Zavala, John

\· r·
,:. . Into and For the. Texas Court of Criminal
Thlsdocumentcontains``~@als,And Its Justices,Supreme Court Building,
.pages that are of poor qlcHily West 14th Street I Room#l06, Austin, Texas 78701
at the tirne of imaging. ,
In Re John Za*ala(aka~JOE ZAVALA) § Inre:Cause#/Styled,C-396-010512-
App~icant-Relator-Pro ``' § 0943395-D RECEIVED IN .
· Versus,· §
COURT OF CRIMINAL APPEALS
Judg~(Jtihn/Jane Doe),for the 396th §
Judicail Dist~ict Court of Tarrant §
County of the State Of Texas;Andra- § AUG 20 2015
Jacobs,AsstjAt~orney to C~iminal - §§
District Attotny to Fott Worth T~xas, ~o t ion f oAb)~AP.'='JS````k' tricking
Sharen Wilson,Fried McMillin,Crim.D.A, § ~llegal th``~artt s Brief-under
& Litigation Specialist-Post Conviction,§ Writ of Mandamus
AndREddie D.Baker,Custodian of Record,et ~
al,for TDCJ-CID,et al .....
§
Relator's Application Fo~ An:Briginal Applicatibn FOR A W~it Of Mandamus
Pursuant to § 22.22l(b) of the Texas Government Code,& Rtile 72.1}& 2 of
The Texas Rules Of Appellate Procequre
To The Texas Court of Criminal Appeals-Justices:
Comes now before your said Appellate Court,John Zavala,under number as 01310 -
27l(aka,but real name is Joe Zavala),and seeks for judicial Notice,and to l e t -
there be understanding in this cause of action sub judice and thus,has submitt-
ed,and filed [t]his Application for a writ of mandamus against above said Resp-
ondent;,.- ( s) , and thus, d:nvoki ng the j ur isdi ct ion of this Court of Apge·al·s o; Texas,
purosuant to Texas Government Code,§ 22.22l(b),and Rule 72.1 and 2 of the Texas-'
Rule of Appell~te Procedure,as implemented with Article v~§5A of the Texas Cont-
itution,but that mandamus is sought against the presiding judge over the habeas
corpus proceeidings under number case,cause C-396-010512-0943395-D,and in Court~
for the judicial District of Tarrant County,Texas;for committing abuse of Autho~.
r
-ri ty, and arbitrary acts in her /his judi c_ial capacity, and discretion, in errorne,~
\· ... )~·.~.
nously failing to perform its/her/his ministerial duties empaneled by State la~;~-
and for suspending procedures for implementing the writ of habeas corpus,and de-
viating from the normal proceedings under article 11.07,§§ 1,2 & 3(a),& (b) of-
the Texas Code of Criminal Procedures,and application of the law and facts th-
at is cited within this Relator's writ of habeas corpus,and it's findings of -
facts and conclusions of law-attached to this Relator's Application for a writ-
of habeas corpus,ad testificandum,and thus,these submitted petitions for Relate
or's writ of habeas corpus were not heard or suppr~ssed and not determined upon-
the law and facts shown by the trial Court's record,and reintroduced by Relator
as his exhibits(42 items in all).Inwhich Relator's main issue presented is that
the trial COURT and it's judge, rendered a void judgme-nt, based on the Prosecutor-
-' (s)' false and fake indictment, and that srtipped the trial Court of any
:(. ictic.n over the subject-matter, caus·e "'of action and all Parties of inte,
Wrose yet,said Respondent has not acknowledged Relator's.actual claims
l.Coat.
before it's Court,and intentionally failed to serve the corr~ct and legal Per-~­
son(s)-Party(s) of interest:Which would have been Eddie D.Baker,-who is the -
Senior Warden and Custodian who the trial Court's habeas co~pus judge was to -
issue ser~ice of process upon.Such as the summons and complaint,and thereafter
[ ]ould have been compelled to appear and enter an appearance with the body of
this Rel~tor,and then and there show cause why Relator[Applicant]should not be-
released from false imprisonment ?-i.e.,Bounmedine V.Bush,553 U.S.723(2008)(in-
part,''whetHer Petit~oner's legal due process of law was dehied,for not affordi~
ng Petitioher the right to a fair opportunity.in State Court to discover and pr-
esent potentially exculpatory evidence that was not contained in the record-
on appeal ?~");District Attorney's Office V.Osborne,557 u.s.52(2009)(same);U.S.-
V.Moussaoui,365 F.3d 292,300-302,n.4-5(4th Cir.2004),citing Padilla V.Rumsfeld,
352 F.3d 695,709(2nd Cir.2003),cert.Gr~nted, U.S. ,124 S.Ct.l353,1358-
(2004);Rumsfeld V~Padilla,542 U.S.426,124 S.Ct.27llil59 L.Ed.2d 513(2004),8:-
Hamdi V.Rumsfeld,542 U.S.507,124 S.Ct.2633,159 L.Ed.2d 578(2004) ,8,2·72;RA'( ___ ,.
BUSH,542 p.S.466,124 S.Ct.2686,159 L.Ed.2d 548(2004),9 ... HENCE,the legal-prop-
(
er Respondent with respect to the writ of habeas corpus petition; is the Person
who has custody over the Petitioner/Applicant,and jurisdiction of the issaunce
of the writ lies with the State OF Texas Court of Criminal Appeals,and each ju-
dge there6£-given-the-power-and-Authority to grant and issue the issuance of -
writs of habeas corpus,and in Criminal matters[as herein~sub judice],the writ-
of mandamus,etc.i.e.,Article 4.04,§ 1 & § 2(TCCP);Articl~ 5,§ SA Of the Texas-
Constitution,and thus,over the Respondent-Eddie D.Baker-named in Relator's Me-
morandum of law,attached to his Application for a writ of habeas corpu§,along .,..
with his exhibation of itemized instruments material to RELATOR'S unconstituti-
onal and illegal conviction(s) for Arson and Burgarly.Insupport of this want of-
mandamus Application,Relator will further show this Said Appellate Court's Jus-
tices the following:
I.
