Rivera, Eliseo Jr. ( 2015 )

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Texas Court of Criminal Appeals May 7,2015
Attn: Mr. Abel Acosta, Court Clerk
P.O. Box 12308, Capitol Station
Austin, Texas 78711
RE: Ex Parte Eliseo Rivera, Jr., Trial Cause No. CR-09E-061A,
Appellate No. 07-09-00332-CR
Dear Mr. Acosta,
Enclosed, please find Applicant's Rebuttal to the Trial Court's
Findings of Fact, and Conclusions of Law, along with Applicant's
Request for An Evidentiary Hearing, and Motion Requesting this
Honorable Court to Order the Texas Rangers to Conduct a Criminal
Investigation in re'gards to the prosecution's misconduct.
Please file Said Documents among the papers in the above styled,
and numbered cause. Furthermore, please perform the proper proce
dures so that, a time, and date may be set for it's hearing.
In addition, Applicant has enclosed a self-addressed stamped
envelope, and two copies of this cover letter so that, if you could
please stamp one copy, and return to Applicant to verify your
receipt.
Applicant sincerely appreciates your assistance.
Best Regards,
y^/^M
7"
Eliseo Rivera, Jr. T.D.C.J. #1617277
Dalhart Unit
11950 Fm. 998
Dalhart, Texas 79022
Trial Cause No. CR- 09E--061A
Appellate No . 07 -09 -00332--CR
Ex Parte In the Texas Court of
Eliseo Rivera, Jr § Criminal Appeals of
§ Austin, Texas
Applicant's Rebuttal to the Trial Court's Findings of Fact and
Conclusions of Law And Request for An Evidentiary Hearing
To the Honorable Justice(s) of Said Court:
Comes Now, Eliseo Rivera, Jr. T.D.C.J. #1617277, hereafter
Applicant in the above styled, and numbered cause, and files this
Rebuttal, and Request pursuant to the Texas Code of Criminal Proce
dure, Article 11.07(3)(d), and the Texas Rules of Appellate Proce
dure, Rules 10.(1)(2); 33.1, and 44.2.
In support of the foregoing Applicant presents the following
Facts:
Initially, when Applicant submitted his Habeas Corpus Art. 11.07
along with Memorandum of Law (Memo.), the trial court upon it's re
view concurred with Applicant that, there did exist issues of fact
that needed to be resolved. Thereafter, the trial court issued it's
"Designation of Controverted, Previously Unresolved Facts Material
to the Legality of Applicant's Confinement"
II.
The trial court upon receiving both trial, and appellate counsels'
Affidavits. Adopted both counsels' answers, and. ruled that both coun
sels' evasive, and erroneous answers satisfied the trial court's
questions. Thereafter, the trial court filed it's Findings of Fact,
and Conclusions of Law, dated March 25,2015.
III.
Applicant contends that after having extensively reviewed the
trial court's Findings of Fact, and Conclusions of Law. It is clear
that, trial court's decisions "resulted in decisions that are based
on an unreasonable determination of the facts in light of the evi
dence presented during trial proceedings", and in Applicant's Art.
11.07, Memorandum of Law. In addition, there are substantial fact
ual questions that persist regarding the validity of Applicant's
conviction in his Art. 11.07, Memo, which have not been resolved.
Therefore, Applicant will address those issues as they appear in
Applicant's Memo.
IV.
In the trial court's Conclusions of Law dated March 25, 2015, #14,
It states as Follows; The State did not engage in Prosecutorial
Misconduct. Applicant contends that the trial court as arrived to
an erroneous conclusion regarding the prosecution's performance during
trial. Applicant does not question the integrity of the trial court.
But, with all due respect, Applicant questions, how can trial court
arrive to the conclusion as it did in #14. If trial court never posed
any questions or requested any information from the prosecution in
regards to the legality of the anonymous 911 recording, the initial
stop of Applicant or Applicant's previous conviction from where trial
court could draw it's conclusions. Therefore, for the aforementioned
reasons Applicant will now demonstrate by clear, and convincing evi
dence that Applicant's conviction is invalid due to the prosecution's
unconstitutional actions in Ground One, Points of Error One, Two, and
Three.
V.
In Applicant's Art. 11.07, Ground One, Applicant alleges Prosecu
torial Misconduct, specifically in Point One, Applicant alleges that
the prosecution enfringed upon Applicant's Constitutional Amend.
Rights when the prosecution failed to show how the anonymous caller's
911 recording to police was admissible to prosecute Applicant with
during trial. Clearly, the 911 recording was the centerpiece of the
State's evidence against Applicant. With that said the prosecution
desperately attempted to proof to the trial court, and the jury how
the 911 tape recording was legally admissible with which to prosecute
Applicant by citing Castillo v. State, cite unknown, as the authori
tative case. But, as this Honorable Court notices the prosecution
failed to provide a cite, which denied Applicant of his right to ex
amine Said case, and verify if it did apply to the situation at hand.
(See Memo. p. 4-9). Therefore, the State failed to provide evidence
of any degree to indicate that the "911 tape recording" was admissible
VI. '
In addition, due to a timely objection by the defense, when the
prosecution introduced the inadmissible "911 tape recording", which
was promptly overruled by the trial court. And, the fact that the
defense filed it's motion for a new trial, which trial court denied
by Operation of Law. This clearly entitled Applicant to an Evident
iary Hearing on the foregoing issue. (TRAP ,. Rules- -33 .1; :44:. 2).. While
on the other hand, Applicant has cited Crawford v. Washington, 124
S. Ct. 1354 (2004); Coy v. Iowa, 108 S. Ct. 2798, 2802 (1988), and
Supreme Court case, Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009).
Which clearly states that on June 25,2009, the U.S. Supreme Court
expanded the scope of the defendant's constitutional rights by de
claring that a defendant whose conviction is significantly based on
an anonymous caller's recording or other such evidence. This places
the burden on the prosecution to produce the anonymous 911 caller
during trial. So that, Applicant may exercise his Sixth Constitu
tional Amend. Right to cross-examine the caller to expose any flaws.
(See Memo. p. 24-26). Therefore, pursuant to the foregoing the pro
secution's failure to produce such critical witness rendered the 911
tape recording.as inadmissible, which rendered Applicant's convic
tion as void. Applicant has clearly demonstrated that critical
questions of constitutional magnitude remain unresolved. Which re
quires that an Evidentiary Hearing be entertained in order to deter
mine the legality of Applicant's confinement. Moff v. State, 131
S.W.3d 485, 489 (Tex. Crim. App. 2004); United States v. Vasquez,
7F.3d 81, 84 (5th Cir. 1995) .
