Lares, Richard

/i/6-/5
NO.
COURT OF CRIMINAL APPEALS
1RIG1NAL
TEXAS RULES OF APPELLATE PROCEDURE, RULE 68.4
RICHARD LARES
V.
THE STATE OF TEXAS
RECEIVED..,
COURT OF CRIMINAL APPEALS
On Petition for Discretionary Review
from the Fourth Court of Appeals DEC 28 2015
in No. 04-15-00183-CR Affirming the
Conviction in No. 2006CR10110 from the AbelAcosta, Clerk
399th Judicial District Court
of Bexar County, Texas
APPELLANT'S PETITION FOR
DISCRETIONARY REVIEW
FILED IN RICHARD LARES, PRO SE
COURT OF CRIMINAL APPEALS
TDCJ-ID #1592255
c >-0 CO ^u.iJ Pack 1 Unit
2400 Wallace Pack Rd.
Abel Acosta, Clerk
Navasota, Texas 77868
Pro Se
[ COVER ]
TABLE OF CONTENTS
PAGE
Index of Authorities iii
Statement Regarding Oral Argument iv
Statement of the Case 1
Statement of Procedural History 1
Ground for Review Number One
Whether the Court of Appeals was correct in its opinion,
disagreeing upon a material question of law, necessary to
the court's decision when it concluded that appellant's
appeal is frivolous and without merit,citing Bledsoe v.
State 178 S.W.3d 824,826-27 2
Issue For Argument Number 1
Appellant argued that his Constitutional Right to a Fair Trial
was denied him due to multiple instances of ineffective assist
ance of counsel, as stated in pro se brief relying on Garcia
v. State,308 S.W.3d 62(Tex.App.[4th Dist.-San Antonio]2009 2
Issue For Argument Number 2
Appellant argued that his Constitutional Right to a Fair Trial
was denied him due to Prosecutorial Misconduct for failure to
reveal favorable exculpatory evidence to the defense, its 404B
violation prejudiced the punishment, and the state's denying
appellant's right to confrontation, as stated in pro se brief
relying on Rios v. State,377 S.W.3d 131(Tex.App.[lst Dist.
-Houston[2012 5
Issue For Argument Number 3
Appellant argued that the trial court erred in allowing the State
to go into 404B matters not contained in the State's Notice(s),
after the Court pronounced that it would ONLY allow matters con
tained in its Notice(s) and said Ruling is contained in the Sent
encing Hearing Transcript; further the court erred in excluding
appellant's VA Psychiatric, Psychological Mental Illness Records
from an adequate Competency and Sanity Evaluation, a denial of
Appellant's Due Process Rights of the Fourteenth Amendment and
Fair Trial Proceedings 10
Conclusion and Prayer 12
Certificate of Service 13
Certificate of Compliance 13
li
INDEX OF AUTHORITIES
CASES PAGE
Bledsoe v. State,178 S.W.3d 824, 826-27 2
Brady v. Maryland, 83 S.Ct. 1194(1963) 6,10
Burks v. State, 876 S.W.2d 877, 904-05(Tex.Crim.App.l994) 10,12
Ex parte Chabot, 300 S.W.3d 768, 770-7l(Tex.Crim.App.2009) 6,10
Ex parte Elizondo, 947 S.W.2d 202(Tex.Crim.App.1996) 8,10
Ex parte Robbins, 360 S.W.3d 446, 476(Tex.Crim.App.2011) 6,10
Garcia v. State,308 S.W.3d 62(Tex.App.[4th Dist.-San Antonio]2009 2,4
Garza v. State, 213 S.W.3d 338, 348(Tex.Crim.App.2007) 4
Herrera v. Collins,506U.S.433-34, 113 S.Ct.878, 122 L.Ed.2d 238(1993) . 8,10'
Kyles v. Whitley,514 U.S. 419,437-38, 115 S. Ct. 1555,1567, 131 L.Ed.2d 215(1963). 6,10
Lombard v. Lynaugh, 868 F.2d 885(5th Cir.1980) 4
Rios v. State, 377 S.W.3d 131(Tex.App.[lst Dist.-Houston]2012 5,6,7,8,9
Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052 4
STATUTES
Texas Code of Criminal Procedure Article 22.02(6) 7
Texas Code of Criminal Procedure Article 404B 5,6,11
Texas Rules of Appellate Procedure, Rule 33.1(a)(1)(A) 11,12
Texas Rules of Appellate Procedure, Rule 33.1(a)(2)(A) 11,12
Texas Rules of Appellate Procedure, Rule 33.2 9
Texas Rules of Appellate Procedure, Rule 44.2(a) 11,12
Texas Rules of Appellate Procedure, Rule 66.3(a),(c), and (e) 12
T.R.P.C. Rule 3.09(a) 10
TEXAS CONSTITUTION
Texas Constitution Article V, § 6 9,10
UNITED STATES CONSTITUTION
Article I, § 10, cl. 1 Contract Clause 8,12
SIXTH AMENDMENT 2,3,10
FOURTEENTH AMENDMENT 2,3,5,6,7,10,12
OTHER
Canon 2 Code of Judicial Conduct 10,12
Star Decisis Doctrine 2,3
in
Statement Regarding Oral Argument
Appellant specifically requests Oral Argument on his issues claimed and
would show that his claims for relief may not be fully or fairly resolved by
this court without taking of live testimony andr:presentation of evidence[.because
appellant contends that he is entitled to relief for any errors substantiated
by these factual allegations. Appellant relies on factual recitations provided
to the Fourth Court of Appeals as well as facts contained in the clerk's record,
the Court Reporter's Record, documents referred to by the record implicitly or
explicitly, and all Alibi Affidavits and Declarations of facts. Appellant is
not at liberty but requests that he be allowed/granted oral argument and to
participate by teleconference or Sattle-lite via television.
IV
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, RICHARD LARES, appellant in the above entitled and numbered
cause, Pro Se, and petitions the Court of Criminal Appeals to review the opinion
by the Fourth Court of Appeals, and respectfully shows this Court the following
in support of his petition.
Statement of the Case
This appeal arises from a conviction for Aggravated. Sexual Assault to a
Child, in the 399th Judicial District Court of Bexar County, Texas, the Honor
able Juanita Vasquez-Garner, Presiding Judge. A Nolo Contender Plea Bargain
accepted by the State with a cap of 35 years. The Court found appellant guilty
and assessed punishment at 30 years in Texas Department of Criminal Justice,
Institutional Division and fine of $1,500.
Statement of Procedural History
Appellant's plea agreement initially waived appeal rights, through counsel
misadvise to plea to an offense not alleged. (CR 159 and 120). Appellant filed
Nunc Pro Tunc to Correct Offense Date on January 26,2015, the Court granted. (CR-
172). Appellant then filed Motion to Arrest Judgment and the Court construed
as a Motion for New Trial. The Court appointed Mr. Barry P. Hitchings to repre
sent appellant on direct appeal. (AE-40). Appellant file numerous Notices to
the Appeals Court informing them that appointed counsel refused to visist his
new client and no interview occurred to aid counsel in appellant's defense. The
Fourth Court of Appeals accepted counsel's Anders Brief and allowed appellant
to file a Pro Se Brief. Appellant filed a Notice to the Court that he did not
recieve any ruling or order from the Nov.4,2015 hearing, and said Notice was
construed as a Motion for rehearing without benefit of appellant stating any
claims, to which the Court DENIED on Novv24,2015. Appellant files this petition
within the time permitted by this court.
Ground for Review Number
Whether the Court of Appeals was correct in its opinion, disagreeing upon a
material question of law, necessary to the court's decision when it concluded
that appellant's appeal is frivolous and without merit, citing Bledsoe v. State,
178 S.W.3d 824, 826-27. (Justices' Opinion Page 2).
Issue For Argument Number 1
Appellant argued that his Constitutional Right to a Fair Trial was denied him
due to multiple instances of ineffective assistance of counsel, as stated in
pro se brief relying on Garcia v. State, 308 S.W.3d 62(Tex.App.[4th Dist.
-San Antonio]2009, as the authority in his ground.
Statement of the Case
Appellant adopts the recitation of facts as set out on Page 1 of this PDR
for the purpose of this Issue for Argument Number 1.
Authority
Garcia v. State,308 S.W.3d 62(Tex.App.[4th Dist. -San Antonio]2009 is ana
logous to appellant's case because it is a case where. Garcia was convicted of
Aggravated Sexual Assault, an Appeal on PDR-. Garcia stated his counsel was in
effective under the Sixth Amendment because, counsel's conduct in introducing
and opening the door to a prior Sexual Assault and other "bad acts" evidence,
along with his failure to object or request limiting instruction, showed his
lack of investigation of the relevant law and facts in advance of trial; elements
stated are equaly similar in the instant case. Over View in Garcia: Defendant
argued that he was deprived of his right to a fair trial due to multiple insta
nces of ineffective assistance of counsel. The Court of Appeals Agreed. The
record^as in the instant case>affirmatively demonstrates a pattern by defendant's
counsel misunderstanding the applicable law. The record further showed that
counsel's deficient conduct permeated both phases of trial, and deprived defen
dant of a Fair Trial and Reliable Results; this issue is the same in case at bar.
The Court Judgment Reversed and Remanded New Trial. Appellant relies on Star
2
Decisis Doctrine for similar relief, because appellant raised and proved the
very same issues of ineffective assistance of counsel in his pro se brief and
based on Garcia, the Court of Appeal's Opinion is in direct conflict.
Background Facts
Appellant claims of Ineffective Assistance of counsel, involuntary plea,
and no fair trial in this Issue for Argument Number 1 is founded on the follow
ing background facts:
Child Protective.Services put Appellant in a utility closet by Officer
Belinda Castillanos, prior to having him sign a typed confession made and typed
by her, and had appellant sign it while he lay on the ground suffering from the
clausterphobia. and dust induced asthma attack to which he was not allowed to
leave an seek his medication asthma inhaler.(Pro Se Brife. Page 19 and Sentencing
Hearing RR-94 10-12). Appellant was pressured into taking "responsibility as
the adult" by San Antonio Police Chaplain, Rev. James P. Worley to which he
stated that appellant "may have misinterpreted my advice and made a confession".
(Pro Se Brief Page 20 and AFF. C 2). Trial Counsel has been accorded a double
dose of leighway by the Court of Appeals but when trial counsel's affidavit
clearly demonstrated untruthfulness, misrepresentation of facts, and fraud upon
the court, appellant must question the integrity of the Appeal Opinion and our
judicial system. (Pro Se Brief AFF. N). The Appeals' Justices may have overlook
ed numerous Alibis on Pro Se Brief that were submitted by verifiable, credible
people of the community, that could resolve the issue of guilt or innocence.
Appellant is not a lawyer nor a student.of law and unable to produce any
compelling brief to the standard of professional attorneys at law and may under
represent his material evidence of Alibis, Scientific Facts contained in the
record, and legal errors of fundamental structural errors that denied appellant
a fair trial as guaranteed by the United States^Constitution 14th Amendment.