A) Relator's plea for jurisdiction involves the validity of the judgment pronou-
nced upon his imposed duplicitious Count indictment or the Prosecutor'(s) own-
version of an unauthorization of a grand JUry panel.Whicb judgment is void ab-
initio,because the alleged defendant,John Zavala,was n~ver legally before the-
trial Court and it's presiding trial judge.In fact,the indictment is so fatally-
defective that it deprived the trial Court of subject-matter jurisdiction-Had -
defense Court appointed defense counsel(s) NOT elected too ~ommit.breach of his-
~-·· :her/their fiduciary duty and legal obligat{ons,he/she/thet would have objected-
and complai~ed about deceBtive trade Practice acts by the prosecutor(s) and that
there was no actual returned True Bills of Indictment(s).These issues are well
pleaded in Relator's memorandum of law,as well as supported with his exhibitat-
ion of 42 items.Moreover,Relator can never waive his United States Constitution-
al rights guaranteed under the Fourteenth,and Fifth,Sixth,Eigftth:;.Ninth Amendme-
nts.Thetefote,Relator has not waived any absolute rights,and has reserved the -
e s e said rights even p r i or to his coerced and i n d u c e d p 1 e a of qui 1 t Y ' and wi 11 -;;,~;;..:?
2.Coat.
reserve his right to amend this designation·so as to not have waived any err-
ors of law preserved in the trial COURT.Since his main issue of claims raised
is a. challenge to the trial Court's/judge's jurisdiction;over the[ir]2subject~
matter and Parties of interest.In the interest of just:ice,may .this Texas Court
oi Cciminal Appeals take judicial notice,pursaunt to Rule 20l(a), (b),(c), (c), (d)T
(e),
. .
(f), . (g)-of
. .
the Texas. Rules of Evidence,that the fraudulent indictment issued
under cause number C-396-010512-0943395-D,.is not a criminal complaint under the
laws ofiTexas,and the trial Court's judge never acquired exclusive,nor competent
j urs idi c\ion
over .the subject-matter ',sub_,j udi ce. "Thus, lack of
.
subject-matter j ur-
isdiction over a[ny] Case.cause of action or citation renders a trial Court's -
judgment void:Ex Parte Seidel,39 S.W~3d_221,224~25,n.4(Tex.Cr.App.200l);Hoang v.
STATE,872 s.w .. 2d 6?4 ,Supra(Tex.Cr.App.l993)."A defect which renders a sentence
void may be' ra'ised a·t· any time or s,tage,and for the fi_rst time of appeal~'Id.
'B) Relator states that the correct procedures for entertaining a ~rit of habeas
copus has not been taked in this Case at bar.Nor has the correct legal and pro-
per person been serv~d service of process.Because the trial Court's judge has-
deviated from the normal habeas corpus procudures.And in stead has arbitrarily-
allow~d~an illegal third party intervener(s) to file or and submittillegal imp-
'f,·
roper baseless motions in opposition,but as third party under an Amicus Curiae's
Response to Relator's [Applicant's] Applica~ion for a writ of habeas corpus.Thus,
Se-rvice of process····,.h·as-·'·not been execut·ed on the Custodian of record; Respondent-
7 ·: :Eddie:D~B~keri(or;a·sutcessor if'reassigned,ett);pursunat·to:Articles ll.Ol,ll.-
102ill~03.;·.J:~i--.~64,ll.05,11~07,§ 3(a) & (b).ll.ll,ll.l2/ll.l4(l·t'.to {5),*11.15,*ll.-
16(TCCP) & 11.23,11.26,11.27,11.28,11.29,11.30(1) to (5).,11.'31.11.32,& 11.36-"
The Applicant may be Brought before the trial Cour.t: •. These rule of law allows-
or-permits service on the legal person having custody of the prisoner/Applicant
or service on the legal government Official or Agency in the manner proscribed-
by these said State's laws(inaccord~with aforementioned federal-Supreme Court's
precedent)for serving a summons or the like process on the correct legal Respon-
dent(s):rd ..•. These said provisions are to be applied with the service of 'sum-
mons or like process'-under Texas Rule of Civil P~6cedure 106 or/and 2la-but -
rule 106 provides that the initial citation(summons~ may be served by deliveri-
ng a copy of the citation and petetion(complaint),in person,to RESPONDENT(s),or-
by mailing a copy of the citation and petition to the Responden~ of interest~via
certified mail,returned receipt requested.The trial Court's judge,or and a Sha-
ren Wilson,with Frieda McMillin have used illegal and unlawful motion practice
to· cause the dismissal of Your Relator's Application for a writ.of habeas corpus,
along with his memorandum of law's pleadings,and have departed from guidance of
State law ,and have erroneously failed to act with reference to any guidingcpri-
n~tples of law,failed to analyze and apply the law correctly,and by suchd0~
ion of the correct procedures,has acted in an arbitrarily and unreasonalbe marr-:
er so inconsistent with legal and substantial due process of la~ as to render~
3.Coat.
the trial Court's/judge's judgment void ... The unidentifiable habeas corpus-.·
judgment may be an intruder1if not an elected or appointed judge under the-.