VII.
In addition, Applicant has clearly demonstrated by the record,
and cited statutes, and State, and Federal case law that Officer
Jimenez's initial stop of Applicant was illegal. (See Memo. p.5-7).
Furthermore, Applicant contends that the prosecution has drastically
failed to prove otherwise. It is established that an anonymous tip
usually will justify the initiation of a police investigation.
Davis v. State, 989 S.W.2d 859, 863 (TexApp.-Austin 1999) citing
Clemens v. State, 605 S.W.2d 567, 570 (Tex. Crim. App. 1980). How
ever, an anonymous tip or telephone call alone rarely will establish
the requisite level of suspicion necessary to justify an investi-
gation detention. Id. 989 S.W.2d at 863; citing Alabama v. White,
496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). The
present case is like that in McAfee v. State, 204 S.W.3d 868, 869
(Tex.App.-Corpus Christi 2006), the record reveals that the officer
conducting the initial stop testified that he observed appellant's
vehicle traveling in excess of the posted speed limit. Therefore,
he stopped appellant for speeding. Thereafter, he further testified
that, prior to the stop he knew appellant was suspected of being
involved in an illegal drug transaction just prior to the stop.
During the stop, the officer discovered that appellant had no proof
of insurance for his vehicle. A pat-down of the other occupant re
vealed that the passenger was carrying cocaine that was later ad
mitted at appellant's trial. Unlike the present case, where the
officer conducting the initial stop of Applicant testified that,
when he observed Applicant he knew Applicant was a suspect in a
possible kidnapping of a juvenile. (See Memo. p.5). The officer
further testified that, the sole reason he stopped Applicant was to
"talk to him and check if the allegation was true". (See Memo. p.14)
The officer never testified that Applicant violated any traffic laws
as in McAfee, to give rise to reasonable suspicion for a stop. (See
Memo. p. 13). In fact the officer realized that, the initial alle
gation of kidnapping of a juvenile was false that, he decided to not
even mention it on his "Probable Cause Affidavit", as the reason why
police initially stopped Applicant. (See Memo. p.7; also see State's
Exhibit No. 3, found in RR,V.4of6,p.71,L.4-6, & L.20-22). Furthermore,
in appellate counsel, David Martinez's Affidavit dated February 13,
2015, appellate counsel concurs with Applicant's contention that Appli
cant was initially stopped by police without a legal reason. This, fact
5
is corroborated by appellate counsel, when he declares under penalty
of perjury in his Affidavit that, the reason appellate counsel did
not question the validity of the initial detention (stop), was be
cause, up to that point no offense had been committed. Therefore,
affirming Applicant's contention that, to this point no one has been
able to provide a legal reason why Applicant was initially stopped.
Therefore, Applicant has clearly demonstrated that critical questions
of constitutional magnitude remain unresolved. Which requires that
an Evidentiary Hearing be entertained in order to determine the
legality of Applicant's confinement. T.R.A.P., Rule 33.1; Moff v.
State, Supra; United States v. Vasquez, Supra.
VIII.
In trial counsel, Chris Hesse's Affidavit which was filed on
February 13^2015, he tries to justify police's initial illegal stop
of Applicant by declaring under penalty of perjury that, because the
officer testified that, "about one minute passed between him (offi
cer) , receiving the dispatch and him (officer), locating the suspect
vehicle". (See trial counsel's Affidavit p.3). Applicant contends
that trial counsel is mistaken, Applicant has searched and found no
State Statute or State or Federal case law that authorizes the legal
theory that, once an officer receives a dispatch for an offense.
And, if the officer locates the suspect in a short time this gives
rise to a reasonable suspicion stop, and erroneously cites Gurrola v.
State, 877 S.W.2d 300, 302 (Tex. CRim. App. 1994). Trial counsel's
reliance on Gurrola, to legitimatize the officer's illegal stop of
Applicant is misplaced. Gurrola, states in part; It is settled
law that there must be a "reasonable suspicion", by the detaining
officer that some activity out of the ordinary is occurring or had
is corroborated by appellate counsel, when he declares under penalty
of perjury in his Affidavit that, the reason appellate counsel did
not question the validity of the initial detention (stop), was be
cause, up to that point no offense had been committed. Therefore,
affirming Applicant's contention that, to this point no one has been
able to provide a legal reason why Applicant was initially stopped.
Therefore, Applicant has clearly demonstrated that critical questions
of constitutional magnitude remain unresolved. Which requires that
an Evidentiary Hearing be entertained in order to determine the
legality of Applicant's confinement. T.R.A.P., Rule 33.1; Moff v.
State, Supra; United States v. Vasquez, Supra.
VIII.
In trial counsel, Chris Hesse's Affidavit which was filed on
February 13,2015, he tries to justify police's initial illegal stop
of Applicant by declaring under penalty of perjury that, because the
officer testified that, "about one minute passed between him (offi
cer) , receiving the dispatch and him (officer), locating the suspect
vehicle". (See trial counsel's Affidavit p.3). Applicant contends
that trial counsel is mistaken, Applicant has searched and found no
State Statute or State or Federal case law that authorizes the legal
theory that, once an officer receives a dispatch for an offense.
And, if the officer locates the suspect in a short time this gives
rise to a reasonable suspicion stop, and erroneously cites Gurrola v.
State, 877 S.W.2d 300, 302 (Tex. CRim. App. 1994). Trial counsel's
reliance on Gurrola, to legitimatize the officer's illegal stop of
Applicant is misplaced. Gurrola, states in. part; It is settled
law that there must be a "reasonable suspicion", by the detaining
officer that some activity out of the ordinary is occurring or had
occurred, some suggestion to connect the detained person.with the
unusual activity, and some indication that the activity is related
to the crime. (See trial counsel's Affidavit p.2). In the present
case, the detaining officer testified that when he observed Appli
cant's vehicle, he fallowed it, and regardless to the fact that the
officer did not testify that Applicant violated any traffic laws,
as in McAfee, he still went ahead and made an illegal traffic stop.
Pursuant to the nature of the call, he wanted to check if the call
was true and correct, and for no other reason. (See Memo. p.14).
Unlike in McAfee, even though the officer testified that he knew
that Appellant had just been involved in criminal activity. The
officer testified that the sole reason that gave rise to a "reason
able suspicion", stop was the fact that appellant was speeding.
