Means, Larry Wayne

a ' ¢U, 525'03
h2,561-B-H-2
RlEcElva§'i§l'“L N°'
EX pARTE couRToFchMlNALAPPEALS IN THE BDURT UF
MAR 18 2015 . ERIMINA\_ ApPEALs
LARRY MEANS _ _ “ AUSTIN,TEXAB.
Abel Acosta, Cterk
JBJEETIDN TD THE TRIAL CDURT'S
FINDING DF FACTS
TU THE HUNURABLE CUURT DF ERIMINAL APPEALS:
Now comes Larry Means,applicant in the above styled cause and
respectfully moves this Bourt with an Ubjection to the Trial
Eourt's Finding of Facts pursuant to the application 11.07 of the
Texas Eode of Criminal Procedure.
Applicant has raised two grounds stating that they are
constitutional violations and due to these constitutional violat-
ions are the result of his incarceration.The Trial Court's finding
of facts and conclusion of law are unreasonable and do not estab-
lish any State or Federal law.In ground one applicant is stating
that his conviction was obtained by ineffective assistance of
counsel.In the finding of facts,State states that the open plea
was valid,but there is no transcription of the record of the
hearing.(see pg.63)while trial counsel states in the affidavit that
he submitted to the State that applicant was admonished on the
record.
Applicant's statement about the plea hearing indicates that
he did not understand the nature of waiving his rights.In con-
sidering of a guilty plea the reviewing court should examine the
record as_a whole.In this case the State is saying there was no
need to record this official duty because applicant pleading
guilty to the offense.The Eourt of_Criminal Appeals states in
Exparte Chavez,hBZ S.U.Zd 175, that article 26.13 of the Texas
Eode of Criminal Procedures requiring Courts to.admonish defend-
ants of consequences of guilty plea and accept plea of guilty only
if the defendant is sane and not influenced by fear or persuasion
must be complied with as a condition precedent to validity of plea
of guwlty and compliance must be manifest of record.
This gbjection is for the State stating that there was no
.need to record these critical stages,when the United States
Supreme Eourt has ruled that Eounsel is Ineffective when the
plea offer and plea hearing is not part of the record Missouri
v Frye,132 5.Ct.1399.This is a step that Eounsel must make to
protect his clients Eonstitutional rights. The bottom line is,
the State cannot say applicant made a valid plea without referr-
ing to the record.Eounsel was to make sure the plea hearing was
part of the record so the reviewing court could see that the plea
was freely and voluntarily made and that he understands the nature``
of the charges against him and the nature of the constitutional
rights that he wished to waive.See Mathew v. Johnson,201 F.3d 353In ground two applicant is stating that his conviction was
obtained due to a unlawful blood draw that was not warrented.In
the finding of facts,State states that this matter is a direct
appeal matter and should have been brought up on direct appeal.
This is unreasonable because the Texas Eode of Eriminal Procedures
art.11.07 lies only to review Jurisdictional Defects or denial of
fundamental or constitutional rights,and is the remedy to be used
when any person is restrained of his liberty.The Fourth Amendment
provides in relevant part that the right of the people to be
secure in their persons,house,papers,and effects,against unreas-
onable searches and seizures,shall not be violated.The blood test-
ing in this case should have been suppressed because it was taken
without the consent of applicant or with a warrant.
The State also claims that applicant does not fall under The
Eourt of Driminal Appeals holding.State v. Villarreal No.PD~UEDE
-1# which is a motion hearing delivered November 26,2014.Applicant_
was sentenced November 25,2013.However,The Eourt of Eriminal Appeals
ruling of Villarreal blood draw was unconstitutional from the United-
States Supreme Eourt holding Missouri v. McNeely,133 S.Ct.1552.
That principle applies to taking involuntary blood samples which
involve a compelled physical intrusion beneath the subjects skin
and into his veins to obtain a sample of his blood violates an
individual's most personal and deep-rooted expectations of privacy.
which was decided April'17,2013,meaning applicant does fall within
the retroactively of Villarreal see.Teague v. Lane 109 S_Bt_1ggg_ '
Eonclusion
This objection maintains that the Bourt's findings are very
unreasonable,they do not have any authorities and their facts are
contrary.
-1) The reviewing court must have the records to hold if the
applicant made a valid waiver.Une party is stating that there
was no need to make transcripts of the plea hearing.And the
other party is stating that there is minutes of the hearing.
2) The fourth amendment violation is a cognizable matter for post
conviction because applicant is incarcerated due to a constit-
utional violation.And applicant case is retroactively because of
United State Supreme Eourt Law.
Prayer
Therefore applicant prays that this objection is sustained
and he would be entitled relief in his Postconviction proceedings.
Respectfully Submitted,
App ican
March 13th 2015
Date