Appellant provided Appeal Counsel non-frivolous' but counsel did not argue
On Direct Appeal. (Exhibit 1 Page 8). Appellant Counsel may be found ineffect
ive for failure to raise non-frivolous issues. Lombard v. Lynaugh, 868 F.2d 885
(5th Cir. 1980). Appellant provided Notices to Appeals Court. (Exhibits 2-4).
Argument
Ineffective Assistance of Trial Counsel may not be appropriate on Direct
Appeal, under Garza v. State, 213 S.W.3d 338, 348(Tex.Crim.App.2007)(reviewing
court on direct appeal must defer to cousnel's decision making unless ineffect
ive assistance is firmly founded in the record and there is no possible legiti
mate strategy underlying the decisions). Trial Counsel admitted to no strategy
and that the only strategy to take was responsibility, which is no strategy.
(Pro Se Brief AFF. N Page 6). The record also demonstrates trial counsel's
performance fell below an objective standard as stated in Strickland v. Washin
gton, 466 U.S. 688, 104 S.Ct.2052. On Appellant's pro se brief appellant showed
numerous objective failures made by trial counsel to the point of failure to
investigate, failing to make even the cursory investigation, into Counts I and
II, Count I being the offense counsel had appellant plea to, where Count I was
not supported by the Complaint because it was not alleged. (CR 6 and 120). A
plea based on a defendant's counsel misunderstanding of the applicable law dep
rives a defendant of a Fair Trial and Reliable Results. Garcia Supra.(such con
duct had to the admission of evidence that undermined defendant's credibility,
which was dependantion the strength of his own credibility as compared to that
of the complaint). Thus, the denial of a fair trial is appropriate to raise
when a pattern of ineffective assistance is affirmatively demonstrated by the
record. Garcia Supra.
In reaching their opinion, the Honorable Fourth Court of Appeals has rend
ered an opinion in direct conflict with the rationale in Garcia v. State,308 S.
W.3d 62(Tex.App44th Dist.-San AntonioJ2009 also Garza v. State,213, S.W.3d 338
348(Tex.Crim.app.2007) and Strickland v. Washington,466 U.S. 688,104 S.Ct.2052.
^
Issue For Argument Number 2
Appellant argued that his Constitutional Right to a Fair Trial was denied him
due to Prosecutorial Misconduct for failure to reveal favorable exculpatory
evidence to the defense, its 404B violation prejudiced the punishment, and the
state's denying appellant's right to confrontion, as stated in pro. se brief
relying on Rios v. State, 377 S.W.3d 131(Tex.App.[1st Dist.-Houston]2012,
as the authority in his ground.
Statement of the Case
Appellant adopts fhe'recitation of facts as set out on Page 1 of this PDR
for the purpose of this Issue for Argument Number 2.
Authority
Rios v. State, 377 S.W.3d 131(Tex.App.[lst Dist.-Houston]2012)is analogous
to appellant's case because it is a case where Rios was convicted based on err
oneous information provided by the state, resulting in Rios pleading guilty to
a class B misdemeanor, on motion for rehearing. Which the Court granted and
withdrew its opinion and judgment. It is the fundamental constitutional struct
ural principles in fair trial proceedings that apply to the instant case, which
make it analogous to Rios. Appellant does not have access to an adequate., law
library with the technology and up todate case law that attorneys at law have
access'to at liberty and must refer to a case such as Rios to demonstrate simi
lar legal proceedings surrounding the circumstances in this second issue. When
the State informed Rios that the breath test results showing his blood alcohol
concentration to be approximately twice the legal limit were invalid, Rios
applied for and was denied postconviction habeas corpus relief. On appeal, Rios
contends that the trial court's ruling was in error. The Appeals Court stated
because we have reviewed the record and concluded that, the trial court abused
its discretioniii.denying Rios habeas relief, we reverse. Appellant applies"xhe
same structural error stated by Rios in a Plea Bargain that the State falsified
5
evidence inducing Rios into a plea of guilty, by dealing Rios a tainted hand.
Despite the fact that the State, at the time of the original plea, was unaware
of the falsification of the intoxilyzer results, regardless of the good faith
or bad faith of the prosecution, the responsibility of the validity of the evi
dence used to extrat a guilty plea in a plea-bargain case rests with the prose-
utorial arm of the State; as stated by Justice Jim Sharp, concurring, further
quoting Justice Kennedy reasoning in Kyles v. Whitley,514 U.S. 419, 437-38, 115
S. Ct. 155, 1567, 131 L.Ed.2d 490(1995)(prosecutors must not only disclose info
rmation within their own personal knowledge but have "a duty to learn of any
favorable evidence known to the others acting on the government's behalf in the
case, including the police"), since, then the prosecutor has the means to disc
harge the government's Brady responsibility if he will, any argument for excus
ing a prosecutorfrom disclosing what he does not happen to know about boils down
to a plea to substitute the plice for the prosecutor, and even for the courts
themselves, as the final arbiters of the "140 government's obligation to ensure
fair.trial, and Therefore, It is axiomatic that the Due Process Clause of the
Fourteenth Amendment is violated when the State Knowingly or unknowingly uses
perjured testimony to obtain a conviction. Ex Parte Robbins, 360 S.W.3d 446, 476
(Tex.Crim.App.2011)(Alcala. J..dissenting)(citing Ex Parte Chabot,300 S.W.3d 768,
770-71(Tex.Crim.App.2009). Appellant's claim of prosecutorial misconduct are
similar to those stated above which may render appellant's plea involuntary due
to the State's falsification of evidence and withholding of favorable exculpat
ory evidence that should have been revealed to appellant prior to plea negotia
tion and the entering the Nolo Contender Plea of June 10,2009. (CR-159).
Background Facts
r;:,, r.sAppellant claims of Prosecutorial Misconduct due to falsification of State
evidence, failure to reveal favorable exculpatory evidence to the defense, its
404B violation that prejusdiced the punishment, and the State denying confront-
ion during sentencing and punshment phase, denied appellant a fair trial under
the rationale of Rios and the United States' 14th Amendment due process clause.
Appellant holds the State to its contract, Plea Agreement, contained in
CR-159, where the State, Attorney for Defendant, and the Defendant signed and
agree to all that is stipulated and contained within this single document.
Appellant seeks specificeperformance in staying within this document as prima
facie because said contract is based on a criminal offense not alleged by the
complainant and her complaint see CR-120. The Contract Plea does not contain
specific language of Texas Code of Criminal Procedure Article 22.02(6) and said
document does not point nor reference said Article, and as such appellant should
not have to prove an additional element nottcontained within the limits of the
contractual plea, and as such appellant should only be held to answer for the
one criminal offense alleged as Count I: on or about the 3rd Day of September,
2000. As stated in Rios "If our jurisprudence is to regard a plea agreement
as a contract between the defendant and State, there cannot be permitted even
the slightest measure of fraudulent inducement to that contract;" and "Sadly,
by the time.this shameful little secret came to light, the State and Rios had
long since negotiated a plea upon the 'cooked' results."
The "cooked" results in appellant's instant case are Counts I and II, which
trial counsel insisted and urged appellant to plea due to "multiple counts."
(^ro Se Brief AFF. N 1). Counts I and II are clearly not within the range of
the alleged complaint affidavit tendered by the alleged victim. Appellant-avers
that he informed the PSI Interviewer that he did not commit any of the Offenses
contained in Counts I, II, and III. Appellant has made numerous attempts to
obtain the PSI Report but the State and trial counsel have conspired not to show
this documents to appellant eventhough trial counsel claimed to have "gone over"
the PSI with appellant during June 10,2009 Plea Hearing, to which counsel lied
to the Honorable Judge and appellant's wife's affidavit attest to this fact.
(Pro Se Brief AFF. G 4-5 and M 2). In Rios Footnote 1 states "While the trial
court limited its questioning to the terms of the written plea itself, Rios made
7
it clear that the breath test results were discussed at the plea hearing. ...
The trial court had to be informed of these results to comply with the statutory
mandate to require the-defendant to install the ignition interlock... Thus, Rios's
testimony that the breath test results were discussed at the hearing is suppor
ted by the procedure envissioned by the statute." Appellant avers that the very
same evidence is contained in the PSI Report because he recalled telling the
PSI Interviewer that he was not in the State of Texas During Count I Sept.3,2000
nor was the complainant and that she did not alleged any offense for those dates.
The 399th Judge claimed to have read the PSI during August 10,2009 Plea Hearing
and thus was made fully aware of these facts that no criminal offense took place
for those counts, and in order to prosecute appellant for a criminal offense for
said counts the issue had to have been discussed at the plea hearing admonishment.
In Ex Parte Elizondo, 947 S.W.2d 202(Tex.Crim.App.1996) quoting Herrera v. Col
lins,506 U.S. 433-34, 113 S.Ct. at 878,122 L.Ed.2d at 238(1993)(Blackmun.J.Diss
enting) Justice Blackmun argued:
The government bears the burden of proving the defendant's guilt beyond a
reasonable doubt, but once the government has done so, the burden of prov
ing innocence must shift to the convicted defendant. The actual-innocence
inquiry is therefore distinguishable from review for sufficiency of the
evidence, where the question is not whether the defendant is actually inn
ocent but whether the government has met its constitutional burden of pro
ving the defendant's guilt beyond a reasonable doubt. When a defendant
seeks to challenge the determination of guilt after he has been validly
convicted and sentenced, it is fair to place on him the burden of proving
his innocence, not just raising doubt about his guilt.
Continued-Because placing the burden on the petitioner to prove innocence
creates a presumption that the conviction is valid, it is not necessary or
appropriate to make further presumptions about the reliability of newly
discovered evidence generally. Rather, the court charged with deciding
such a claim should make a case-by-case determination about the reliability
of the Newly Discovered evidence under the circumstances. The court then
should weigh the evidence in favor of the prisoner against the evidence
of his guilt. Obviously, the stronger the evidence of the prisoner's
guilt, the more persuasive the newly discovered evidence must be.
Id. Appellant applies these principles of the government's burden to prove bey
ond a reasonable doubt,even in a Plea Bargain, the validity of the evidence in
a conviction used to sentence any defendant facing a charge for criminal offense,
8
and that the Newly Discovered Evidence contradiction the determination of appe
llant's guilt, should be weighed by the Court charged with deciding such a claim.
Appellant avers that the only evidence the State has is invalid and inadmissible
evidence to. wit: a coerced Child Protective Service signed confession obtained
by placing appellant in a utility closet and a Police interrogation video that
was obtained by pressuring a mentally ill U.S. Army Combat Veteran into taking
responsibilty as stated by the San Antonio Police Chaplain's Affidavit and the
Police threat that they would arrest appellant if he did not cooperate. (Pro Se
Brief and AFF. C 2).