Which concurs with the principles set in Gurrola, "an activity out
of the ordinary". Clearly, trial counsel failed to justify why the
officer conducted a traffic stop if, Applicant did not violate any
traffic laws. Therefore, a question of constitutional magnitude
remains unresolved which strictly rquires that an Evidentiary
Hearing be entertained.
IX.
While on the other hand, when the trial court ordered appellate
counsel, Mr. David Martinez, in its "Designation of Controverted
Previously Unresolved Facts Material to the Legality of Applicant's
Confinement", to explain why he did not challenge the legality of
Applicant's initial stop? Appellate counsel answered; The reason
that I did not question the legality of Applicant's initial deten
tion was because at the time that the officer observed the suspected
vehicle allegedly involved in the crime. Applicant had committed
7
no offense. (See Appellate counsel's Affidavit p.l). Clearly,
appellate counsel's answer concurs with Applicant's contention that
the detaining officer, Mr. Jimenez, had no legal reason to initially
stop Applicant which rendered Applicant's initial stop as illegal.
Clearly, both trial, and appellate counsels along with the prosecutor
have failed to provide any answers or any evidence to satisfy the
trial court's "Designation of Controverted, Previously Unresolved
Facts Material to the Legality of Applicant's Confinement".
But, regardless to the foregoing facts, trial court indicated
in it's Conclusions of Law, #2 that, Applicant's initial detention
was lawful. Therefore, Applicant has clearly demonstrated that
critical questions of constitutional magnitude remain unresolved.
Which requires that an Evidentiary Hearing be entertained in order
to determine the legality of Applicant's Confinement. T.R.A.P.,
Rule 33.1; Moff v. State, Supra; United States v. Vasquez, Supra.
X.
Applicant will now thoroughly show this Honorable Court how
the prosecution has failed to produce any evidence to contradict
Applicant's contention in Applicant's Art. 11.07, Ground One, Pro
secutorial Misconduct, Point Two: Applicant contends that, he has
demonstrated the six essential elements which comprise P.C. § 38.04
(b)(1) State Jail Felony, Evading Arrest or Detention while using a
vehicle. (See Memo. p. 9-16). Applicant further, contends that he
has proven by clear, and convincing evidence embeded in the record
that the prosecution has drastically failed to prove by any degree
essential element (5). Which dictates that, the prosecution must
prove beyond a reasonable doubt that, the detaining officer's
intention when he initially stopped Applicant was to arrest Applicant
(See Memo. p.9-16); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25
L. Ed. 2d 368 (1970); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); Brook v. State, 323 S.W.2d 893, 894-95
(Tex. Crim. App. 2000); Thacker v. Dretke, 396 F.3d 601, 613 (5th
Cir. 2005). Applicant has meticulously reviewed each essential
element and has proven how the prosecution's evidence in the record
supports all essential elements except for element (5). The detain
ing officer never testified that he intended to arrest Applicant.
Therefore, the prosecution's failure to strictly satisfy essential
element (5), lowered the., prosecution 's burden of proof, which rendered
Applicant's conviction as unconstitutional. (See Memo. p.16).
As this Honorable Court notices even though trial court declares
in it's Conclusions of Law, #14, that the State did not engage in
prosecutorial misconduct. Clearly, by the trial court's Conclusion
in #14, indicates that it refuses to acknowledge the prosecution's
fundamental error. It is established in T.R.A.P., Rule 44.2, Re
versible Error in Criminal Cases that (a) Constitutional Error
occurs; If the appellate record in a criminal case reveals consti
tutional error that is subject to harmless error review, the court
of appeals mus t reverse a judgment of conviction or punishment un
less the court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment. Clearly, in
the present case, the record reveals that, even though the State
failed to meet it's burden in element (5), Applicant was still
convicted. Which clearly contradicts the Texas and U.S. Constitu
tions, and the principles set out in In re Winship, and Jackson v.
Virginia,. Therefore, Applicant has clearly demonstrated that
critical questions of constitutional magnitude remain unresolved.
Which requires that an Evidentiary Hearing be entertained in order
to determine the legality of Applicant's Confinement. T.R.A.P.,
Rule 33.1; Moff v. State,; United States v. Vasquez,.
XI.
On Applicant's Art. 11.07, Ground One, Prosecutorial Misconduct,
Point Three, Applicant contends that, the prosecution has purposely
enhanced Applicant's punishment range beyond the statutory legal
limit with Applicant's only prior felony conviction which is not on
the T.P.C. § 12.35 State Jail Felony Punishment list, which only
qualifies certain serious prior felony convictions as legal enhance
ments. (See Memo. p.17-22). In addition, what the face of Indict
ment, Cause No. CR-09E-061A, clearly reveals is that Applicant only
has one prior felony conviction, T.P.C. § 29.02 Robbery, Indictment,
Cause No. CR-83J-125. Furthermore, Applicant will demonstrate how
his adjudication process leads us to T.P.C. § 12.35 State Jail
Felony Punishment which govern enhancements when a vehicle is alleged
to have been used or exhibited as a deadly weapon.
On September 30,2009, Applicant was initially adjudged guilty
by a jury for §38.04(b)(1) Evading arrest or detention while using
a vehicle, a State Jail Felony. Moreover, since a vehicle was in
volved during flight, then the prosecution had the option during
the guilt/innocence stage; to introduce evidence to try and increase
Applicant's punishment range up to a 3rd degree felony. Thereafter,
the prosecution did take it's opportunity to increase Applicant's
punishment by presenting State's Exhibit P.T.-l (police chase video),
and an agrument in support before the jury alleging that Applicant
used or exhibit his vehicle as a deadly weapon. Due to the prosecu
tion's assertion above. This clearly directs us to the language
10
within T.P.C. § 12.35(c)(1) which states in part; An individual ad
judged guilty of a State Jail Felony shall be punished for a third
degree felony if it is shown on the trial of the offense that: (1)
a deadly weapon as defined by Section 1.07, was used or exhibited
during the commission of the offense, or during immediate flight
following the commission of the offense, and that the individual
used or exhibited the deadly weapon or was a party or the offense
and knew that a deadly weapon would be used or exhibited;...(See
Memo. p.18-19). The State presented the deadly weapon (a vehicle),
before the jury as the "special issue", and instructed the jury to
consider that if, it found during the guilt/innocence stage. That
the prosecution proved that Applicant did use or exhibited his ve
hicle as a deadly weapon. Then, the jury would answer "yes", to the
"special issue". Thereafter, the jury did answer "yes", which in
creased Applicant's punishment range to a 3rd degree felony. Which
exposed Applicant to (2) to (10) years in T.D.C.J. Thereafter, the
prosecution attempted to further increase Applicant's punishment
range from (2) to (10), to (2) to (20) years in T.D.C.J, by present
ing Applicant's prior felony conviction, T.P.C. § 29.02 Robbery, as
an enhancement during the punishment phase. (See Memo. p.17).