provisions of the Texas Constitution1so as to express Respondent(s) ~andling­
Court is the 396th judi~ial District Court of Tarrant Co~nty1Texas-where S/he-
is ~uly acting in an judicial capacity1as a duly elected or appointed District
Judge.Whatever its capacity for the trial Court1Relator seeks mandamus relief
upon him/her or they1as a whole !for both failing to act upon the contents wri-
tten in the me~orandum of law1and hampering1otherwise hindering1Relator's fed-
eral and State of Texas Constitutional rights1including State and federal law-
requirements of :[Equi table]access of inmate' ( s) 1 to a vai 1 himself to the Courts -
for hearings under this civil action sub judice.Thus1said judge has committed
abuse of power and authority when S/he fails to'perform her/his ministerail du-
ties employeed by State law ... Relator has provided Eddie D.Baker1as Custodian-
over him1a copy of his separate1but attached memorandum of law1so Baker will -
have prepared his trial Court's duplicated copied documentation,and produce it
in the said trial Court-in showing whether Baker has any actual legal papers-
to justify Relator's imprisonment ... However1thus far1Responent(s) has not took
legal-proper procudres to deliver your Relator to said-:-:-.-"·Responent who shoulEL- ·-
1
hav~n~ Relator under illegal and unlawful restraint ~r``r~-Baker's Custody,and
- - - -· .
said trial Court's judge must view the original exhibitation1''but only if dema-
nded" ... and commanded that his[Baker] to produce and have your Applicant/Rela-
tor before said Court instanter.Article ll.27(TCCP)-& 11.31 states to WHOM the
writ of habeas corpus is to be served1and [Shall]bring befoi!Se said habeasjj.uu~g:e
Who shall examine the writ'-Application/petition and the _papers attached to it;
and then and there if no legal cause has been show~ for the false imprisonment-
and restraint 10r 'if it appears that the imprisonment or restraint1though as-
if first legal,cannot for any cause be lawfully prolonged1the Applicant/Relat-
or [Shall] be discharged.i.e.1Aricle ll.40(TCCP).And aforementioned federal pr-
ecedent insupport ... of trying to comprehend why the habeas satia judge did not -
chose to file the correct laws for procedures in habeas c6ipu~ proceedings sub-
judice,rather than allowing a paper brief as the "STATE'S RESPONSE TO APPLICANT-
's APPLICATIC)N FOR A_ WRIT OF HABEAS. CORPUS ? '"and erroneously f~iled. to com-
pel ~-11 .appearance .of Eddie B. Baker;``·ut permitting Sharen Wilson and Andrea Ja-
bobs(ADA) to. submit documents for improper1illegal and unlawful purpcises 1 and -
CaUSe l:lOneCeSSary delays 1 and needleSS increase in the. CQ'S't Of -1 it iga ti0n • See
Ryland V. Shapi-ro., 708. ·F .. 2d 96 71 97 2, n. 5 (5th Ci r. 1983) (ci•ta tion omit ted) ; Cf. Hall
V.Mackeryl720 F-.Supp.26~,262(SSNY.l989)(Prison officiais sanctioned for causing
delaya ~n proceedings);Boonie V.Elrodl706 F.Supp.6361638-39(ND.Ill 1989)(Sanc-
tions imposed against jail Captains lawyers for baseless motions);Knop V.John-
sonl667 F.Supp.5121515-22(W.·D.Mich.l989)(.sanctti6ns imposed for abusive moti-
on practice)1aff'd i~ partinent part,977 F.2d 996,104(6th Cir.l992)1certldeni-
r edlll3 s.ct.l4115(1993);Goka v.Bubbitt1862 F.2d 6461650-52(7th Cir.l988)("-
4.Coat.
Appellate Court directs consideration of sanctions imposed against prison-
Officials lawyers);Cf.U.S.V.Winestock,340 F.3d 200,207 1 n.7(4th Cir.2003),cit±
ing .Dunn V.Cockrell,302_ F._3d 491-~2,n.l(5th Cir._20(1)2) 'per .curiam) ,.c~rt.denied,
U.S. ,123 S.Ct.l208.,154 L.Ed.2d. l01_3(2003) 1 in part:_
u An example of a proper Rule 60(b)(FRCP) claim(equivalent to Art.27.08-
(4)(TCCP)) is an allegation that the government agents perpetrated a fraud-upon-
the-Courts during the collateral review proceedings~Id,at Winestock,340 .3d ``e-
207,n.7;Ryland,at 708 F.2d at 972,n.5: 11 In relevant part: Of what avail is it to-
the indivdual rights to arm him with a panoply of Constitutional rights if, 'w
when he seeks to vindicate them,the Court-room can be hermetically sealed agai-
nst him ' by a functionary,Who,by refusal or neglect,impedes the filing of his-
papers 11 ; and 11
that ~- ..~_t:ate Clerk of the Court • s ·has negligently delayed the fi l---
ing of [this] Petitioner's petition.on appeal,and that the delay ~is intefferd·
.·,_..
ing with this Relator's [Individual's] rights of access to the Courts~Id.
C)The Respondent(s) are clearly and constructively denying Relator any means of
equitably~availing himself to the common-law or and Constitutional Court,as said
Respondent~ks) erroneous failures to perform it's ministerial function,under the
facts of this case,means Repondent(s) has personally edit-ed and censored Appl-
icant's/Relator's documents and has refused to perform hisjher duties under its
sworn Oath, 'unless it's an intruder who is interfering'ior a recalcitrant Clerk-
(s) is participating in refusing to file Relat6i's properly-executed legal docu-
ments,theny_IDandamus will draw-out the culpr::it or violator of rights,and make -
Relator's legal matters a public record -r#( ::-existance. Even though Relator's sw-
orn statements herein are in good faith , and at tempting to affirm the truth- .-silt
intruder(s) and said judge are impeding the progress of any thing Relator has
want[ed] to file,process and have docketed within the trial Court's record ...