Appellant avers that Fourth Court of Appeals may have overlooked factual
insufficiency evidence contained in. the record and if not for court appointed
appellant counsel's failure to file a Formal Bill of Exception to included other
evidence mentioned or referenced by motions, transcripts, and Affidavits in the
record the Honorable Court would have provided appellant relief, and as such
appellate counsel prohibited the Court from applying "Rule of Law" as guarnteed
in the "Factual Conclusivity Clause in Article V, § 6, of the Texas Constitution
which makes a Direct Appeal Court's Factual-Sufficiency declsioin final and
conclusive." Appellant has claimed.^manifest injustice by filing a Motion to
Arrest Judgment in the 399th District Court in accordance with the 3 year rule
to file for New Trial based on Newly Discovered Evidence to wit: Arizona Officer
Retired, Steven Allen Costello. (CR 168, 183, 184, and AFF. R 1-2). The Cleri
cal Error stated in Appellant's Nunc Pro Tunc to Correct Offense Date to the
correct stipulated Date in the Plea. Bargain did not cause the Court to lose
jurisdiction as assumed by the appeals counsel, instead the error needed to be
corrected in order for appellant's Direct Appeal to have merit that appellant's
claim to No Crime and insuficiency of evidence; For Date of Sept.3,2000 Count I.
Thus,- the Fourth Court of Appeals' Opinion is in direct conflict with the
rationale in Rios v. State, 377 S.W.3d 131(Tex.App.[lst Dist.-Houston]2012) and
9
Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S.Ct.1555,1567, 131 LEd.2d 490(1995)
and Brady v. Maryland, 373 U.S. 83,87^83.S'-CT 1194, 1196-97, 10 L.Ed.2d 215(1963);
Ex parte Robbins, 360 S.W.3d 446, 476(Tex.Crim.App.2011); Ex parte Chabot, 300
S.W.3d 768, 770-71(Tex.Crim.App2009), and the Sixth and Fourteenth Amendments
to the United States Constitution and Contracts Clause of Art. I, § 10, cl. 1.
Also Ex parte.Elizondo,,.947 S.W.2d 202(Tex.Crim.App. 1996) quoting Herrera;v..
Collins, 506 U.S. 433-34, 113 S.Ct. at 878, 122 L.Ed.2d at 238(1993)(Blackmun.
J.Dissenting); Tex. Const. Art. V § 12(b) Jurisdiction of the Court,TRPG R.3.09(a).
Issue For Argument Number 3
Appellant argued that the trial court erred in allowing the State to go into
404B matters not contained in the State's Notiee(s),after the Court pronounced
that., it would ONLY allow matters, contained in its Notice(s) and said Ruling is
contained in the Sentencing Hearing Transcript; further the court erred in
excluding appellant's VA Psychiatric, Psychological Mental IllnesstRecords
from an adequate Competency and Sanity Evaluation, a denial of Appellant's Due
Process Rights of the Fourteenth Amendment and Fair Trial Proceedings.
Statement of the Case
Appellant adopts the recitation of facts as set out on Page 1 of this PDR
for the purpose of this Issue for Argument-Number 3.
Authority
Canon 2, Code of Judicial Conduct, where a judge shall comply with the law
and should act at all times in a manner that promotes-public confidence in the
integrety and partiality of the judiciary. The Appellate Court must determine
whether, beyond a reasonable doubt that the error made no contribution to the
conviction or the punishment. Burk$v. State, 876 S.W.2d 877,904-05(Tex.Crim.App.
1994).
Appellant on pro se brief avered that'he was charged for some other bad
act(s) not adjudicated nor investigated. Before the Court was the 404B's Police
"* . 10
Report CR-107 for the court to limit theeprosecutor to the State's Notice(s),
information containded in it, and the information on the Police Report. The
Honorable Court erred by allowing the State to go into matters NOT Contained
in the State's Notice(s) and the Police Report as stated and attested by the
Sentencing Court Transcript. The Trial Court Ruled on the Specific 404B issue
MR.. Gonzalez: ... I will object to that witness. I believe that she
is a surprise witness that will testify about some
404B matters that we had noticed the State with a
pretrial motion. We did-not get proper notice. We
just learned of this witness today, and because of,
that we claim surpriseand we object to her
testimony.
(Sentencing Hearing RR-97 8-15). The State Replied that it was trial counsel
who provided this 404B witness.
MS. CARION: — the Defense provided
notice that she would be testifying.
(Sentencing Hearing RR-97 18-19). Then the trial judge made a Ruling for the
issue to be preserved for Appeal purposes, T.R.A.P. Rule 33.1(a)(1)(A) and Rule
33.1(a)(2)(A) and then the trial court went aganist its own Ruling by allowing
issues testified by the 404B witness not contained in the State's Notice an
abuse of the court's discretion.
THE COURT: All right. I'm going to
allow Ms. Carion to go into matter that are
contained in the 404B notice only.
(Sentencing Hearing RR-100 17-19). On pro se brief appellant showed Reversible
Error in the case proven by the transcript:T.R.A.P. Rule 44.2(a) and said error
did contribute to the conviction because it reduced the credibility of appallant
and said issue also prejudiced the punishment causeing a stiff sentence of 30
years, thus the error law caused the rendition of an improper judgment as shown.
On the issue of Court erred in excluding appellant's VA Psychiatric, Psyc
hiatric, Psychological Mental Illness Records from an adequateaComptency andd
Sanity Evaluation is evidenced by the State's Examining Dr. Skop's evaluation
Reports, where the Records claimed were not available as he claimed to have.
11
VA Dr. Ybarra-Salinas' letter to the Court was not-.available because it was
made on June 18,2009, while the Competency/Sanity Examin took place on June 8,
2009 and the Final, Report was Completed on June 11,2009. (AE-10 compare to AE
6 and 9). Although, the Court had said documents in hand on Sentencing hearing
day of August 10,2009, =-41 did not sua sponte stopcany of the court proceedings
of June 10,2009 Plea Hearing nor Sentencing Hearing of August 10,2009 a direct
abuse of the court's discretion as stated on pro se brief.
In reaching its opinion, the Fourth Court of Appeals opinion is in direct
conflict with the Fundamental Fair Trial Due Process Rights guaranteed to defe
ndants facing ciminal charges and Fundamental Canon 2, Code of Judicial Conduct
and Burksv. State, 867 S.W.2d 877, 904-05(Tex.Crim.App.1994); also Tex.Rules of
Appellate Procedure Rule 44.2(a) and Rule 33.1(a)(1)(A) and 33.1(a)(2)(A).
Conclusion and Prayer
Appellant prays that this Court grant his petition for Discretionary Review
and following the grant of review, appellant prays that this Court reverse
the judgment of the Fourth Court of Appeals and Remand the case to that Court
for a proper analysis of the issues; Grant Review under T.R.A.P. Rule 66.3(a)(c)
-acd^- Respectfully Submitted,
Richard Lares, Pro Se
TDCJ-ID #1592255
Pack 1 Unit
2400 Wallace Pack'Rd.
Navasota, Texas 77868
Pro Se
12
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was sent to
the Honorable Clerk of the Court of Criminal Appeals of Texas at P.O.Box 12308,
Capital Station, Austin, Texas 78711 by U.S. Postal Mail Inmate Drop Box on
December 18,2015.
Appellant further Request that a copy please be sent to the Bexar County Distr
ict Attorney's Office at Paul Elizondo Tower, 101 W.Nueva St., Fourth Floor,
San Antonio, Texas 78205 because Appellant is Indigent and unable to send it
himself for lack of copy machines in prison and appellant is not at liberty.
//
^-^
Richard Lares, Pro Se
Certificate of Compliance
Pro Se Appellant on appeal certifies this petition was typed on typewriter
and complies with Texas Rules of Appellate Procedure Rule 68.5 as to Number of
pages being 12 pages from the Conclusion and Prayer.
Richard Lares, Pro Se
TDCJ-ID #1592255
Pack 1 Unit
2400 Wallace Pack Rd.
Navasota, Texas 77868
13
4~xlviU'^ ^-
Law Offices Of
HITCHINGS & POLLOCK
645 S. Presa
Sart Antonio, Texas 78210
Barry P. Hitchings Telephone: (210)224-1433
Jufe B. Pollock Telecopier: (210) 224-4840
May 30,2015
Mi. Richard Lares
Prisoner No. 1592255
Pack 1 Unit
2400 Wallace Pack Rd.
Na/asota, Texas 77868 .,
RE: Richard Lares, Appellant vs. State of Texas, Appellee
Fourth Supreme Judicial District Court of Appeals No. 04-15-00183-CR
Trial Court Number 2006-CR-l 0110
Dear Mr. Lares:
Enclosed is a copy of:
(1) theBexar County Criminal Justice System Event Log Display (also known asthe"D"
Page) in State of Texas vs. Richard Lares, CauseNumber 2006-CR-10110;
(2) a May 2, 2015 letter to Court Reporter Yvette Mendez (a visiting court reporter to
the 399* District Court);
(3) May 20, 2015 e-mail correspondence with attachments to Court Reporter Yvettc
Mendez inan effort to assist herin"re-creating" the record ofthe sentencing hearing
conducted on August 10, 2009;
(4) a May 5,2015 letter to Court Reporter Cheryl Lyren (aretired court reporter);
(5) Court Reporter Cheryl Lyrcn's Reporter's Record for the June 10,2009 plea hearing
in your case the original ofwhich Ms. Lyren filed with the Fourth Court ofAppeals;
(6) 216-pages representing the Clerk's Record filed bythe Bexar County District Clerk
with the Fourth Court of Appeals; and
(7) a May 29, 2015 Amended Notice of Appeal (filed within 30-days of 399* District
Court JudgeRayOlivarri'sMay 1,2015 denial of your"Movant's Motion ToArrest
Judgment") filed with the 399,h District Court with a courtesy copy provided to the
Fourth Court of Appeals.
As I informed you in my April 1.3, 2015 and May 8, 2015 letters to you my notice of
appointment recites — "Notice of Appointment - Appeal." This means that my appointment as
your court appointed attorney is to represent you in your "direct appeal" of your conviction and
punishment. An attorney on a "direct appeal" is limited to raising errors that occurred at the trial
^ which are found in the "record" ofthe case. The "record" consists oftwo things: (1) the "Court
Clerk's Record" which was prepared by the Bexar County District Clerk and (2) the "Reporter's
Record" which is prepared bycourt reporters "typing down" what is happening in your case when
yourcase is beingconsidered by thejudge. For a "direct appeal" the court reporters will type upan
original "Reporters Record" and file the original record with the Fourth Court ofAppeals. The
"Court Clerk's Record" and the "Reporter's Record" becomes theofficial record of the trial court
proceeding. The "Court Clerk's Record" and the "Reporter's Record" becomes the official record
that is sent up to the appellate court for review.. Normally, in reviewing court reporters' records
to develop issues to raise in a Direct Appeal, lawyers will look to see ifthe trial attorney made an
objection to evidence "coming in" orto evidence that was "kept out." As a general rule, unless
evidence is objected to at the trial court level an objection at the first time on direct appeal is
considered waived. The reporters' records inyour case shows very few objections from your trial
attorney. Under the Texas Rules ofAppellate Procedure, the court reporter has sixty (60) days from
the date of sentence in which to file the "Reporter's Record" with the court of appeals. Court
Reporters have the riglit to file a motion for extension of time to file the Reporter's Record and
frequently do file requests for extension. Any "errors' claimed in the "direct appeal" must find
support in "the record."