XII.
Applicant contends that, Applicant's only prior felony convic
tion (§ 29.02 Robbery), is not on the T.P.C. § 12.35(c)(2)(A)(B) list
of serious felony offenses, therefore it did not qaulify to enhance
Applicant's punishment range to a 2nd degree felony. For this
Honorable Court's convenience Applicant will list all the serious
offenses that do qualify for enhancements under T.P.C. § 12.35(c)(2)
(A)(B).
11
Under § 12.35(c)(2)(A)
T.P.C. § 21.02 Continuous Sexual Abuse of Young Child or Children
or C.C.P., Art. 42.12,3g(a)(1) which are the following;
P.C.§ 19.02 Murder
§ 19.03 Capital Murder
§ 21.11(a)(1) Indecency with a Child
§ 20.04 Aggravated Kidnapping
§ 22.021 Aggravated Sexual Assault
§ 29.03 Aggravated Robbery
Health & Safety Code § 481.140 Use of Child in Commission of
Offense
Health & Safety Code § 481.134 Drug-Free Zone (c),(d),(e), or
(f).
P.C.§ 22.011 Sexual Assault
§ 22.04(a)(1) Injury to a Child, Elderly Individual, or Disabled
Individual
§ 43.25 Sexual Performance by a Child
§ 15.03 Criminal Solicitation
§ 43.05 Compelling Prostitutions
§ 20A.02 Trafficking of Persons;
Under §. 12.35(c)(2)(B)
C.C.P., Art. 42.12 Section 3g(a)(2) it states; to a defendant
when it is shown that a deadly weapon as defined in Sec. 1.07
Penal Code, was used or exhibited during the commission of a
felony offense or during immediate flight therefrom, and that
the defendant used or exhibited the deadly weapon or was a party
to the offense and knew that a deadly weapon would be used or
exhibited. On an affirmative finding under this subdivision,
the trial court shall-enter the finding in the judgment of the
court. On an affirmative finding that the deadly weapon was a
firearm, the court shall enter that finding in it's judgment.
Applicant has factually shown that his only prior felony con
viction T.P.C. § 29.02 Robbery, is definitely not among the serious
felony offenses listed above. Clearly, indicating that Applicant's
sentence has been illegally enhanced to a 2nd degree felony.
12
In addition, Applicant will also like to clarify that T.P.C. §
12.35(c)(2)(B), which directs us to C.C.P., Art. 42.12 Sec. 3g(a)(2).
Also, does not apply to Applicant due to the fact that, the language
in 3g(a)(2), dictates that if Applicant did use or exhibit a deadly
weapon to wit: a tfirearm. Then 3g(a)(2) would apply. But, as it
stands in the present case, the record clearly reveals in the Judg
ment of Conviction by Jury Sheet. (See Attachment Exhibit "C"p.l).
That, when the trial court entered it's affirmative findings on the
deadly weapon issue. The jury and the trial court determined that
a deadly weapon was used, to wit a motor vehicle, not a firearm.
Therefore, § 12.35(c)(2)(B); Art. 42.12, Sec. 3g(a)(2), clearly does
not qualify to enhance Applicant's punishment range. (See Attach
ments, Exhibits "B" & "C"p.l). Applicant has shown by clear, and
convincing evidence embeded in the record, and applicable State
Statutes that Applicant's 2nd degree felony conviction is illegal.
(See Memo. p.17-22). Which is contrary to the trial court's Conclu
sions of Law, #14, where it declares that, the State did not engage
in Prosecutorial Misconduct. Therefore, a question of constitutional
magnitude remains unresolved. Which strictly requires that an
Evidentiary Hearing be entertained.
XIII.
On September 29,2009, Applicant's case was called to a jury
trial (See Memo. p.l). On September 30,2009, during the punishment
phase, Assist. Dist. Atty., Mr. Chris Strowd (prosecution), presented
Applicant's pen packet before the court, and jury containing docu
ments verifying Applicant's prior felony conviction T.P.C. § 29.02
Robbery in an attempt to increase Applicant's maximum punishment
range from (10) years to (20) years in T.D.C.J. (See Memo. p.17-22).
13
The following is not to undermine the integrity of the Deaf
Smith County District Attorney's Office. But, Applicant being
ignorant to the law conducted a diligent search to gain understand
ing as to how Applicant's prior felony conviction qualified to in
crease Applicant-'s maximum punishment range from (10) to (20) years
in T.D.C.J. At the conclusion of Applicant's research, Applicant
discovered that, Applicant was found guilty of T.P.C. § 38.04(b)(1)
State Jail Felony, Evading arrest or detention while using a vehicle
(See Memo. p.9). Furthermore, during the guilt/innocence phase the
prosecution introduced evidence to prove that while Applicant was in
flight, Applicant did use or exhibit his vehicle as a deadly weapon.
The jury found that Applicant did use or exhibit his vehicle as a
deadly weapon, which increased Applicant's maximum punishment range
to (10) years in T.D.C.J. The way the Texas Legislature inscribed
the langauge in § 38.04, and the fact that Applicant only had one
prior felony conviction. This only leads us to one possible enhance
ment Statute, T.P.C. § 12.35 State Jail Felony Punishment with which
the prosecution may attempt to increase punishment. (See State v.
Brown, No. 06-09-00212-CR (Tex.App.-Texarkana); also Rebuttal to
Counsels' Affidavits, p.5). Moreover, pursuant to the aforemention
ed, Applicant has discovered that, Applicant's prior felony convic
tion T.P.C. § 29.02 Robbery does not fall within the realm of quali
fied serious felony offenses as outlined in § 12.35(c)(2)(A)(B).