This relator±is-in a position as in Deleen V.District Clerk,l87 S.W.3d 4J3,474-_
475,n.l,2,3,4,-5(Tex.Cr.App.2006).Hence,Relator is also seeking an Order instru-
cting the District Clerk of Tarrant County to accepy his petition as is,file it,
docket it and have it processed and then presented to the said Court's justices-
for due consideration upon the relief Relator seeks.Rather than harboring the -
darker motivation of keeping the trial. judge's docket clear of R~lator's petit-
ions~Id.,citing Winters V.Presiding Judge o~ the Crim.Dist.Ct.Nu.3,ll8 S.W3d 773~
775(Tex.Cr.App.2003).AS expressed through-out [t]his m?ndamus petition,this Re-
.l.a.tor. has
~ ' -. .
shown he. has no other ade,quate remedy at law to pursue his requested-
relief other than with this Application.Even though the law established expres- ~
ses he has a clear right to the relief sought,and the merits of this Relator's
claims for relief aie beyond dispute;as a legal right that necessitates that the
law plainly describe~ the duty to be performed.Such that there is no room for -
the exercise of discretion~Id.
D) Andrea Jacqbs and Sharen Wilson are allegedly of the Criminal District Attor-
ney'(s) Office of Tarrant COUNTY,Te:l{as,and together submitted and filed sO.;d-
baseless and unlawful briefed motion inopposition,with the Tarrant County _-
S.Coat.
District Clerk's Office ,supposely on or about 7/23/2015,and joindly have
misrepr-esented facts and misstated laws in this case at bar.First this issue
of ~raudulen~ ,indictment, and void J~udgment to Relator's conviction/sentence does
not fall under. the abuse of the writ act.So Relator never had to over come the
f·al!=>ely impliea·6- subsequent bar to the writs filed or writ bar.See ...,oprecedent
cited in RELATOR"S memorandum of law.Hamilton V.McCotter,l72 F.2d 171,183-84(5-
th Cir.l985)(citation in original};Cf.State V.Johnson,821 S.W.2d 609.612,& n.2-
(Tex.Cr.App.l99l}(four criteria in original),and State V.Terrazas,962 S.W.2d 38-
supra(Tex.Cr.App.l998),''even though this Court did not .expressly decide at that
time whether the defendant/Applicant is entitled to a dismissal for said ConstS
itutional violations,it remanded the case to the trial Court/Appeals Courtffor-
it to consider (1) " Wether the defendant was in fact denied her/his right to
due process of law";and_(2) "Whether dismissal was[is !] the appropriate means
to neutralize the taint of the_Constitutional Violation of law:Id.
III.
A) RESPONDENT(s) has adopted baseless and unfounded Responses by Shareni.ilson,
Frieda McMillin,and Andrtea Jacobs,"as ·if for Eddie B~Baker,failed to Comply-
with the certification reguirem~nts for this Relator's appeal and there proced-
ures taken are with a substantial defect~tbat deprived the habeas corpus Court
and its judge or intruder of jurisdiction over this case sub judice,and jurisd-
iction can not be retroactively obtained:State V.Riewe,l3 S.W.3d 408,supra(Tex.
Cr.App.2000)(this Court did not allow the PROSECUTOR to amend its appeal):State
V.Muller,829 S.W.2d 805,supra(Tex.Cr.App~l992}(the STATE'S notice of Appeal mu-
st be filed within 15-days in order to invoke the jpt``d~sti¢~ao~•\th~dApp``iliate
. . ... _,.,- ..... · . -· .
Court).However,whether the illegal third party interveners or the habeas judge,
ARTICLES 27.08(4),or & 44.01 does not preclude this Relator from filing a peti-
tion for a writ of mandamus to correct judicial action that is clearly contrary
to well-settled law,whether that law is derived from a statute,rule, or Opinion
of a Court.e.g.,State ex rel.Healey V.McMeans,884 S.W.2d 772,supra(Tex~Cr.App.-·
1994).Relator's notice to with draw his unlawful and illegal guilty plea,as in-
coerced and induced is-an appeal for jurisdictional defects,and Article 44.39-
(TCCP) can be applied too,because the Relator in this habeas corpus case is de-
tained by a person other than an Officer,and thus,the Sheriff of Anderson County
of the Stat~ of Te~a~that must recieve the_mandate of this Appellate Court,who
commands that an immediate cause of action be to the person so held to be dis-
charged .,.-and-t2005 WL 3272364 {Tex. App. - ·
j
Amar~llo, Dec. 2 2005, no pet.) (not designated for publication).
l
On January 10, 2006, Applicant's first and second applications for writ of
habeas corpus were dismissed as premature as Applicant's direct appeal was-
pending. SeeEx parte John Zavqla, Nos. WR-63,888-01-02, .Nos. C-396-007542- .
' I
I . :
0943395-A, C-396-007453~09433~5-B (Tex. Crim. -App. Jan: ·10, 2006) (White • ~-
Card).
On August 30, 2006, Applicant's third application for writ of habeas corpus
-. was denied without written order dn trial court's findings without a hearing. See Ex
' . '
parte John Zavala, No. WR-63,888-02, No. C-396-007765-0943395-C {Tex. Crim.