Your case is different from the "normal" case on direct appeal. First, according to the
records ofthe Bexar County District Clerk, you were "sentenced" by then 399* District Court Judge
Juanita Vasquez-Gardncr on August. 10, 2009 and Judge Vasqucz-Gardner signed a "Judgment of
Conviction byCourt - Waiver ofJury Trial" the next day onAugust 11, 2009. This was the same
"Judgment of Conviction - Waiver of Jury Trial" which erroneously recited the alleged "date of
offense" as "03-23-2006" rather than alleging the date for which you entered a plea of nolo
contendere of"09-03-2000" which later became the subject ofthree motions for nunc pro tunc which
yousubsequently filed. According to theTexas Rules of Appellate Procedure the deadline for the
Court Reporter to file a "Reporter's Record" (i.e. 60 days from the date of sentence) would have
been in 2009.
Second, your case did not involve a "contested trial" but consisted of a plea of "nolo
contendere" onJune 10,2009 for which there isa court clerk's record (pages 82 to 125 ofthe Court
Clerk's Record which isenclosed) and areporter's record (i.e. court reporter Cheryl Lyren's 8-page
reporter's record of the June 10, 2009 plea hearing a copy of which I enclosed with this
correspondence). Visitiug court reporter Yvette Mendez: prepared an original and a copy of a
"Reporter's Record" (ofthe August 10,2009 sentencing hearing) on June 30; 2010 which according
to Ms. Mendez your wife requested and paid for. According to Ms. Mendez' recollection, she gave
the original and a copy of the August 10, 2009 sentencing hearing to your wife. When I checked
with the Fourth Court of Appeals, the original "Reporter's Record" of the August 10, 2009
sentencing hearing was never filed with theFourth Court of Appeals. When Ihadmyfirst telephone
conversation with court reporter Mendez inApril 20151 had to"refresh" hermemory about the case
and she told me that she would try to find a record of herold"reporter's record." I told her that I
would besending hera letter setting outwhatI needed from herwhich I senton May 2,2015. On
May 18,2015 your mother and stepfather came by myoffice and your mother provided me with a
"copy"of Ms. Mendez' reporter's record of the August 10, 2009 sentencing hearing consisting of
123-pages which Ihave reviewed in its entirety. After receiving the copy from your mother 1asked
a representative ofthe Fourth Cotirt ofAppeals if the "copy" could be filed with the Fourth Court
ifMs. Mendez was not able to prepare an original. The Fourtli Court representative informed me
that the "original" ofthe sentencing hearing would have to be submitted to the Fourth Court by the
court reporter. Court Reporter Mendez. subsequently informed me that the old August 10, 2009
"Reporter's Record" was prepared using old "software" that she didn't have anymore and she would
need to convert the old "Reporter's Record" from the old software into anew "Reporter's Record."
Ms. Mendez asked me to e-mail copies ofpages 1,2, 3,4, 5,120,121,122 (which is ablank page)
and 123 to assist her in the converting process. She later informed me that she would need to have
the entire copy which 1received from your mother inorder to prepare anew reporter's record. Ms.
Mendez picked up the copy from my office on May 23,2015. Ms. Mendez informed me that with
the conversion the pages would probably be different. When I checked with the Fourth Court of
Appeals on May 29, 2015, Ms. Mendez had still not submitted the sentencing "reporter's record"
nor had Ms. Mendez requested an extension. 1will contact Ms. Mendez next week.
Third, in August 2010 a pro-se application for a writ of habeas corpus in state court
pursuant toArticle 11.07 ofthe Texas Code ofCriminal Procedure was filed. On August 24,2010,
then 399lh District Court Judge Juanita Vasquez-Cardner signed an "Order Designating Issues" and
identified "ineffective assistance ofcounsel" as the issue requiring resolution in the state Article
1L07 writ ofhabeas corpus proceeding. Also on August 24,2010, Judge Vasquez-Gardner signed
an "Order on Application for Post Conviction Writ" requiring your trial attorney Joe D. Gonzales
to file anaffidavit addressing the following issues:
a. Counsel told Applicant that he would be placed on probation if he
entered a plea oinolo contendere.
b. Counsel failed to inform Applicant that he was not eligible for
probation.
c. Counsel failed to offer into evidence Applicant's VA and medical
records in order to establish Applicant's incompetence and to rebut,
the state's witnesses' claims thatApplicant is competent;
d. Counsel failed to file a notice of appeal after the triaLcourt admitted
evidence of extraneous offenses during Applicant's sentencing
hearing.
Attorney Patrick R. McCann subsequently entered an appearance as your attorney in the habeas
corpus case and filed a Motion for Evidentiary Hearing;which Judge Vasquez-Gardner denied on
September 8, 2011. Mr, McCann subsequently withdrew as your attorney in September 2011
claiming that you had terminated his services. On October 24,2011, Judge Vasquez-Gardner signed
an "Order" on your pro-se application for post-conviction writ of habeas corpus which contained
detailed Findings ofFact and Conclusions ofLaw and recommended that the pro-se application for
post-conviction writ ofhabeas corpus be denied and thata copy of theOctober 24,2011 "Order" be
forwarded to the Texas Court of Criminal Appeals. On December 7, 2011, the Texas Court of
Criminal Appeals denied without written order the application for writ of habeas corpus on the
findings ofthe trial court without ahearing inwrit number WR-76,700-01. Subsequently, onAugust
15, 2012 the U.S. District Court for the Western District of Texas denied your post-conviction
federal writ in SA-11-CA-1073-OG.
Fourth, on October 5, 2012, then 399th District Court Judge Vasquez-Gardner signed an
Order Appointing Appellate Counsel Vincent Dennis Callahan (Bar#: 3651700) torepresent you on
a direct appeal in accordance with Article 26.04(f) or 26.052 of the Code of Criminal Procedure
(Clerk's Record page 139). However, on November 15, 2012, Mr. Callahan filed an "Appointed
Counsel's Motion toWithdraw as Attorney ofRecord" ondirect appeal claiming, inpart, that "the
state writ application, the federal writ application and the pending pro se pleading (Permission to
FileNotice of Direct Appeal and Briefin Support) all state the same complaints of thedefendant,
including an allegation of insufficient evidence (but not a recantation by the complainant) and a
request to file an out of time appeal" and "further attempted prosecution of the pending pro se
pleading would be an abuse of the writprocess and also be frivolous." (Clerk's Record pages 140-
142). On the same day (i.e. November 15, 2012) Judge Vasquez-Gardner granted attorney
Callahan's Appointed Counsel's Motion to Withdraw as Attorney of Record. (Clerk's Record page
143). Normally, aperson wanting to appeal will pursue adirect appeal first and ifthe direct appeal
isunsuccessful, theperson will then pursue apost-conviction application for awrit ofhabeas corpus.
However, for any number of reasons, in your case the post-conviction writ of habeas corpus was
pursuedfirstfollowed bythedirectappeal. Unfoitunately, whenMr. Callahan's motiontowithdraw
was granted on November 15, 2012, you were never able to pursue a direct appeal.
Fifth, on January 26,2015,399'" District Court Judge Ray Olivarri signed a"Judgment Nunc
Pro Tunc" which recited that "[t]he Court, having concluded that a clerical error was made in the
defendant's judgment of August 10, 2009 which resulted in an improper Date of Offense on
defendant's judgment, hereby orders the defendant's judgment changed to read as follows: Date
of Offense: 09-03-2000." (Clerk's Record page 271). The Clerk's Record then recites that on
March 5,2015you filed a pro-se "Motion to Arrest Judgment" (which wasplaced in theprison mail
box on February 25,2015). (Clerk's Record pages 179-207 including attachments). Jnyourpro-se
"Motion to Arrest Judgment" you assert that:
On February 2, 2015 Movant received the Court's Judgment and its
ORDERto change OffenseDateto 09-03-00, eventhough movant provided
the Court with a proper NOTICE that ifthe Honorable Court did GRANT the
change it would Jose Jurisdiction and its Judgment would be VOID. See
Movant's Nunc Pro Tunc Motion to Correct Clearical (sic.) Error Page 2
Lines 20-22. This being a Judgment Ruling imposed on the Sentence may
entitle movant to Arrest ofJudment (sic.) As stated in Rule 22.2 (a), (b) and
[c], Tex.App.Pro.R.. Because the Judgment Rendered is Contrary to Law for
want of Jurisdiction.
(Clerk's Record page 179). On Page 2 ofyour pro "Nunc Pro Tunc Motion to Correct Clearical
Gs/c.) Error" you assert under the heading of"NEWLY AVAILABLE/DISCOVERED EVIDENCE"
that:
This third Party Credible Affidavit [photograph and Affidavit of Retired
Arizona Officer Steve Allen Costello] gives merit to Movant's Actual
Innocence Claims of having a Sound Alibi that was never subpoena or
investigated by trial counsel for the alleged date inCount ISeptember3,2000
as seen onMovant's [writ ofhabeas corpus] 11.07 Exhibit 104. These facts
being true render The 399* Judicial District Court's Judgment VOID forwant
ofjurisdiction to prosecute. Lowervv.Estelle. 696 F.2d 333 (5* Cir. 1983).
(Clerk's Record, page 165). A summary of the issues raised in your pro-se "Motion to Arrest
Judgment" is as follows:
1. The January 26, 2015 Judgment Nunc Pro Tunc signed by Judge
Olivairi correcting the alleged date of theoffense from the incorrect
"03-23-2006" to"09-03-2000" causedthe 399*DistrictCourtto "lose
Jurisdiction and its Judgment would be VOID. . . . because the
Judgment Rendered is Contrary to Law for want of Jurisdiction.
2. The "alleged victim's affidavit (complaint) is VOID of alleging an
offense for 09-03-2000 when she was 10 years old and in the 5*
Grand and attending Glen Oaks Elementary. The "allege Victim's
Complaint on Sworn Affidavit made toDet. Armstrong 'Mybirthday
is 09-04-89' and 'I was around theage of thirteen . ,. when my Dad
first had sexual relations with me" Lines 1-6. Ifthe complaint is the
charge then the instrument submitted by its tenor did not complain
about 09-03-00 onits face, because she turned 13 y.o. on 09-04-02.
See [writ of habeas corpus] 11.07 Exhibit 101, and 105. Under the
Heading of"NEW EVIDENCE" attached photograph ofcomplainant
in Camp Verde Arizona standing next to Arizona Officer Steve
Costello on 09-03-2000 (the date of offense alleged in the
Indictment).
3. Trial attorney Joe Gonzales caused you to enter a nolo contendere
5
plea by deception thus rendering your plea of nolo contendere
involuntary. Ifour jurisprudence is to regard a Plea Agreement asa
contract between the defendant and State, there cannot bepermitted
even the slightest measure of fraudulent inducement to that contract.
CitineRios v. State 377 S.W. 3d131 (Tex.Crt.App.2012). In Amava
Holding that a guilty plea induced by deception, an unfulfilled
promise, or misrepresentation is anInvoluntary Plea, and that a trial
court's unenforceable promise to reviewthe Government's decision
whether tofile a § 5K 1.1 Motion rendered a guilty plea involuntary.
United States v. Amava. Ill F.3d 386, 388-89 (5th Cir. 1997).