(See Section XII). Therefore, according to the langange in § 12.35
(c)(2)(A)(B), and the additional State Statutes that § 12.35 directs
us to go check. It is apparently clear that, the prosecution's
effort to increase Applicant's maximum sentencing range from (10) to
(20) years in T.D.C.J, was invalid. In support of this fact Appli-
14
cant has carefully laid out the entire list of serious felony offen
ses that do qualify to enhance Applicant's sentence. (See Memo. p.
17-22, & Section XII.). Applicant has clearly demonstrated by clear
and convincing evidence embeded in the record along with applicable
State Statutes that, Applicant's prior felony conviction does not
qualify to enhance Applicant's maximum sentencing range. It is
incomprehensible to try and understand how this miscarriage of jus
tice could have been overlooked.
XIV.
The present case is like that in Bobo v. State, 843 S.W.2d 572,
575 (Tex. Crim. App. 1992). Appellant complained that the prosecu
tor purposely used an inadmissible prior felony conviction to il
legally increase Applicant's sentencing range, as the prosecutor has
also resorted to in the present case. In Bobo, the court of appeals
held that the record reflects that Appellant's indictment contained
two enhancement paragraphs. The second paragraph alleged that Appel
lant had previously been convicted of burglary in a California court.
The pen packet contained a conviction certification dated February 24
1989; however, the identifying fingerprints bear a certification date
of April 4,1989. Appellant contended that the prosecutor altered
the pen packet by adding additional documents that did not coincide
with the original documents .
Clearly, the prosecutor tampered with the inadmissible pen pac
ket trying to illegally qualify it as an enhancement. Once Appel
lant brought this egregious miscarriage of justice before the court
of appeals' attention, the court suggested that Appellant should be
afforded a new punishment hearing. The court further sustained
Appellant's point of error, and remanded Appellant's case back to
15
the trial court for a new hearing on punishment only. I_d. Appellant
further complained that, he was stripped of his Sixth U.S. Consti
tutional Amend . Right . to a fair trial due to the prosecutor's mis
conduct. For several years the U.S. Supreme Court, and the Texas
Court of Criminal Appeals have handed down opinions which seriously
hamper the effective investigations, prosecutions, and incarcerations
of criminal. The trend to protect the rights of the accused has
swung so far to the left that we have seemingly forgotten about the
Rights of the victims of crimes. However, it has become increasely
clear that these stringent guidelines are forced upon us when the
State refuses to follow or be bound by the rules . The actions of
the prosecutor in this case, Nancy Conlin must be condemned. Upon
discovering what she had done, the District Attorney of Harris
County notified the court, terminated her employment, and referred
the matter to a Harris County grand jury. By her acts Nancy Conlin
has set herself above the rules. Id.
XV.
Clearly, the present case mirrors Bobo, due to the fact that,
as in Bobo, Applicant has factually demonstrated in his Memo, pages
17-22, & 29-31. And, in Section XII, along with evidence embeded in
the record, and with State Statute, T.P.C. § 12.35(c)(2)(A)(B) State
Jail Felony Punishment. That, Applicant's prior felony conviction
clearly does not fall within the realm of qualified serious offenses
listed in § 12.35(c)(2)(A)(B), to legally enhance a State Jail Felony
But regardless to the fact above, as in Bobo, the prosecutor, Mr.
Chris Strowd set himself above the rules, and in the process has
perpetrated a fraud upon the court, and the jury. When the prose
cutor presented Applicant's inadmissible prior felony conviction
16
during the punishment phase of Applicant's trial. Therefore, pur
suant to the facts above Applicant has proven that, he is entitled
to relief requested in his Memo. Ground One. In the alternative,
if the prosecutor continues to insist that Applicant's only prior
conviction qualifies as a legal enhancement. Then, Applicant humbly
requests that this Honorable Court order the prosecution to clearly
lay out it's claim as Applicant has done so in Section XII. So that,
Applicant may gain an understanding as to how the law applies to
Applicant's prior felony conviction. Applicant has clearly shown
in the foregoing, and in his Memo. p. 4-23. That, the trial court's
factual determinations in it's Conclusions of Law dated March 25,
2015, regarding #14. That, the State did not engage in prosecutorial
misconduct is an erroneous assessment of the facts, which is not
supported by the record as a whole. Cearly, questions of contro
verted, previously unresolved facts material to the legality of
Applicant's confinement remain unresolved. Therefore, pursuant to
the foregoing an Evidentiary Hearing is required pursuant to Habeas
Corpus, Art. 11.07(3)(d); Moff v. State, 131 S.W.3d 485, 489 (Tex.
Crim. App. 2004); United States v. Vasquez, 7 F.3d 81, 84 (5th Cir.
1995).
XVI.
When the trial court ordered trial counsel to explain why he did
not challenge the State's use of Applicant's prior Robbery convic
tion for enhancement purposes. Trial counsel simply replied in his
Affidavit p.4 that, Applicant's prior Robbery conviction was pro
perly proven by the State. The question posed to trial counsel was not
whether Applicant's prior conviction was properly proven. But rather
if, it legally qualified to enhance Applicant's punishment. Appli-
17
cant has factually shown in Section XII, and in his Memo. p.17-22,
that the short answer to that question. Is, "No", it did not legally
qualify to enhance Applicant's punishment. Trial counsel realizing
that Applicant had sufficiently proven his contention correct in a
desperate attempt provided another answer by declaring under penalty
of perjury. That, Applicant's prior conviction did qualify under
T.P.C. § 12.42(a)(3) Penalties for Repeat and Habitual Offenders.
Clearly, trial counsel's answer was intended to mislead the court.
Because, Applicant's current charge T.P.C. § 38.04 State Jail Felony
Evading arrest with a vehicle, is not a subsequent to Applicant's
previous conviction for Robbery. Therefore, Applicant is not a re
peat offender. Furthermore, Applicant only has one prior felony
conviction (§29.02), therefore, Applicant is not a habitual offender.
(See trial counsel's Affidavit p.4), Clearly, trial counsel's an
swers were designed to mislead the trial court. Which, trial counsel
has succeeded as evident by the trial court's answer in it's Con
clusions of Law #4.
XVII.