App. Aug. 30, 2006) (White Card).
ll. APPLICANT'S ALLEGATIONS
Applicant alleges his confinement is illegal because (1) the trial court lacked
subject-matter jurisdiction. See Application, p. 6-7.
ID. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF
THE RECORD
There is no need for an expansion of the record. The State submits that the
record before the trial court is sufficient to resolve Applicant's grounds for relief.
Applicant ~eed NOT be brought baclc to Tarrant County for 'a hearing.
2
.:
'i
N. ARGUMENTANDAUTHORITffiS
A. Applicable Writ Law
I
.:! •. . In a habeas corpus proceeding, the burden of proof is on the applicant. . Ex
:
parte Rains, 555 S.W.2d 478; 481 (Tex. Crim. App. 1977). An applicant '~must·
prove by a preponderance of the evidence that the error contributed to his conviction··
or punishment." Ex parte William~, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In ·
I . . , . .
~rder
.
to prevail, the applicant mus~\pre~ent facts that, if true, v.vould entitle him to the
' .
relief requested. Ex parte Maldonado, 688 S.W.2d 114, 114 (Tex. Crim. App. 1985).
i '
Relief may be denied if the applidnt states only conclusions, and not specific facts.
·Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, aD.
applicant's sworn allegations alone are not sufficient to prove his Claims. Ex parte
I
:
Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
B. Applicant's application should be DISMISSED because the application
fails to allege sufficient speCific facts to overcome the subsequent writ bar.
Applicant argues he can file this subsequent application because he did not
discover the issues until he received the trial transcripts. See Application, p. 3.
Howeyer, that is not a permissible exception. The Code of Criminal Procedure
provides that:
(a) If a subsequent application for writ of habeas corpus is filed after
fmal disposition of an initial application challenging the same
convjction, a court may not consider the merits of or, grant relief based
3
ol1 the subsequent applicatiqn unless the application contains sufficient
specific facts establishing that: _ ·. . ·
- - - -I - -
(1) the current-claims and issues have not been and could not have been
; presented previously in ari original application- or in a · previously
considered application filed under this article because the factual or
legal basis for the claim was unavailable on the date the applicant filed -
the previous application; or
l
(2) by a preponderance of the evidence, but for a violation of the United
. States ,Constitution no ratidnal juror could have found the applicant
gul'ltybeyond areasonable d.Oubt. . . ···:··::········.·:::-:··>:···.-··:·---,,,,,
. .... _" ...- ---- " ------ ........ :...._
1
- _,___
.
...- . . ----~·-"'-•
-~ .
(b) For purposes of Subsebtion (a)(1), a legal basi~- of a claim is
unavailable on or before a date described by Subsection (a)(1) if the
legal basis was not recogniz,ed by and could not have been reasonably
formulated from a final decision of the United States Supreme Court, a
court of appeals of the United States, or a court of appellate jurisdiction
of this state on or before that'date. · -
(c) For purposes of Subsection (a)(1), a factual basis of a claim is
unavailable on or before a date described by Subsection (a)(1) if the
factual basis was not ascertainable through the exercise of reasonable
diligence on or before that date.
Tex. Code Crim. Proc. Ann. art. 11.07 §4.
'
The purpose of this statute is to limit a convicted person to "one bite at the
apple". Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000). This
statutory provision also bars the litigation of claims which could have been
formll;lated at the time of the original application for Writ of habeas corpus. See Ex
Fontenot, 3 S.W.3d 32,34 (Tex. Crim. App. 1999).
Becaus'e Applicant's claims are based on the trial record, the factual basis for
'
his claim was available on or before the date he filed his first application. Likewise,
4
~pplicant's claims are based on ~ell-founded legal principles which existed at the
I . ;
time he filed his first applicati~n. See Application; Memorandum. Finally,
ii . ~
! '
Applicant presents no evidence ihat he is actually· innocent. ·See· Application; · ·
i
Memorandum. In order to prevail on the exception that no rational juror would have
· found him guilty, an applicant must make a prima facie showing that he is actually-
innocent. Ex parte Brooks, 21;9 S.W.3d 396, 401 (Tex. Crim. App. 2007).
.I . .
rnerefore, ~pplicant has failed to\_present sufficient specifi~facts· to overcome the._ .... ,..._'::·.· --~-.:~-=~-
subsequent writ bar. Tex. Code Crim. Proc. Ann. art. 11.07 §4.
I
Thus, this application should be DISMISSED AS A SUBSEQUENT
. APPLICATION.
5
,i
!
V. CONCLUSION
.,
Wherefore, premises consi~ered, the State prays-that this Court recommend
. !
·I
!that Applicant's application ~be DISMISSED -AS ' A SUBSEQUENT-·
i
APPLICATION.
·Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County
Andrea Jacobs, Asst.
Criminal District Attorney
State Bar No. 24037596
401 West Belknap
Fort Worth, TX 76196-0201
Phone: 817/884-1687
Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Applicant, Mr. John Zavala,
. .
TDCJ-ID# 01310271, Mark Wayne Michael Prison Facility, 2664 FM 2054,
Tennesse~ Colony, Texas 75886 on the~ay of July, 2015.
~r-~ ``~------------
. Andrea Jacobs
CERTIFICATE OF COMPLIANCE
:I certify that the total number of words in this State's Response is 1235 words
as determined by Microsoft Office Word 2010.