Although not claimed in your pro-se "Motion Requesting Nunc Pro Tunc for Time
Resolution" file dated February 27,2012 (Clerk's Record 132-138); your pro-se April 9,2014 file
dated "Motion to Dismiss for Lack ofSubject Matter Jurisdiction" (Clerk's Record 147-152); your
pro-se December 3,2014 filed dated "Motion for Nunc Pro Tunc onPlea Bargain"(Clerk's Record
157-163); oryour March 5,2015 file dated "Motion to Arrest Judgment"(Clerk's Record 179-207),
in several letters you addressed to meyou claim that the action of 399* District Court Judge Ray
Olivarri action in the "Judgment Nunc Pro Tunc" correcting the alleged date of offense from the
incorrect "03-23-06" date to the date of 09-03-2000 caused the Judgment to become VOID AB
INITIO. In aApril 22,2015 letter to me with an attached "NOTICE" to the Fourth Court ofAppeals
you recite that:
the 399th's Judgment Nunc Pro Tunc is Appealable due to the
Honorable Court's Original Judgment and Conviction being VOID ab initio
for lack of Jurisdiction to actas a Court in Cause 2006-CR-10110, because
the alleged victim did notallege anycriminal offenses occurring onCount I
DateofSeptember 3,2000and Count IIDate of September 3,2001 when she
was 9 and 10 years old respectably. In alleged victim's Affidavit to Dct
Armstrong clearlystatedthcfaic.) She is alleging a date for whenshe was 13
years old not 9 or 10. This being true renders the indictment Void and the
contracted Plea Agreement Involuntary for fraudulent false information
grossly misrepresented by the detective and the D.A. of Bexar County. A
Crime Not Alleged by the tenor of the Affidavit is a Jurisdictional Matter
which does not give the court any inherent power to act as a court,
Appellant's in court testimonyis Prima Facie to this material issue. See RR
Pages 88- linesl8, 19 and 20. In order to better clearify (sic.) All issues
appellant has consistently requested an Evidentiary Hearing but has been
denied at every level oftic Courts.
The Honorable 399th Court correctly corrected the clenicale (sic.)
error but ignored the rest of the Nunc Pro Tune's material evidence for lack
of Jurisdiction in accepting a Plea Bargain Based on induced fraudulent
information in which the Court is unable to accept such pleading based on
erroneous information, its inability toeven offer said contractual agreements.
TheAppellant should beReleased Forthwith due to wrongful incarceration
and illegal sentence.
In a April 25, 2015 letter to mc you state that:
It turns out that I am not under any time constraints or limits as my
case is a Void case ab initio. A void case can be appealed / raised at any
time. Trust me, I read the T.C.C.P. Rule!
In an April 25,2015 "NOTICE to the 4* Court of Appeals" in paragraph I you recite:
Appellant avers that the 399* Judicial District Court correctly changed the
Offense Date to reflect the Plea Bargain's Contractual Agreement as per
Appellant's Nunc Pro Tunc Motion to Correct Clerical Error, but the
Contract wasVoid abinitiobecausethe Offense DateofSept3,2000 was not
alleged by the alleged victim's affidavit as an offense being committed
againsther. As such thejurisdiction ofthe 399*Judicial District Court is not
inherent of auy jurisdiction to act as a court in case at bar.
In the April 25,2015 "NOTICE tothe 4* Court ofAppeals" you cite as authority the cases ofRios
v- State, 377 S.W.3d 131 (Tex.App.-Houston [1st Dist.] 2012); Ex Parte Elizondo. 947 S.W.2d 202
(Tex. Crim. App. 1996); and M.enefee v. State. 287 S,W,3d 9 (Tex. Crim. App. 2009).
Ina April 28,2015 letter to meyou demand thatI—"Dispute myJudgment Being Void Ab
initio!"
In a May 12, 2015 letter to me you state that "I would like for you to make a 60 (b) (4)
Motion— The Judgment is Void; "ab initio." The Rule states "after an appealhas been docketed
in the appellate court and while it is pending, such a mistake may be corrected only with the
appellate court's leave."
In a May 16, 2015 "NOTICE to the 4* Court of Appeals" in paragraph IV you state:
Appellant avers that he informed appointed counsel of his intent to
present an Actual/Factual Innocence Defense with reference to the Honorable
399th's Void Judgment "ab initio" due to induced misadvised by trial
counsel to Plea to an Offense Not Alleged date of Sept. 03,2000 as stated in
r
appellant's "Motion to Arrest" Exhibit "A". But said issue was not presented
by appeals counsel for whatsoever reason and appellant wished to Notice the
Honorable Appeals Court that he would like counsel to present said issue if
Show Cause Order Response is approved.
Liberally construing your pleadings, notices and letters regarding the judgment in your case either
being Void or Void Ab Initio, you have cited the following cases in support of this proposition:
1. Rios v. State, 377 S.W.3d 131 (Tex. App. -Houston [1" Dist.] 2012
pet ref'd);
2. Ex Parte Elfennrin, 947 S.W.2d 202 (Tex, Crim. App. 1996);
3. Menefee vt State, 287 S.W.3d 9(Tex. Crim. App. 2009);
4. Lowcrvv.Estellc!, 696 F.2d 333 (5* Cir. 1983);
5- United States v. Amava 111 F.3d 386 (5lh Cir. 1997);
6. Roberts v. State, 489 S.W.2d 113 (Tex. Crim. App. 1973);
7. Durst v. State, 900 S.W.2d 134 (Tex. App. -Beaumont, 1995 pet
ref'd);
8. State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994);
9. Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)
Rios v. State is insomc respects like your case on the issue ofan involuntary/voluntaryplea
Believing that the DWI breath tests showed him twice the legal limit for intoxication, Rios pled
guilty to aDWI and was placed on community supervision. Later the trial court granted the State's
Motion to Revoke Rios' community supervision and sentenced Rios to 120 days confinement. As
he was being sentenced to serve 120 days incarceration, the State informed Rios that the breath tests
results showing his blood alcohol concentration to be approximately twice the legal limit were
invalid and that the breath test technician had lied. Rios then applied to the trial court and was
denied habeas corpus relief. At the habeas corpus hearing the State and Rios attorney even agreed
to adismissal ofthe charges against Rios. Rios testified tliat he pleaded guilty based upon the breath
test results and without the breath test results he would not have entered aplea ofguilty. However,
the habeas corpus trial court judge acted more like aprosecutor than ajudge-and the trial judge
actively cross-examined Rios. The Houston Court ofAppeals criticized the trialjudge and concluded
that itwas undisputed that the technical supervisor who maintained the intoxilyzcr had falsified the
calibration records and misrepresented the scientific validity ofRios' breath test results. The Houston
Court of Appeals granted Rios his requested habeas corpus relief. There are several differences
between the Rio$ case and your case, First, Rios is astate habeas corpus proceeding and your case
is aDirect Appeal. Second, in a habeas corpus proceeding Rios' attorney could go outside the
record and was hot limited to the original trial court record. Third, the prosecutor for the State
agreed that the charges against Rios should be dismissed and the habeas corpus relief granted.
Apparently the State did not agree to your habeas corpus claims, Fourth, in Rios. the State agreed
that the prosecution DWI records were falsified.
Ex parte Elizondo isahabeas corpus case and not aDirect Appeal. Elizondo petitioned for
habeas corpus reliefbased upon newly discovered evidence showing actual innocence and his habeas
corpus attorney was able to go "outside" of the trial court record. The Texas Court ofCriminal
Appeals ruled that in a habeas corpus proceeding claiming actual innocence based upon newly
discovered evidence:
if an applicant can prove by clear and convincing evidence to this Court, in
the exercise of its habeas corpus jurisdiction, that a jury would acquit him
based onhisnewly discovered evidence, heis entitled to.relief.
Hlizondo at 209. In Elizondo. Joe Elizondo was convicted .in-a jury trial for aggravated sexual
assault ofhis step-son Robert an given alife sentence. However, over 13-years later when Robert
and his younger brother were grown men, they claimed that the testimony given over 13-years
previously by Robert was false. At the habeas corpus proceeding both brothers testified that "their
natural father relentlessly manipulated and threatened them into making [false] allegation against
Elizondo inorder toretaliate against their natural mother, his ex-wife, for marrying Elizondo years
before." Id. at 210. The effect of Robert recanting his testimony convinced the Texas Court of
Criminal Appeals to grant Elizondo habeas corpus relief. Unfortunately, these are not the facts in
your case.
In Mencfee. Robert Menefee was convicted ona guilty plea ofpossession of cocaine with
intent to deliver inan amount ofmore than one but less than four grams. Menefee also pled true to
an enhancement allegation that the offense occurred within 1000 feet ofan institution ofhigher
learning subjecting him to punishment as an enhanced first-degree felon. The trial court assessed
his punishment at confinement in the penitentiary for 56-ycars. On appeal, Menefee argued that the
written stipulation in his plea to the trial court simply recited the phrase "did then and there with
intent to deliver" (leaving out the key phrase "possess" with intent to deliver) which was the legal
charge. In a6to 3decision, the Texas Court ofCriminal Appeals vacated and remanded Menefee's
case to the Court ofAppealsfor consideration ofunresolved issues. However, these are not the facts
in your case.
l^wcrvv. Estelle is an appeal to the Fifth Circuit ofa federal district court's denial of a
petition for habeas corpus ofastate conviction. Lowery was charged with both murder with malice
and robbery by firearms in state court. In the murder case Lowery was sentenced to death. While the
appeal ofthe murder case was pending, the robbery charge came to trial. For some reason, the State
in the robbery case struck the indictment's allegation "by using and exhibiting afirearm, to wit: a
gun" which motion was granted by the trial court. On the redacted indictment, the jury convicted
Lowery and assessed punishment for aterm ofnot less than five nor more than five hundred years.
y
Lowery's murder conviction was subsequentlyreversed by the Texas Court ofCriminal Appeals and
the trial court subsequently granted Lowery a new trial on the Robbery charge. On retrial of the
robbery charge, the Statc revived the robbery indictment'sallegation ofthe use ofafirearm. Lowery
was subsequently sentenced to terms of 99-years on each offense. In a habeas corpus post
conviction writ application Lowery claimed that: (1) the dismissal ofan indictment conclusively
ousts the trial court ofjurisdiction; (2) asubsequent order purporting either to reinstate the cause or
enter judgment thereon isvoid ab initio; (3) the defect cannot be waived, but can be raised at any
point in direct or post-conviction proceedings; (4) the striking ofthe indictment's allegations ofuse
of a firearm is tantamount to dismissal of the greater offense; and (5) argues from the settled
principles governing dismissal ofwhole indictments that aconviction entered on acharge including
areinstated clement isvoid. The Fi fth Circuit concluded that - "Lowery cites, and our research has
unearthed, no Texas precedent directly addressing his argument" and "accordingly leave these
matters to other proceedings. Id. at 337, 339. The Lowerv case involves an original dismissal of
"part" ofan indictment and asubsequent retrial on the "reinserted" portion ofthe original indictment
that had been earlier dismissed. Your case does not involve adismissal ofan indictment or of apart
of an indictment and a subsequent re-trial. Also, in Lowerv. in the opinion by Circuit Judge
Johnson, the Fifth Circuit didn't rule onLowery's claims relating to the indictment.