In addition, when the trial court issued it's "Deignation of
Controverted, Previously Unresolved Facts Material to the Legality
of Applicant's Confinement". Where within, the trial court ordered
Appellate counsel on page 2, to explain why Appellate counsel did
not raise the fact of, the prosecution's using of an inadmissible
prior conviction to illegally enhance Applicant's sentence. In
appellate counsel's affidavit responding to all the designated issues
especially to the inadmissible enhancement. Appellate counsel pur
posely refused to acknowledge the trial court's question regarding
the prosecution's illegal enhancement of Applicant's sentence. It
18
is clear that, appellate counsel does not even want to touch this
issue with a "ten foot pole". Applicant has proven by clear, and
convincing evidence embeded in the record that, both trial, and
appellate counsels have drastically failed to provide any credible
evidence to support their evasive answers regarding the trial court's
questions. Clearly, it is apparent that, the only alternative by
which to resolve the trial court's controverted unresolved facts
that are material to the legality of Applicant's confinement is to
remand this case back to the trial court and order trial court to
entertain an Evidentiary Hearing with live testimony.
XVIII.
In Ground Two, Ineffective Assistance of Counsel (I.A.C.), Appli
cant contends that, had trial counsel conducted even a minimal pre
trial investigation. Trial counsel would have discovered that, the
identity of the anonymous 911 caller was unknown which rendered the
911 recording as inadmissible. (See Memo. p.4-9, & p.23-26).
Furthermore, trial counsel would have discovered that, the enhance
ment paragraph in regards to Applicant's only prior felony convic
tion on the face of Applicant's indictment did not qualify as a
specific type of serious offense that could legally enhance punish
ment on a State Jail Felony conviction under T.P.C. § 12.35(c)(2)(A)
(B). (See Memo. p.17-23, & p.28-32; also see Section XII). In addi
tion, in support of Applicant's contention that, trial counsel was
not prepared for trial. Applicant will show by clear, and convinc
ing evidence enbeded in the record how trial counsel was not familiar
with the enhancement structure for State Jail Felony Punishments
under T.P.C. § 23.35(a)(1)(c)(2)(A)(B) . Applicant's contention above
is sufficiently supported by the record; when trial court asked trial
19
counsel on the record. If, Applicant is found guilty of a State
Jail Felony, T.P.C. § 38.04(b)(1) Evading arrest or detention while
using a vehicle. And if, the jury finds that Applicant did exhibit
his vehicle as a deadly weapon, can that increase Applicant's punish
ment range? Andj trial counsel answered,"No Sir", it cannot incr
ease punishment. And was then promptly corrected on the record by
the State, when the State declared in part, "As the trial court
knows, "Yes", a deadly weapon finding can increase a State Jail
Felony Punishment range to a third degree offense". (See § 12.35(a)
(1); Memo. p.31). The trial court then turned, and asked trial
counsel, "Is that right". Trial counsel then stated, "Okay. I stand
corrected". (See Memo. p.31). Applicant has proven by clear, and
convincing evidence embeded in the record. (See Memo. p.31; § 12.35
(a)(1)) That, on the day of trial, trial counsel was not familiar
with the enhancement structure for State Jail Felony Punishments
§ 12.35(a)(l)(c)(2)(A)(B).
XIX.
Trial counsel acknowledged Applicant's contention above, But in
stead of conceding to the fact that, Applicant's only prior felony
conviction does not qualify under § 12.35, to enhance Applicant's
punishment. And, furthermore, submitting proper legal recommenda
tions that trial court correct Applicant's excessive illegal sen
tence. In the middle of appellate litigation, trial counsel has
changed his legal theory as to how Applicant was legally enhanced
to a 2nd degree felony. Trial counsel now claims under penalty of
perjury that, his new legal theory as to how Applicant's only prior
felony conviction qualifies to legally enhance Applicant to a 2nd
degree felony. Is due to the fact that, Applicant is a T.P.C. §
20
12.42(a)(3) Habitual Offender. (See trial counsel's Affidavit p.4).
Under Texas' habitual offender statute, a defendant convicted of a
felony is subject to a sentence of a second degree felony, punish
ment range (2) to (20) years if (1) he has two prior felony convic
tions, and (2) the conviction for the first prior offense became
final before commission of the second. In addition, Texas law re
quires the State to prove the habitual offender allegation to a
jury beyond a reasonable doubt during the punishment phase of the
trial. Dretke v. Haley, 124 S. Ct. 1847, 1848 (2004). In the pre
sent case, what the record reveals by clear and convincing evidence
embeded in the record is that, the State only presented one pen
packet, (State's Ex.#4), before the jury to try and increase Appli
cant's sentence during the punishment phase. Clearly, the State
failed to present two prior felony convictions as Texas law requires
(See.Memo. p.17-23, & 28-32; also see RR,V.6of6, State's Exhibits
Index, Ex.#4). Moreover, the entire record reveals that, Applicant
only has one prior felony conviction, this is also revealed in
Applicant's indictment, and in the Judgment of Conviction by the
Jury Document. (See attachments Indictment Exhibit "B", & Judgment
of Conviction by the Jury, Exhibit "C"). In trial counsel's desper
ate attempt to justify Applicant's illegal enhancement to a second
degree felony. Trial counsel purposely committed perjury before
the eyes of the court. Furthermore, trial counsel's false state
ments clearly mislead the trial court. This is evident by trial
court's determination in it's Conclusion of Law #4.
Moreover, in trial counsel's Affidavit in answer #3 on page #4,
it reveals that trial counsel is still not familiar as to how prior
felony convictions qualify to enhance State Jail Felony Convictions.
21
Therefore, Applicant has factually demonstrated in the foregoing
that trial counsel's answers in his Affidavit are completely unreli
able. In addition, according to T.R.A.P., Rule 44.2 when Applicant
directs the court to an exact place in the appellate record or
introduces evidence that reveals "Constitutional Error". Then Appli
cant's case is subject to harmless error review, the court of appeals
must reverse judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contri-
bute to the conviction or punishment. In the present case, Applicant
has sufficiently proven by evidence embeded in the appellate record
along with State Statutes, and State, and Federal case law that,
trial counsel did engage in (I.A.C.). Which clearly violated the
applicable Sections of the Texas, and U.S. Constitutions, and the
principles, set out in In re Winship, Jackson v. Virginia, and Strick
land v. Washington,.
Moreover, Applicant has factually demonstrated that crucial
questions of constitutional magnitude remain unresolved, contrary to
the trial court's findings. Which requires that an Evidentiary Hear
ing be entertained in order to determine the legality of Applicant's
Confinement. T.R.A.P., Rule 33.1; Moff v. State, ; United States v.
Vasquez , .
XX.
Ground Three, Applicant contends that appellate counsel failed to
provide effective assistance during direct appeal. In Point of
Error One, Applicant contends that he has sufficiently proven in his
Memo. p.40-41, & 4-23, that, the "plain errors", Applicant claimed
in Point One remain unresolved. In Ground Three, Point of Error Two,
Applicant contends that, he has sufficiently proven in his Memo. p.