Andrea Jacobs
6
_,
. ·I
·I
NO. C-396-010512-0943395-D
I
EX PARTE . I
I
I
i
§ IN THE 396thJUDICIAL
l '
i
• §
' {
§ DISTRICT COURT OF
§
JOHN.ZAVALA § TARRANTCOUNTY,TX
ORDER
The Court finds that the application of JOHN ZAVALA.-("Applicant") does
bot meet the
t
r~quirements • •
for '
con~ideration as a subsequent application for- writ of
I · ·
--
! ..·' !~
fabeas cotp~s- and recommends rat it be DIS:MISSED ~S A.SUBSEQUENT·--_ -· .·..
APPLICATION pursuant to article 11.07§4 of the Texas Code of Criminal
Procedure. The Court further orders and directs:
. I
1. The Clerk of this Court to file this Order and transmit it along with the
I I
·writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.
2. The Clerk of this Court to ·furnish a copy of· the these findings to
Applicant, Mr. John Zavala, TDGJ-ID# 01310271, Mark Wayne Michael Prison
Facility, 2664 FM 2054, Tennessee Colony, Texas 75886 and to the post-conviction
section of the Criminal District Attorney's Office.
SIGNEDANDENTEREDthis _ _ dayof _ _ _ _ _ _____;J2015.
JUDGE PRESIDING
···~,
C ~3Jb'.-.CJ/C)5i2"#L:Kjt;5n5~-d) FILED. ·
Case No. . . .· . . . TH``.41'b8o``T. CLERK
(The Clerk of the convtctmg court wtll fill thts hne m.) • EXAS
JUL 09 2015
IN THE COURT OF €RIMINAL. APPEALS OF TEiAfJQ§~·-----
fN:______ --
DEPUTY
APPLICATION FOR A WRIT OF ~EAS CORPUS '
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
Joe ·zavaiaCaka~John Zayala)
.NAME: -----'r---'-"-----
.DATE OF BIRTH: -``----=--------..;......._--------­
.PLACE OF CONFINEMENT: _;;,:.Maara...k::.....,;,:W:Ja'"'ylLinu.e'"--~M:;:.t~·c~oo.~hwaill.leliO.ola.,___~---------
.TDCJ-CID NUMBER: ~!_3_1_0'-2_71_·._ _ __ SID NUMBER:
(1) .. This/plication concerns (check all that apply):
o/" a conviction · o · · parole
/ a sentence 0 mandatory supervision
. o time ~redit __ out-of-time appeal or petition for
discretionary review .
(2) What district court .entered the judgmept of the conviction you want relieffrom?
(Include the court number and county.)
396th Distric~.Court .Tarrant Coun~y -~exas
·.t -·-~....... - -
(3) What was the case number in the trial court?
0943395D(for C-996-007542-0943395-A:C-396-007543-B)
(4) What wa~ the name of the trial judge?
Georg~ Gallaqher
1
Revised: September 1, 2011· ATC-11.07
(5) Were you represented by counsel? If yes, provide the attorney's name:
Ray Hall-· Junior
(6) What was the date that the judgment was· entered?
June 7th,2005
(7) For what offense were you convicted and what was the sentence?
alleg·edlv Arson
(8) If you were sentenced on more than one count of an indictment in the same court at
the same -time, what counts were you convicted of and what _was the Sentence in each
count?· · ·
(9) z e pie&you entered? (Check rme.)~
guilty-open plea o guilty-plea bargain
o not guilty o nolo contendere/no contest ·
· If you entered different pleas to counts in _a multi-count indictment, plea_se explain:
.71/z
(10) What kind of trial did you have?
~ .
o jury for guilt and punishment
o jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the tri did you testify?
(12) Did you appeal from the judgment of eonvietion? ~ J /
oyes _ ~/?ow``.
2
Revised: Septe_!ll~er 1, 2011 ATC-11.07
'.
' ·-·-·
If you did appeal, answer the following questions:
(A)
(B) What was the case number?
(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:
Ll//fl .
(D) What was the decision and the date of th~ deCision?Lt/A
. (13) Did you file a petition for discretion evie'!' in the Court of Criminal Appeals?
If you did file a petition for discretionary review, answer the following questions:
th~ .,;.se n~mbe~? ~· .
(14)
(A) . What was
(B) What was the decision and the date of
· · /}/
th~ decision? z=
Have you previously filed an application for a writ ofhabeas corpus under Article
11.07 oft exas Code of Criminal Procedure challenging this conviction?
o no
If you answered yes, answer the following questions: jJ
(A) What was the Court of Criminal Appeals' writ number? ~1!..­
(B) What was the decision and the date of the. decision? c,R,I}tf. )4,ti£h'-
(C) Please identify the reason that the current claims were not presented and
could not have been presented on your previous application.
once I rec~eved Mv trial transcripts.T was blessed to have a sui
JUris inmate discover such fraudulent induced mentment was used
to coerced Me into beinq I could be tried on such void indictment
I depended on counsel for his legal training to file a motion to
~uash the indictment or and challe~e the triaJ ~curt's subJect-
matter JUrisdiction over said cause of action aaainst Me.
3
Revised: September I, 2011 ATC-11.07
So Ray Hall Jr and the prosecutor intentionally failed
to disclose sue exclupatory facts o¥ Pvirlen~e.Ree Mv attached
but separate rnernorandurnof law and facts in support of this
application.
. (15) Do you currently have any petition or appeal pending in any other state or federal
court? ~
oyes ~ ·_·
If you answered yes, please provide the name of ~he court and the case number:
. -.. . (16) If you are presenting a claim .for time c``dit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony.~onviction, iicludi``te"jail felonies) ·
o yes - ~ ··
If you answered yes, answer the following questions:
. .