United States v. Amava involved an involuntary pica relating 'to federal sentencing
guidelines, Aixiaya entered aplea ofguilty pursuant to aplea agreement to acharge ofaiding and
abetting possession with intent to distribute inexcess of5kilograms ofcocaine. In aplea agreement,
the government reserved the option to act within its discretion to move for a departure from the
applicable sentencing guidelines pursuant to §5K ofthe sentencing Guidelines. Amaya's attorney
for the record stated that Amaya's plea was made "in return for a 5K request and expressed concern
that a different prosecutor might take over the case and not file a § 5K motion for a downward
departure. However, then U.S. District Court Judge Samuel Kent assured Amaya that it would
compel the Government to fulfill its side of the bargain provided that Amaya complied with the
terms ofthe pica bargain. At sentencing, the Government did not move for a downward departure
pursuant to 5K1.1. To Amaya's shock and disappointment, Judge Kent then informed Amaya that
"contrary to its earlier assertions, it hadno powerto inquire into theGovernment's decision not to
file the §5K1.1 motion, nor did it have the power to treat Amaya's fulfillment ofthe conditions of
the plea agreement as if a § 5K1.1 motion had been filed. Amaya's trial attorney then moved to
withdraw Amaya's guilty plea which Judge Kent denied. The district court then sentenced Amaya
to 120 months prison, Years later the district court granted Amaya permission topursue anout-of-
time appeal. The Fifth Circuit ruled concluded that "a situation inwhich a defendant is induced by
deception, anunfulfillable promise, ormisrepresentation to enter a pJea of guilty does not meet the
standard of voluntariness articulated by the Supreme Court and such a plea is involuntary.
Fortunately for Amaya, thecourt reporter took thevarious statements byJudge Kent and Amaya's
trial attorney and made it a part of therecord on appeal.
10
/
/
Roberts v. State involves a case in which an indictment was amended by striking out the
words -"ofthe 181* Judicial Distiict." The Texas Court ofCriminal Appeals affirmed the judgment
of conviction and ruled that"the appellant didnot take exception to the amended indictment until
after trial. He did not make atimely exception and avail himselfofthe provisions ofArticle 28.01,
V.A.C.C.P. Id. at 115.
Purgtv-.State is a case in which defendant Durst immediately after herguilty pleainwhich
she received a sentence of 10-ycars confinement informed the trial judge that she was under the
impression that she would only have to serve 1 month for each of the 10 years (i.e. 1/10th of the
time). The trial judge then asked Ms. Durst if she wished towithdraw her guilty plea "towhich she
responded in the affirmative." The trial judge letMs. Durst withdraw her guilty plea and start all
over. When the case came to trial again, Ms. Durst entered a plea ofguilty, and requested the jury
rather than the trial judge assess her punishment. The jurythen returned asentence of99-years. On
appeal, Ms. Durst complained that the trial judge committed error in allowing her to withdraw her
plea ofguilty without the necessity offiling amotion for new trial oramotion in arrest ofjudgment.
Id- at 137. The Beaumont Court of Appeals noted that
oncesentencehas beenimposed, a defendant mayreturnto her pre-sentence
status in one of the following three ways: (a) a motion for new trial; (b) a
motionto arrestjudgment; or [c] appeal. On thatbasis,the State allegesthat
the court was correct in granting the motion and in returning the case to
its presentence status. Incontrast tothe State'sposition, appellant contends
that the motion to withdraw plea cannot be a valid motion for new trial,
because it is not in writing. Appellant further contends thather motion to
withdraw plea should not be construed as a motion in arrest of judgment.
This Court is in agreement that there is no motion in arrest of judgment in
this case,
Youhavequoted the language in Durst thatyou are returned to apre-sentence status by a motion for
new trial, amotion to arrest judgment oranappeal in paragraph HI ofyour pro-se "Motion toArrest
Judgment." However, it is not simply the filing of a motion for new trial,.a motion to arrest
judgment or an appeal thatallows someone toreturnto a "pre-sentence status." To returnto a "pre
sentence status" the court would be required to grant a motion for new trial or a motion to arrest
judgmentor reverse a caseon appeal. As I previously informed you in your case andas I recited in
the Show Cause Response to the Fourth Court of Appeals, 399* District Court JudgeRay Olivarri
on May 1,2015 denied your Motion to Arrest Judgment.
State v. Bates, involved a motion for new trial, an order granting a motion for new trial as
to punishment only, a reversal of a trial court's orders, a reinstated conviction and an appeal to the
Texas Courtof Criminal Appeals. The Texas Court of Criminal Appeals ruled that:
11
s
s
y
[t]he Rules ofAppellate Procedure allow atrial court to modify, correct orset
aside judgments and orders through motion for new trial, motions to arrest
judgment and motions for nunc pro tunc. Tex.RApp.Proc. 30, 33 and 36.
Rule 36 vests a trial court with the authority to correct mistakes or errors in
a judgment or order after the expiration of the court's plenary power, via
entry ofajudgment nunc pro tunc. Ajudgment nunc pro tunc, which literally
means "nowforthen,"maynot beused to correct "judicial" errors, i.e.,those
errors which are theproduct of judicialreasoning or determination. Instead,
nunc pro tunc orders may be used only to correct clerical errors. . . .
Absent clerical errors a trial court can not alter orders granting a new trial
outside the time of its plenary power. Id. at 309.
Ex parte Rich involved the issue of whether Rich should be allowed to raise a claim of an
illegal sentence based upon an improper enhancement for the first time ona writ ofhabeas corpus,
or whether such claim is forfeited by: 1) Applicant's failure to raise it on direct appeal; or 2)
Applicant's pleaof trueto such enhancements during the plea proceedings. Rich hadbeen charged
with felony DWI with twofelony enhancement paragraphs involving injury toanelderly person and
delivery of a controlled substance. Rich pledguilty and was sentenced to 25years confinement. No
direct appeal was taken. Later, Rich learned thatthedelivery ofacontrolled Substance enhancement
charge had been reduced to a misdemeanor after a motion for new trial had been granted. The
habeas corpus trial court concluded thatatmostRich'sthird degree felony could have been enhanced
to asecond degree felony (2-20 years imprisonment), Thus, Rich'spunishment was for 5years more
than the maximum. The Texas Court of Criminal Appeals concludedthat:
Although Applicant bases his argument for relief on actual innocence
grounds, we believe thatit is not only unnecessary but incorrect to treat this
case as if it involves such a claim. Because one of the enhancements
underlying Applicant's sentence was proven to be untrue, Applicant has a
claim that is similar to those advanced in actual innocence cases. However,
Applicant's situation should be addressed as a claim of illegal sentence
because the mischaracterization of his prior offense affected his sentence,
ratherthan thetrialcourt's determination of guilt. Thereis no evidence that
Applicant is innocent of the delivery of the controlled substance offense
alleged in the enhancement paragraph, and the mischaracterization of this
misdemeanor conviction as a felony does not make him innocent of the
primary offense of driving while intoxicated.
Id. at 515. The Texas Court of Criminal Appeals granted Rich's habeas corpus and remanded the
case to the trial court to answer the charges set out in the indictment.
12
Ifyou have any other cases that you believe support aclaim that the judgment in your case
is void ab initio, please let me know. My reading of the nine cases that you have cited that are set
forth above does not support such aclaim of void ab initio. In addition, based upon the Court
Clerk's Record and the Court Reporter's Record in which Iam limited to in filing a"direct appeal"
to the Fourth Court ofAppeals, Idon't see anyway to pursue an Actual Innocence Claim or an Alibi
Defensein the direct appeal. The Actual Innocence claim is based upon your claim ofan involuntary
plea due to the ineffective assistance ofyour trial counsel Joe Gonzales. The Alibi Defense is based,
m part, on the complainant being in another state on September 3, 2000 (the date of the offense
alleged in the indictment) which also effects your Actual Innocence claim. In the U.S. Supreme
Court case ofTrevmo v. Thaler, which Iwrote to you about in my May 8,2015 letter, Justice Brcycr
writing for the United States Supreme Court stated:
First, Texas procedure makes it "virtually impossible for appellate counsel
to adequately present an ineffective assistance [of trial counsel] claim" on
direct review. As the Texas Court ofCriminal Appeals itselfhas pointed out,
"the inherent nature ofmost ineffective assistance" oftrial counsel "claims"
means that the trial court record will often fail to "contain the information
necessary to substantiate" the claim. Ex parte Torres. 943 S.W.2d 469, 475
(1997)(en banc). . . . In the vast majority ofcases, the undeveloped
record on direct appeal will be insufficient for an appellant to satisfy the dual
prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L,Ed.2d 674 (1984). . . . Texas courts in effect havedirected defendants
to raise claims ofineffective assistance oftrial counsel on collateral, rather
than on direct, review. As noted, they have explained why direct review
proceedings are likely inadequate, die's omitted. . . . They have held that
failure to raise the claim on direct review docs not bar the defendant from
raising the claim in collateral proceedings. Cites omitted. . . . They have
held thatthedefendant's decision to raisetheclaim on direct review does not
bar the defendant from also raising the claim in collateral proceedings. Cites
omitted. . . . They have suggested that appellate counsel's failure to raise
the claim on direct review does not constitute "ineffective assistance of
counsel." Cites omitted. . . . And Texas' highest criminal court has
explicitly stated that"[a]s a general rule" the defendant "should not raise an
issue of ineffective assistance of counsel on direct appeal," but rather in
collateral proceedings. Cites omitted.
133 S.Ct. 1911,1919,1920(2013).
In your April 25, 2015 "NOTICE to the 4,h Court ofAppeal" you claim that the trial court's
actions in granting your nunc pro tunc motion and changing the offense date in the "Judgment of
13
Conviction - Waiver of Jury Trial from "03-23-2006" to "09-03-2000" to "reflect the Plea Bargain's
Contractual Agreement" created a situation in which
the Contract was Void ab initio because the Offense Date ofSept 3,2000 was
not alleged by the alleged victim's affidavit as an offense being committed
against her. Assuch thejurisdiction of the399th Judicial District Courtis not
inherent of any jurisdiction to act as a court in case at bar.
There are several problems with this reasoning. First, Article 21.02 (6) of the Texas Code of
Criminal Procedure provides that "an indictment shall be deemed sufficient if it has the following
requisites''
...".
6. The time mentioned mu st be some date anterior to the presentment ofthe
indictment, and not so remote that the prosecutionofthe offenseis barred by
^ j>a"^ \ limitation.
In Sanchez v. State, the Texas Court of Criminal Appeals ruled that:
[b]ut that reasoning ignores that appellant was not just charged with criminal
conduct that might have occurred on January 24, 2006. He was, instead,
charged with conduct that might have occurred "on or about" January 24,
2006. Tt is well settled that the "on or about" language of an indictment
allows the State to_prove adate other than the one alleged in the
indictment as long as the date is anterior to thepresentment ofthe indictment
and within the statutory limitation period.