22
23-40, with evidence embeded in the record that, trial counsel was
ineffective, and appellate counsel failed to bring those "plain
errors", to light. (See Memo. p.26-28, & 23-40). In Ground Three,
Point of Error, Three, and Four, Applicant contends that appellate
counsel has purposely failed to meet his appellate obligations to
properly, and timely inform Applicant of his Statutory appellate
options. This fact is sufficiently proven in Applicant's Memo. p.
43-49.
In addition, during the commencement of Applicant's trial a dis
cussion took place between trial counsel, the State, and the tr.ial
court in regards to the unknown identity of the 911 caller. Trial
counsel argued that since the anonymous 911 caller's identity was
never known the recording is inadmissible, and can not used during
trial to prosecute Applicant. To the present day the prosecution
has never claimed that it knew the 911 caller's identity.
Thereafter, Applicant formulated a point of error in regards to
this fact. (See Ground One, Point One,.found in Memo. p.4-7). In
fact, the entire appellate record is completely silent in regards
to the identity of the anonymous 911 caller. But yet, when trial
court ordered appellate counsel to address the trial court's Contro
verted, Previously Unresolved Facts Material to the Legality of
Applicant's Confinement. Appellate counsel declared under penalty
of perjury in his Affidavit that, he had reviewed the appellate re
cord, and had discovered the identity of the 911 caller, Erica Garcia
If appellate counsel's contention is correct, why then did appellate
counsel not submit a copy of the alleged document that supposedly
identifies Erica Garcia as the anonymous 911 caller in support of
his contention? It is obvious that even the trial court is not
23
convinced that Erica Garcia is the anonymous 911 caller. Applicant's
contention is corroborated by the fact that, even the trial court
did not acknowledge appellate counsel's unsubstantiated claim in
it's Findings of Fact and Conclusions of Law. Applicant has fact
ually demonstrated that in appellate counsel's desperate attempt to
qualify the inadmissible 911 tape recording with, which to prosecute
Applicant. Appellate counsel has committed perjury by declaring
such fraudulent statement under oath in his Affidavit. (See Appel
late counsel's Affidavit p.l, B.l).
Furthermore, Applicant has factually demonstrated in the fore
going that appellate counsel's answers in his Affidavit are complete
ly unreliable. In addition, Applicant has factually proven with
evidence embeded in the appellate record that appellate counsel did
engage in I.A.C. Which clearly violated the applicable Sections
of the Texas, and U.S. Constitutions, and the principles set out in
In re Winship, Jackson v. Virginia, and Strickland v. Washington,.
Moreover, Applicant has factually demonstrated in this Rebuttal
in regards to the Trial Court's Findings of Fact and Conclusions of
Law that, crucial questions of constitutional magnitude remain unre
solved contrary to the trial court's determinations. In addition,
Applicant has formulated, and presented before the trial court per
suasive arguments in regards to how Applicant's Constitutional Rights
have been violated, especially Applicant's illegal sentence. It is
well established that a sentence not authorized by law, as we have
in the present case, is void. Fullbright v. State, 818 S.W.2d 808,
'809 (Tex. Cr. App. 1991); Heath v. State, 817 S.W.2d 335, 339 (Tex.
Cr. App. 1991). The Texas Court of Criminal Appeals has held that a
trial court always has authority to correct an illegal sentence.
24
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). In the
present case, Applicant has proven by clear, and convincing evidence
that his sentence is illegal. But yet, the trial court has refused
to perform it's ministerial duty to correct such egregious miscar
riage of justice;
Prayer
Wherefore, All Things Considered, Applicant humbly requests
that this Honorable Court take into consideration the foregoing
Rebuttal, and grant Applicant an Evidentiary Hearing. So that,
Applicant may be afforded a full, and fair fact hearing to develope
material facts in support of Applicant's Grounds, and points of
error in his 11.07. Especially, Applicant's void sentence.
Therefore, based upon the foregoing reasons, Applicant prays
this Honorable Court grant Applicant an Evidentiary Hearing
pursuant to Texas Rules of Appellate Procedure, Rules 33.1; 44.2;
Texas Code of Criminal Procedure, Article 11.07(3) (d) ;' Townsend v.
Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770 (1963); Guidry v. Dretke,
397 F.3d 306, 332-23 (5th Cir. 2005). Furthermore, Applicant prays
for any other relief which this Honorable Court deems justice, and
proper to protect Applicant's State, and Federal Constitutional
Amendment Rights .
Respectfully Submitted,
Eliseo Rivera, Jr. TDCJ
25
Certificate of Service
I, Eliseo Rivera, Jr. T.D.C.J. #1617277, Applicant hereby
certify that, a true, and correct copy of the foregoing, and
accompanying Motion has been forwarded by U.S. Mail, Postage Pre
paid, First Class to the Attorney for the State at Deaf Smith
County Courthouse, 235 E. 3rd Street, Room 401, Hereford, Texas
79045-5593.
/sy/i^/7 /Tj/lrf/W
Eliseo Rivera, Jr. T #1617277
Inmate Declaration
I, Eliseo Rivera, Jr. T.D.C.J. #1617277, Applicant declare un
der penalty of perjury that the foregoing is true, and correct.
Executed in the Dalhart Unit in Hartley County, Texas on this
the 7th day of May, 2015.
Respectfully Submitted,
"€^yA^//jA^r/^\ ^n
Eliseo Rivera, Jr. TDCJ/#1617277
Dalhart Unit
11950 Fm. 998
Dalhart, Texas 79022
26
Trial Cause No. CR-09E-061
AE£^Uate_No^_07_-09-00 332-CR
Ex Parte
In the Texas Court of
Eliseo Rivera, Jr
^ Criminal Appeals
§ Austin, Texas
Motion Requesting this Honorable Court to Order the
Texas Rangers to Conduct a Criminal In.IV estigation
To the Honorable Justice(s) of Said Court-
Comes Now, Eliseo Rivera, Jr. T.D.C.J. #16172 77 hereinafter
T^r^
this Motion Pr° Se' ^ t--thSt ab°Ver, ,Styled' and "umbered cause
Dursnant- dUse' and fil
and files
10.1(a)(1). RUl6S °f APP<^" Procedure, Rule
Moreover, Applicant contends that the Attorney for the State
::;' nr -a f— — „hen, thye stat::\
o y ad knowlngly introduced Applicant's prior felony con-
a 3Ilo "? did "^ qUali£y t0 enhan" APP"«nt's charge,
t.p. . 8 >;b;;ing rrTor Detention uhile — - - ^
(Memo.) pages 17-'n ., >. '(B) (20°4)' 805 S.W.2d 493, 497 (Tex.App.-Houston [14th
Dist.] 1991). Furthermore, Applicant contends that his sentence
should be reversed, and further requests that this Honorable Court
Order a new punishment hearing.