(B) Did you receive a decision and, 'if yes, what w~s th
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the; facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. q your grounds and briefsummary of the facts have not been
presented on the form application, the Court will not consider yourgrounds.
4
Revised: S~pt~mber I, 2011 ATC-11.07
If you have more than four grounds, use page 10 of the form, which you may copy
as many times as_ needed to give you a separate page for each ground,· with each
ground numbered in sequence. . .
You may attach a memorandum of law to the form application if you want to
present legal authorities, but the Court will not consider grounds for relief in a
memorandum of law that were not stated on the form application. If you are
challenging the validity of your conviction, please include a summary of the facts .
pertaining to your offense and trial in your memorandum. ·
I ;as an Applicant Appellant have prese~rved Mv obsolute rights. to
raise.the issues I procJ~imed within Mv separate but attached Me-
morandum of findinas of facts and Conclbsions- of law.as n6ne-wai~­
able.nor can thev be forfeited bvCoun~el~Rav ~all Jr,as fraud vit-
iates ~11 contractR/indictments/judgments a~d thus,I bring c6ntent-
ions to challeng~ the trial Court's an~ it's judge's JUrisdietion-
'I over cause#0943395-D(lnte~twined' with cases#C-396-007542-0943395-A:
I c-396::-007543-0943395-·B) ·.I state: that I -reserve the right to an1end
this-designation so a~'to not have waived ~ny errors of law preser-
ved in thetrial Court.itherefore,I incorpo~at~ by reference My sep-
arate but attached memoratidum of law(findings of facts ~nd co~clus~
ions of law,and it's Order),alonf:J withall supporting document.s,incl-
uding My supporting exhibitSiPD~t``a-~ri~e``s,an~uaQthcrities raised
within my ground oen error of law.aj if set out entirely herein,for
the pu'rpose of_ this Application for issuance of the -writ of· habeas-
corpus.ad testificandum.and on further basis of testimonv.evidence-
to be adduced~on a der.novo or/and evidentiary hearing in connect~on
and anticipation to be heard' with thia Application for a writ of ha~·
eas corpus,herebv moving this Texas Court of Criminal Appeals to set
aside ·the judgment as void ab initio, that was illegally renalere.d aga·
inst me for Arson.But that incorporated bv reference memoiandum is -
made for the purpose of this appeal of mine,submitted contemporaneou:
ly herein.
5
R~vised: September I, 2011 .ATC-1 1.07
GROUND ONE: Error of Law: There Is NO-Extant True Bills of Indictment,
Judgment Is Void for TrialCourt Lacked Sub:ject-MatterJurisdiction.
FACTS SUPPORTING GROUND ONE: 'fhe Court Appointed, State defense Counsel
Mr.Ray Hall Junior.Committed intentional constructive breach of his fid-.
ucia rv duty, andoblioations. and· thus. his representation was malpracttce
~· law,when he abandoned his duty to file any kind of ~eaningful motions
to chall~ge the trial Court's accepted void indictm•nt.Such as notice t
include arid Augmerit the record with a motion to quash indictmentpto set-
1nd1ctment as1de:d1scoverv.and d1sclosure:w1th Bray V.Maryland(taw)in-
. suport.Amono other tvpes pfmotions to compel the Prosecutor to disclose
i . . . . . . .
'all f~vor~ble evidence.Since the indictment used bv the Prosecutor is not
a Grand ]Jlll¥-·Panel' s true Bills of indictment. It is a fraudulent and forg-
e-d 1il61ctDieilt i::~sued by the Prosecutors and their Off1ce of BusJ.ness Off·
I
icials.How~ver.~all
. .
had a ·. dutv to investio~te
. ~ .
the. cause of action underi
b943395 D (intertwined with; cases#C-396-009542-0943395-A: c..,.396-0.0754J-0943-
1395-R,) .counsel d i::i not do .. his job and his perfo'rmance was an intentdonal-
ahandonment of his legal abligations to protect My civil rights un~r oui
United States Constitution.and that of the Texas Constitution as well.Sinc
the trial Court's. ijudge never actually acquired compete111t or excl usi ye, nor
original jurisdiction over said cause/cases or citations.jurisdictional ~
Provisions alsO rem6val jurisdietion over iH~ P``tli~ from said trial Cour
in fa·ct. it must- also· remove any appointed motions for_ Court appointed Coun
sel and h1s alleged filed motions. 'if any-? 1 .~or Mv deEense.Thus.Mv inducec
and aoerce~ quiltv plea was notknowingly.intelligently,and vol~ntarily gi·
ven.and therefore.void ab initio.! never actual recieved real notice of -
the nature of the charged offense sought against Me-by the Prosecutors.-
judge, and defense counsel. Hall knew. as a· trained lawver. I was unlawful! v
illegally c~rge-d.But he refused to challenge the warrantless arrest &
and thQ l~ck nf prohahle cause.These statements of Mine are to be incorpori
ted DDe ~ference tto My attched meorandum of law.Along with Mv exhibits and
anv or all pertinent documentatiol
--
I ~.
. - P'-
I ``- a.
r - r,- .
I; :Su 2.. 2 "t tLa lct, _ , am the applicant I petitioner (circle one) and being presently
inCarcerated in f..vt0 a IC (• I· Wt I C 1, c.c:e f. d~lare under penalty of perjury that, a~cording to my belief,
the facts stated in the above ~pplication are true and correct.
of``/
Signature Petitioner (circle one)
Affidavit ei``pplicant-Affiant-Pro Se
12
Revised: September 1, 2011 ATC-11.07 -
·- \ -- \ .