What that means $ the instant case is that the State could have obtained a
conviction of any solicitations by appellant to "Molly" that occurred on or
before the date in the indictment up to the statute of limitations cutoff date.
-7
400 S.W.3d 595,600 (Tex. Crim.App. 2013)(Emphasis Added). Tn Wright-v.State, the Texas Court
of Criminal Appeals ruled that: *^~—-
It is well settled that the "on or about" language of an indictment allows the
state to prove a date other than the one alleged as long as the date proven is
anterior to the presentment of the indictment and within the statutory
limitation period. SeeArt. 21.02(6): Sledgev. State.953S.W.2d253,255-56
(Tex. Crim. App. 1997); Mitchell v. State.330 S.W.2d459,462 (Tex. Crim.
t> App. 1959). There is no statute oflimitations period for murder. See Art.
V 12.01(1). Hence, whenappellant was indicted for murder, he was put on
v^y jfescUW^ ^ W Y/«K
CAUSE NQ.04-15-00183-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
RICHARD LARES,
Appellant
v»
THE STATE OF TEXAS,
Appellee
NOTICE
TO THE HONORABLE JUSTICE(S) OF SAID COURT OF APPEALS:
Comes Now, Richard Lares, Appellant herein, in style and cause and provid
es Notice to the Honorable Justice(s) that Court Appointed Counsel's performan
ce lias already fallen below an objective standard and in support of this claim
appellant provides the following?
I.
Appellant avers that NO Notice was sent to him from either the Honorable
399th Judicial District Court nor the Honorable Fourth Court of Appeals inform
ing nisi that Appellant was facing DISMISSAL for not properly filing Notice of
Intent to Appeal the 399thfs Judgment Nunc Pro Tunc correcting the date of Off
ense, on January 26,2015, ruling of the Court.
II.
Appellant avers that he received a CERTIFIED LETTER from a Court Appointed
attorney named Barry P. Hitchings and Julie B. Pollock on April 21,2015, 21
days after being appointed as per "'STIC NET " an Automatic EMAIL Generated by
the Court, dated March 26,2013 as the day Counsels were appointed. Said Email
states 1cYou are REQUIRED BY LAW to make every reasonable effort to CONTACT THE
DEFENDAOT not later than the end of the FIRST WORKING DAY after the date on
vMch you are appointed and to "INTERVIEW THE DEFMJAHf* as soon as practicle
thereafter." g^If 2.
(£ H
Appointed Counsels did not make any reasonable effort to contact Appellant
and thus failed to inform Appellant of Vital Information violating Rule 1.01 of
TRPC specifically Coroient six which gives an elucidation as to what is com:f;efcettt
and diligent representation. Counsels' deficient performance lias prejudiced
the Appellant by not allowing him to be prepared to defend and provide a Justi
fiable "Good Cause" for not filing his notice of intent to appeal. Although,
the Response may seem simple to prepare by any professional attorney at 1st*,
said response requires Interviewing the defendant in person wrian possible inor-
der to make a Full and Fair Defense preparation for the response.
III.
Appellant avers that he can pot have confidence in the appointed counsels'
representation since said counsels' have already started with a bonified, handy
cap/disability which may indicate that counsels' schedule may not allow them to
fit their new client into their already busy schedule, further denying appellant
competent legal representation. In order to Test appellant's aleged theory, the
appellant has provided TWO GOOD CAUSE reasons that have been accepted in the
United States Supreme Court in Trevino 133 S.Cto 1911 and Ex Parte McCarthy,
Tex;Court of Criminal Appeals 2013, to include the fact that the Appellant is
going through a Divorce and his soon to be ex-\*Lfe.j Karina Lares-Guevara, has
consistently refused to return appellant's legal working papers and Newly Disc
overed/Available Affidavits and Material Evidence that would exonerate the
Appellant and said bad faith lias caused many denials in State and Federal Courts.
IV.
Appellant avers that the 399th Judicial District Court, respectfully spea
king, has ignored his Motions and Requests for the examination of the Pre-Sent-
ence Investigation Report which clearly indicated Appellant's Actual/Factual
Innocence of Alibi Defense Credible Third Party Eyewitnesses of Appellant's
and the Aleged Victim's thereabouts on ALL Counts and Dates to include a ReTired
Arizona Officer's Affidavit and Testimony, Notarized but Appellant's Ex-Wife
•z / H
has once again refused to provide the original to the Appellant, but he does
have a JPay photo of the Officer's Affidavit with his name, badge number, and
current address provided with Ms intended testimony for the court.
V.
Appellant avers that the 399th's Judgment Nunc Pro Tunc is Appealable due
to the Honorable Court's Original Judgment and Conviction being VOID ab initio
for Lack of Jurisdiction to act as a Court in Cause 2006-CR-10110, because the
aleged Victim did not aiege any criminal offenses occurring on Count I Date of
September 3,2000 and Count II Date of September 3,2001 when she was 9 and 10
years old respectably. The Aleged Victim's Affidavit to Det.Armstrong clearly
stated the she is aleging a date for when she was 13 years old not 9 or"10.
This being true renders the indictment Void and the contracted Plea Aggreeraent
Involuntary for -fraudulent false information grossly misrepresented by the det
ective and the D.A. of Bexar County. A Crime Not Aleged by the Tenor of the
Affidavit is a Jurisdictional Matter which does not give the court any inhirent
power to act as a court. Appellant's in Court testimony is Prima Facie to this
material issue. See RR Pages 88 - Lines 18,19 and 20. In order to better clea-
rify ail issues appellant has consistantly requested an Evidentiary Hearing but
lias been denied at every level of the Courts.
The Honorable 399th Court Correctly corrected the clerricale error but ig
nored the rest- of the Nunc Pro Tune's matterial evidence, of Lack of Juridiction
in accepting a Plea Bargain Based on induced fraudulent information in which
the Court is inable to accept such pleading based on such errounotis information,
its inability to even offer said contractual agreements. Thus Appellant should
be Released Forthwith due to wrongful incarceration and illegal sentence.
PRAYER
WHEREFORE FRIMISES CONSIDERED, Appellant prays that the Honorable take all of
the above information into consideration and the unitfcie circumstances involved
that may have prevented appellant from filing, a proper Notice of Intent to App
3 / H
eal. Appellant further Notice the Hereorable Court of Appeals that he'finPJenta-
lly Ill/Disabled and requires an Attorney *;ho is ADA qualified to represent a
client with mental disorders. Appellant is a U.S.Amy SpecialForces Combat Vet.
who suffers from Post Traumatic Stress Disorder and Schitzo-Affective Disorder
as ruled in Military Veteran's Court for his disability being delusional and
having a false sence of reality. Inniat es have cone together and helped him
put this letter togetlier and all other pleading together as well, his own pleas.
SO MOVED, SO PRAYED FOR THAT THIS NOTICE BE CONSIDERED.
^ Sincerely Submitted,
Richard' Lares, Pro Se
CERTIFICATE OF SERVICE
I certify that I have read the pleadings and to the best of my knowledge and
belief, formed after reasonable inquiry, that the instrument is NOT Groundless,
or brpught in Bad Faith or brought for the purpose of Harrasment, unnecessary
delay, or other improper purpose. That on the date written in this Certificat
ion, Appellant lias forward a true and correct copy of this Notice to the Clerk
of the Fourth Court of Appeals District, CMena-Reeves Justice Center, 300
Dolorosa, Suite 3200, San Antonio, Texas 78205-3037 and Appointed Counsels
Barry P. Hitchings, Hitchings and Pollock, 645 South Presa, San Antonio, Texas
78210 delivered by U.S.Postal Mail April 23,2015.
Respectfully,
Richard Lares, Pro"l>e
1592255 TDCJ-ID
Pack 1 Unit
2400 Wallace Pack Rd.
Navasota, Texas 77868
"De Oppresso Liber" .
H Jr H
"?X CAUSE NO. 04-15-00183-CR
^y FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
RICHARD LARES,
Appellant
V.
THE STATE OF TEXAS,
Appellee
NOTICE
TO THE HONORABLE JUSTICES OF SAID COURT OF APPEALS:
Comes Nowj Richard Lares, Appellant herein, in style and cause and provid
es Notice thafeMir. Barry P. Hitchings, Court Appointed Appeals Attorney, is
unable to meet with or visit, is unable to receive any Alibi Material Newly
Discovered/Available Evidence in Appellant's pocession because his schedule is
Full and his Copier is Broken and in support will show the following?
I.
Appellant has a 30 deadline to turn in Appeal Brief and is unsure if Coun
sel is able to meet with him, as he has told my mom that he is unable to meet
with her because he is in court constantly, my mom, Maria Chapman has said New
ly Discovered/Available Evidence and most of it was Excluded from trial by trial
counsel. Said evidence is Dated Photos of the Dates in Question with sound Al
ibis and their Affidavits as to what they would testify about if called. Trial
Counsel never investigated, Subpoena, or Interviewed them even though counsel
was aware of ALL Material Evidence, most of said evidence was in his hands too.
II.
Appellant avers on this day June 3,2015 it being brought to the attention
of the Honorable Justices that Appointed Counsel's Copies are substandard, unr
eadable and blackened to this point where the Hon. Justices cannot apprise its
value. See Two Pages from Exhibit A Motion To Arrest Judgment, of April 7,2015.
S)L^XtT^>
Disclaisasr, Appellant only submits this Static© to Aid Counsel in providing
competent legal representation to ne, I even helped ay idds with their homework.
In Exhibit A Page 1 Top Photo is Sound Alibi, Martha rlore^eoogOelnant's raaft)
in Urn Maxic© on Pay in question '9/03/2000 as depicted by the tfefcans sign.
Private Investigator James McKay was sent to Martha- Floras* Residence 11211 Ca
ndle* Park, Sart- Antonio, Texas 78249, but was told that she was infarraad NOT to
speak to anyone by the District Attorney, who tsnappeted with the defense inves
tigation, or prevented it. In ©Mbit A Page 1 Bottom Photo in Arizona on Day
in question 9/03/2000 depicted by Folic® Car Logo of getired Arizona Officer
Steven Alien Costello Badge #8687 sound Alibi who provided Ms affidavit to
validate that ha is pictured on the. flipto dated- 9/G3/2G00 his current address
is Horseshoe Send Camp Verde Arieons 86322, Private Investigation done by my
wife, teiaa Lares-Guevara, affidavit was obtained on %2/2&/W$A her complete
liweatil^tieo is in Exhibits 117-19 enclosed.
Had trial counsel attempted' an independent investigation there would have
beaa an, option for Alibi Defense and -not the Trial Strategy of Thaw four-self
at tte tesy of the Court. -Also eee Exhibit A Pag© 2(original 11.07- Affidavit H)
from Sound Alibi Roberto Guevara m New Years Eve and Day of B@y to question
12/31/2002 of Count 'lit, which depicts Partial Roberto Guamra, Martha
Flores(alibi), Itethan Lar©s(a3Jbi), Eli»@beth Lares(alibi), the Complainant and-
'Appellant» -not in photo are Maria Chapasttj(alibi) and Jonathan Gharea^aliM) at
their Residence 5910 :Saiht$ Passage San Antonio Texas 78220$ in a two bedroom
trailer.