IV.
In support of Applicant's contention above Applicant presents
the following exemplary case:
In Bobo v. State, Supra, Appellant complained that the prosecutor
purposely used an inadmissible prior felony conviction to illegally
increase Appellant's sentencing range, as the prosecution has also
resorted to in the present case. In Bobo, the court of appeals held
that the record reflects that Appellant's indictment contained two
enhancement paragraphs. The second paragraph alleged that Appellant
had previously been convicted of burglary in a California court.
The pen packet contained a conviction certification dated February 24,
1989; however, the identifying fingerprints bear a certification date
of April 4,1989. Appellant contended that the prosecutor altered the
pen packet by adding additional documents that did not coincide with
the original documents.
V.
In its brief, the State admits that the second enhancement para
graph containing Appellant's prior felony conviction did not qualify
as a legal enhancement due to the fact that, the California pen packet
did not contain the fingerprints certification to coincide with the
conviction certification dated February 24,1989, as required by the
Texas Statutory, Code of Criminal Procedure, Art. 42.09. Clearly,
regardless to the fact above the prosecutor tampered with the pen
packet trying to qualify it as a State Jail Felony Punishment
(Enhancement). Once Appellant brought this egregious error before
the court of appeals' attention, the court suggested that Appellant
should be afforded a new punishment hearing. And, accordingly
sustained Appellant's point of error, and Remanded Appellate's case
to trial court for a new hearing on punishment only.
VI.
Appellant further complained that, he was stripped of his Sixt'h
Amend. Right to a fair trial due to misconduct by the prosecutor,
For several years the U.S. Supreme Court, and the Texas Court of
Criminal Appeals have handed down opinions which seriously hampered
the effective investigation, prosecution, and incarceration of
criminals. The trend to protect the rights of the accused has swung
so far to the left that we have seemingly forgotten about the rights
of the victims of crimes. However, it has become increasingly clear
that these stringent guidelines are forced upon us when the State
refuses to follow or be bound by the rules. The actions of the
prosecutor in this case, Nancy Conlin must be condemned. Upon dis
covering what she had done, the District Attorney of Harris County
notified the court, terminated her employment, and referred the matter
to a Harris County grand jury. By her acts Nancy Conlin has set
herself above the rules, and has perpetrated a fraud upon the court,
and the jury. Bobo v. State, Supra.
VII.
We agree with the court of appeals that: The actions of the
prosecutor in this case, Nancy Conlin, must be condemned, upon dis
covering what she had done, the District Attorney's Office was
obligated to notify the court,, terminate her smployment, and refer
the matter to the Harris County grand jury. Because, by her
acts, Nancy Conlin has set herself above the rules, and has perpet
rated a fraud upon the court, and the jury. Bobo v. State, 843 S.W.2d
572, 575 (Tex. Crim. App. 1992).
VIII.
Clearly, Bobo , Supra mirrors the present case due to the fact
that as in Bobo, Applicant has factually demonstrated in his Memo
randum of Law pages 17-21, and 29-31 along with evidence embeded in
the record, and State statute, T.P.C. § 12.35 State Jail Felony
Punishment (Enhancement)(c)(2)(A)-(B), that Applicant's prior con
viction did not fall within the realm of qualified crimes outlined
in § 12.35(c)(2)(A)-(B) to legally enhance a State Jail Felony. But
regardless to the fact above, as in Bobo , the prosecutor, Chris
Strowd has set himself above the rules, and has perpetrated a fraud
upon the court, and. the jury. When the prosecutor proceeded to present
Applicant's prior felony conviction during Applicant's punishment
phase for enhancement purposes.
Prayer
Applicant prays that, pursuant to the facts above this Honorable
Court Order the Texas Rangers to conduct a criminal investigation into
the prosecutor, Chris Strowd's prosecution practices in the 222nd
Judicial District Court in Deaf Smith County, Texas. And, Further
more, make appropriate findings of fact, and conclusions of law.
In addition, if it is determined that, the prosecutor did engaged in
misconduct during Applicant's punishment or any part of trial. Then,
Applicant humbly requests that Chris Strowd be relieved of his duties
to coincide with Bobo,.
Certificate of Service
I, Eliseo Rivera, Jr._T.D.C.J. #1617277 Applicant, Pro Se, certify
that a true, and correct copy of the foregoing Motion has been for
warded by U.S. Mail, Postage Prepaid, First Class to District Clerk,
Jean Coody at Deaf Smith County Courthouse, 235 E. 3rd Street, Rm. 304,
Hereford, Texas 79045, and to the Attorney for the State at Deaf Smith
County Courthouse, 235 E. 3rd Street, Rm. 401, Hereford, Texas/79045-
5593, on this the 7-th day of May 2015.
/C*My JC?/7/sA^
Eliseo Rivera^ Jr )CJ 617277
ft o Exhibit "B''
NO. CVL-JD9S-6&,(
THE STATE OF TEXAS
V.
ELISEO RIVERA. JR.
INDICTMENT
OFFENSE: FELONY EVADING
ATTORNEY:
A TRUE BILL:
Foreman of the Grand Jury
************
FILED FILED in the 222nd District Court
under the case/file number as Amount of Bail
indicated and qn the dale-an'dMime/' $ /(TOCO
stamped^ ^ "%.t '{L _. ? "••;#
JP Case#
JEAN~SCH'JMACHL.R-COODY
District Clerk. Deaf Smith County,'. X
By cf^y* s£~*-^—- Deputy
STATE OF TEXAS
COUNTY OF DEAF SMITH
I, JEAN COODY, Clerk of the 222nd Judicial District Court of Deaf Smith County, Texas, do
hereby certify that the within and foregoing is a true and correct copy of the Original Bill of
Indictment filed in said Court on the date and time stamped above in the captioned styled and
numbered cause.
Given under my hand and the seal of said Court, at office in Hereford. Texas, this