmant against himself. ' \ ' ,-;g. , scate's Reply,'.mvatitijm For writ cfr leases corpus 1 1 l In addressing ground number four and five, the district attorney argued that relief should be denied because: ' ' ~ ‘ ‘ ‘ ‘ " "The applicant's Miranda and due process grounds for relief ‘are not izable because these same complaints were rejected on direct appeal." (See, State,$ Reply, However, the district attorney has failed to address applicant's constitutional 1 questions of law and fact regarding additional evidence that is being prcsr~.\,x,n:¢..=dm for the first time in ,thié.foregoing habeas corpus.petition that was not presented on direct appeal. 'Ijhie evidence creates an exception to the general rule that claims raised and rejected on direct appeal stare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852('1‘£:~:. ``Crim. App.1992); Ex parte``Gooman, 816 S.w.Zd 383, 385(Tex Crim, App. 1991); EX parte Russell, 738 S.W.ZG 644, 646(Tex Crim.App. ' 1986). ' !n addressing ‘,|gro\md number four and ..five,_ the trial court erred in,stating: "The Court finds that the applicant's miranda and due process grounds for relief are not lmizahle because they were litigated on direct appeal." (See: Memorandum/Finding, Pp- 1) Applicant's Traverse To The Trial Court's Findings Applicant now contends that the Court of Criminal Appeals should not adopt the trial court's reconmendation that ground four and five be denied based upon the trial court's finding that: ‘ V, ' , 4 ~ "applicant's Miranda and due process grounds for relief are not cognizable because they were litigated on direct appeal." (See: Dienprand\m / Finding, pp.l) `` Applicant maintains that his claims presented in ground numbers four and five of the foregoing habeas corpus petition should not be subjected to procwural bar, l v because his claims now before the court are fundamental constits_i.tional claims that l are based upon new theories that were not presented on direct appeal. Ex parte Good- - man,816 S.W.2d 383, 385(Tex. Crim. App. 1991); Ex parte Russell,
738 S.W.2d 644(Tex Crim. App.1986); m parte
Schuessler, 846 S.W.2d at 852('I'ex. Crim. App. 1992) The law is clear, although habeas corpus is traditionally``;»;€ unavailable to review matters which were raised and rejected on appeal, claims involving jurisdictional defects or invoking fmdamental constitutional rights may be raised. Ex parte Schussier, 846 S_'.w.2d at 852 ('I'ex. Crim. App. 1992)'(granting refilief due to lack of jurisdiction); Ex parte:Ru'ssell,738 S.W.2d 644('l‘ex. Crim. App. 1986)(granting relief d'ue to improper admission of void prior conviction); fcc parte Bravo,702 S.W.2d 189(*I'ex Crim.App 1982)(granting relief do to the improper excusal of a veniremember)c Ex parte Clark, 597 S.W.2d 760(Te``x. `` crim.App_.lQ?Q)(gran_t-,ing relief due to the trial court's failure to app1y the law to ‘. the facts of the case) ' `` Here, in applicant's ease now before the Texas Court of Criminal Appeals, the record shows that on direct'appeal Cotten argued that the trial ";;‘court erred in failing to suppress his first statement because it's procurement violated his constitutional right under Miranda V. Arizona, and his statutory rights under Article __38. 22 of the 'Iexas Code of Criminal P¢=“‘.oeedure. (See: Opinion of the Eight District Court of Appeals, pp.4). However, a review of applicant's habeas corpus claim now before the Court of Criminal Appeals shows that he now argues that _-"Detective Anderson violated hits Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the tmited States Constitution when he failed to read the "full miranda warning" to him as required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memrand\m of Law, pp.14). ' After comparing applicant's ground number four in his habeas corpus petition to applicant's claim number ¢~?§l'one on direct appeal it becomes clear that the claims are not the sme, because applicant is now presenting a constitutional issue of fundamental error ' based upon a'theory not alleged on direct appeal.' Conse@ently, the trial court's "findin'g'~ that --"applicant's Miranda and due process grolmds for relief are not cognizable because they were litigated on direct appeal"-- must be overruled and the cause rma_ndsd back to the trial court for a new trial. Likewise,`` a" review of applicant's sacond claim on direct appeal shows that he argued that his uaiver of his statutory rights was not knowingly, intelligently, and " voluntarily made. (See: Opinion of the Eight Court of Appeale‘¢ p``P-S). However, a review of applicant's fifth §round for review on his habeas corpus petition shows that he alleged that -“Detective Anderson violated his due process right under the Fifth and Fourteenth Amandment of the united States Constitution when he threatened physical abuse to applicant and his property in order to coerce him to give a self-incrini nating statement against himself. (Seel Applicant's Memorandum of Law,' pp.l?). `` ‘ In s\mmary, after comparing applicant's ground number five in`` his habeas corpus z petition to applicant's claim lamar two on his direct appeal,' it because clear that " the claims are not the same because applicant is now presenting a constitutional issue _ " of_ .__-.';fundamental error based upon a theory not alleged on direct``appeal. Consequently, tithe trial court's finding that ``-~"applicant' s Miranda and due process grounds "for res " lief are not cognizable because they were litigated on direct appeal"--must be over- ' ruled and the case remanded back to the trial court for a new trial. ' ' ' ' cmclusion In conclusion, the findings of fact and conclusion of law recamnended by the trial court must be overruled and applicant granted a new punishment hearing based upon grounds one, two and three. Or in the alternative, applicant's cause should be reversed and remanded for a new trial based upon grounds number four and five. Appli- . cant So Hoves The Court. Respect£ully Submitted; assume N°- umw 26611F.M.= 2054 Tennessee Colony, Texas 75884 10 d rrrrrrrr "cenifieaee or semeé I¢ !Dtthew Cotten, Applicant, Pro se, do hereby certify that a true and correct ~ copy of this foregoing instrument has been served upon Steven W. Conderj, Assietent District Attorney, 401 W. Belknap, Fort worth¢ Texas 76196-0201. Execut,ed on this 25th n day of Fehmary, 2015. " Sigm ____ Matthew Cotten No. . 1826716 _ Applicant, Pro sei;.,»,'?f:_``~ `` 11
Document Info
Docket Number： WR-82,830-02
Filed Date： 3/3/2015
Precedential Status： Precedential
Modified Date： 9/29/2016