These Tm ^agas of Exhibit A are :coispi©tely blackened and the people end
Dates are unreadable dim to Appointed Counsel's tatei Oopia? and they do no
justice to the contents they ecsnvey. Also enclosed is an ®tt®»iV6 Medical
Manta.l/Psyh©lQgical History Within the Traversas Prwife! by Rarloa I^raSjWife
of appellant. Trial Counsel stated in his 11.07 Response Affidavit that !,I deny
that I failed to offer into ©irisfejqe applicant's taedleal records.?/' Paragraph
9, my wife numbered thera. Further "... Because the issue of Mr. Lares' compete
nce to stand trial as well as any insanity defense had been resolved..." also
"... Mr. Lares waived his right to proceed with a competency hearing..." Had
Trial Counsel hired an Expert witness to Rebutt the State's Two Examination the
399th Court would have known that both Examinations were conclusory because the
First Exam the Doctor did not have ALL V.A. and Private Medical History Records
to make any real finding. The Second Exam was alor deficient because the Docfc*
or still did not have the Entire ^ledical History before him to make any Scient
ific Conclusion and any conclusion made was/ would have been conclusory as well*
In fact Trial Counsel did not feel that it was his duty to obtain said medical
records because "applicant's wife, Karina Lares-Guevara, submitted a copy of
Applicant's entire medical history to the court without my taowledge*" Id. at
Paragraph 3S("I had the opportunity to review these records before sentencing
and concluded that they were a copy of the same records in our possession.").
Hhat Trial Counsel doesn't state is that the "copy" he has in his "possession"
is a copy»;provided by Karina Lares, appellant's wife and NOT a copy that he or
the investigator subpoena or ordered from any MedicalFacility. NO Medical Re
cords were ever obtained by Trial Counsel or Anyone from the Defense.
As for Trial Counsel*s?,testimony that "Itotiose did I perceive that Mr.Lares
was unable to assist in his own defense." Id. at Paragraph 11. But Look at
Trial Counsel's Motion For Psychological and Psychiatric Examination which
states in part "The DEFENDANT herein does not, in the opinion of counsel, have
sufficient present ability to consult with counsel to any reasonable degree of
rational understanding, and does not have a rational or factual understanding
of the proceedings against DEFENDANT." Signed and Dated June 8,2009 by Trial
Counsel Joe Gonzales. So how is it that on June 8,2009 Defendant signed the
Plea Bargain or was admonished when the issue was< NdT Resolved as counsel stated?
Please Read the Traverses ray wife made for me but no one has read them because
she always files them late and appellant is often kicked out of court for not
having a "Good Cause" for being late. Everything contained in those Traverses
was presented to Trial Counsel and the Hon. Judge Juanity Vasques-Gardner of the
399th Court during presentencing investigation interview, said Medical records
state the Diagnosis of PTSD, Bipolar, and Schizo-Affective Mental Illness and
Disorders that the Appellant suffers from and. Ms very strong Psychotropic Meds
to control it. My wife said I was a Zombie when I took my mads, I'm divorcing
her because she has. not been writing to me and no longer loves me and she stole
all of my V.A. money and closed my Bank Account, I no longer have money. But'I
still love her and miss "her, alotS
I'm not a lawyer nor a student of law. In United States v. Herrer,559 F.
3d 296,302(5th Cir. 2009)(A New Trial could be GRANTED where the court reweig-
hed evidence and found it leaned heavily against the guilty verdict). Appellant
avers that a New Trial would probably produce a different result if AIL of the
Evidence that wassover looked, Secluded, Not Investigated, and Newly Available
/Discovered Evidence Material to said case at bar was before the court. A good
demonstration of due diligence is showed in this Notice but there is MUCH more
that appellant has that has Not been evaluated by the Court Such as Affidavits
from Alibis and Family and Friends Page 61 Affidavit A-L and Lists of Inhibits
Gx-1-6 and Mx-1 - 27 and 11.07 Exhibits 1 - 109 which also include many of the
Clerk's Record Documents and Dated Fnotos with Alibis and Witnesses. Appellant
avers that his plea was that of misinformation and mis-advise to plea to an
offense not alleged in the Complainant's Affidavit/Complaint and that is the
ineffective assistance appellant received in trial counsel's representation*
PRAYER
WHEREFORE PRIMISES CONSIDERED, Appellant prays that this Notice is accepted and
incorperated into his Appeal Brief By the Court of Appeals and Appointed Counsel.
So Moved, So Prayed For.
Sincerely Submitted,
Richard Lares #1592255
CERTIFICATE OF SERVICE
I, Richard Lares, have read the pleadings aid to the best of my knowledge and
belief, formed after reasonable inquiry, that the instrument is NOT Groundless,
or Brought in Bad Faith or Brought for the purpose of harrassraent, Unnecessary
Delay, or Other Improper purpose, That on the date written in this Certificat-
ionion, the Appellant has forward a true and correct copy of this Notice to
Mr. Barry P. Hitchings, Hitchings and Pollock at 645 S. Presa, San Antonio,
Texas 78210 (Notice without exhibits) and the Bexar County The Clerk of the
Fourth Court of Appeals at Cadena-Reeves Justice Center, 300 Dolorosa, Suite ^
3200, San Antonio, Texas 78205-3037, sent by mail June 3,2015.
Respectfully,
Richard Lares TDCJ #1592255
Pack 1 Unit
2400 Wallace Pack Rd.
Navasota, Texas 77868
"De Oppresso Liber"
U.S. Army Special Forces Combat Veteran
t/" „^-•• exu^> ^
P CAUSE NO. 04-15-00183-CR
^
FOUH3H COUfiX OF APPEALS
SAN ANTONIO, TEXAS
RICHARD LARES,
it
THE STATE OF TEXAS,
TO THE H010RABLE JUSTICES OF SAID COURT OF APPEALS:
CONES NOW, Richard Lares, TDCJ #1592255, appellant herein, in style and
cause and provides Notice of Non-Waiver of any Constitutional Bight Granted
to excercise during AIL Direct Appeal Proceedings and does not waive any other
Non-Constitutional Right as well v/ithout express written consent from appellant
and in support presents the following:
X. - .'••"'". :
Appellant avers that the Pack 1 Unit Mail Boom doesn't send out any Legal
Mail until-^unu^Sy during the i*eek as per mail room employee's advise. Appell
ant avers that this document was created on June 12,2015 and placed in the Box
to be sent to the Fourth Court of Appeals' but may not be picked up until,
June 15,201S Monday, thus because of appellant's incarceration and inability
to hand deliver this Notice to the Respect of the Court of Appeal.' 3 Clerk
because Appellant is not«*'libar*$" to walk said Notice to the Court.
I*. ,
^ Appellant avers that communication lietvjeen Appointed Appellent Counsel,
Mr. Barry ?• Hitchings and Appellant has been lijaited to U.S. Postal Hail and
recently available caimunicati6ns'-betwsen Counsel and Appellant's Parents.
That said counsel has not viaitfjft or interviewed the appellant in person and
this may be a denial of right in aasm way but not waived by appellant* Said
Counsel, with respect to his hard work and dedication in appellant's appe
al, has expressed his professional opinion not to Present Appellant's Claims
of Factual/Actual Innocence, Ineffective Assistace of Trial Counsel, Involuntary
Plea, and Denial of Competency/Sanity Hearing, as wsLl a Denial of Other Funda
mental Claims. At this point I'm not sure what counsel intends to present.
III.
Appellant avers that he has Alibis for ALL the Dates he is being accused
of and Not accused of. To include Alibis for the Dates Not Alleged by the
Complainant but were fraudulently alleged by Det. Armstrong and said Dates
have Prejudiced and Harmed Appellant through All Trial and Post Trial Proceed
ings. That said Alibis have provided Affidavits and the others need to be
supoena by the Honorable Court in order to obtain their Testimonies to Resolve
p*\ ALL material issues that support actual/factual irmocense. 1 have requested
Appellant Counsel to supoena them but no answer has been given to rae yet.
'Appellant believes that if said alibis were .before this Honorable Court of App-
eels that their testimonies would bear out the Irmocence of Appellant and crea
te enough doubt that the Honorable Justices can not have confidence in the Trial
Court's Conviction and Sentence that now stands against the appellant. A List
of said alibis has been provided to Appellant's Counsel.
r "' '^k -PRAYER
VJI-lEREFO?vE PREMISES CONSIDERED, Appellant Prays that this Notice of Non-Waiver
be incorperated into his Appeal Brief for consideration because appellant feels
and believes that he haa'-ifo V#e&Wba heard.
SOMpVED SOPBAYEDFOR,. r • ,
/ Sincerely Submitted,
M^ir^s-
jfourtlj Court of Appeals?
H>an gfotomo, ®exas
MEMORANDUM OPINION
No. 04-15-00183-CR
Richard LARES,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR10110
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: November 4, 2015
AFFIRMED
Richard Lares appeals a judgment nunc pro tunc correcting the date of the offense listed in
the Original judgment. Lares's court-appointed attorney filed a brief containing a professional
evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel
concludes that the appeal has no merit. Counsel provided Lares with a copy of the brief and
informed him of his right to review the record and file his own brief. See Nichols v. State, 954
S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177
n.l (Tex. App.—San Antonio 1996, no pet.). Lares filed a pro se brief asserting ineffective
04-15-00183-CR
assistance of counsel, prosecutorial misconduct, evidentiary issues, and a constitutional challenge
to article 21.02(6) of the Texas Code of Criminal Procedure.
After reviewing the record, counsel's brief, and Lares'sjwo se brief, we conclude that the
appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005).' Thejudgmentof the trial court is affirmed. Appellate counsel's request to withdraw
is granted. Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.l. No substitute counsel will
be appointed. Should Lares wish to seek further review ofthis case by the Texas Court of Criminal
Appeals, Lares must either retain an attorney to file a petition for discretionary review or Lares
must file apro se petition for discretionary review. Any petition for discretionary review must be
filed within thirty days from the later of: (1) the date of this opinion; or (2) the date the last timely
motion for rehearing is overruled by this court. See TEX. R. App. P. 68.2. Any petition for
discretionary review must be filed in the Texas Court of Criminal Appeals. See Tex. R. App. P.
68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of
the Texas Rules of Appellate Procedure. See TEX. R. App. P. 68.4.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
'If an Anders brief is filed in an appeal and the appellant elects to file a pro se brief, the Texas Court of Criminal
Appeal has instructed that this court has two choices. Bledsoe, 178 S.W.2d at 826-27. We may "determine that the
appeal is wholly frivolous and issue an opinion explaining that [the court] has reviewed the record and finds no
reversible error." Id. "Or, [we] may determine that arguable grounds for appeal exist and remand the cause to the
trial court so that new counsel may be appointed to brief the issues." Id. at 827. "Only after the issues have been
briefed by new counsel may [this court] address the merits of the issues raised." Id. If we "were to review the case
and issue an opinion which addressed and rejected the merits raised in aprose response to an Anders brief,then [the]
[a]ppellant would be deprived of the meaningful assistance of counsel." Id.
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