PETITIONER'S INFORMATION
Pctiti"ncHI printed name: Joe Zavala (aka John Zavala)
. Address: Mark WavneMicaelUni t, 2664F oM o 2054,
Tenness~e Colony,Texas:75886
T DCJ#Ol3l0271 . .
Telephone:-----------------
Fn: _________________________
:·! Signed on ---:--·="------L/......,.,..·:2~-· 20_LS.
r I
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.
Signa-4:``-.
Affia~licant-Pr6
Se capacity·
;I
13
·Revised; September I, 2011 ATC-11.07
..... \. '
· I~to The T€xas Court of Criminal Appeals,And its Justices
Sup~eme Court Building,201 West 14th Street,Room 106-
Austin Texas 78701 •••••
JJoe · Zavala Pro Se 1
Petiti6ner/Applicant, Appeellant's trial Court is from the
Versus, 396th District Court cf Tarrant
Eddie. D. Baker ( sucessor),
County to the-state of Texas,tried
Senior Warden over the~
Mark Wayne Micael Unit, und``.citatiqni0943395D;0943395D
Niles Brissette(ADA)&-·
Nicole- Nickols (ADA )et ·, al}.- •. ~
Tim Curry,Chief DA,et:~i:
AppeaJ.lees/Respondence(s)
Applidant'~.Memorandum Of Law In:Support Of Applicant's Proposed Findings
of Facts,Conclusions of Law-'And _:order,Attached,As A Sepa·rate Dodumentation·.
To Applicant '.'s Applicat.ion For A Writ -of Habeas Corpus: Plea For Jurisdiction
-'_ . . .. ,. •, . .. · : .
To The-i 'I'exas Court of Cri``n~l.~ppe~ls,_~.a_ll:d i_t_f[_Ju,st_ic_~s~Tr~al __,"CO.u'r~',sj1lc:3~:~;~1l'l_d~
Respondents~, P.lease~Take_JuCIJ.cJ.al iNOtl.ce, and- Let-t_here be UnaerstandJ.ng: · - - -· .:. -
Now c``es:,.Jbh~--z-~vala~Petitioner1App~_it~nt- herei'naf"te~·~a.'nd ·in. Prose. capacity~ in·
·the above, styled ,captl.iJn and numl:)erea Cause, Case and CJ. vl ActJ.on, .·``:rungs [ t] hJ.s-
Application for a writ of habeas corpus,ad testificandum,with [t]his attached~bu
separate submitted and filed Memorandum of findings of facts and conclusions of
Law, and their attached Order for the covEmience. of the Courts aforementioned ,pur
suant to A~ticl~ 11.07~§§ 1 2 & 3(a),(b) & 4(a)(l),(2),(c) of the Texas Code of-
Criminal PROSECE'DURE ,and Your Applicant pleads for this said Courts to take jud
··icial notice, pursuant to to Rule 201 (~) , (b) , (c) , (*d) 1 (®e) , (f) of the Texas--Rule-
of evl.dence,that exercise of judicial Authority can be held under Article II,§ 1
And Atricle· V, §SA of the Texas Constitution; as well as. Article I,§ 9, Clause' 2 of
the United Stai`` Constitution of America,"that the 396th District Trial Court -
and its presiding trial judge did not have legal proper,nor exclusive jurisdict-
ion over the subject-matter,and Partv(s) of iltterest,and thus,can not have had-
authority to render any judgment other than one of dismissal,Garcia V.Dia1,596 S
W.2d 524,528(Tex.Cr.Apo.l980):Curry V.Wilson,853 S.w.2d 40,,43 1 n.l,& 45(Tex.Cr.-
7\PP.l993):Jones V.ST"ATE,979 S.W.2d 662,656-57,n.2-59(Tex.cr.App.l998)•And Insup-
port of [t]his Memorandum brief,Appellant would Respectfully show the said Court
(s) the following reasons for Judicial relief:
I.A.
Unlawfully-And-Illegally-Confined and Restrained of Hi~ Liberty
Appellant is presently unlawfully and illegally confind and restrained of his Li-
berty by'Eddi~ D.Bker,acting in his Official 6apacity as ·senior warden,under the
Texas Department of·Criminal Justice,under Brad Livingston,exective Director,over
all Correctional Inst~tutiortal Divisions,as the Mark Wayne Michael Unit,where Your
Appellant is unlawfully held against:his will~pursuant ~o an alleged Conviction-
of Arson (allegedly) involving a habitation and burglary with intent to commit Ar-
son.But aa no indication that A Texas Penal C()de was referenced in the alleged -
indictment ,-next to the· implied charge, the· indictment or information therefrom,.:..
is legally .insufficient with the [un]specific intent to com~it Arson and or burg-
arly with the intent to comite Arson,as there is no pleading that states that Ap-
pellant also,attempted,in the same criminal[alleged] transaction,to unlawfully &~
intenentiorially and knowingly started a fire,which aets amounted to more than -
mere prepar~tion that tended but failed to effect the ·~ommission of the offense -
intended .•. However, Ray Ball Junior, a State Cout appointed counsel for Appellant,-
intentionally ·cocered and induced,Appelant's consent to plead guilty to those
defective~and ~oid riotices in the information fmpli~d ~n the indictments or inst-
ruments c~1led._indictments presented to ~he 396th District Court_of or to Tarran
County~of the state of .. Texa~.Then,as th~-indictments are presumptiously f~tall~
tjeiecti ve, tne trial court'~ Judge •.._Georr·.:and e'xclusive "jiirisaictiori ··
lver. th'e subject--matter ,ci'ause of Jaction ,·cuss ·.:md '"part'ies -of iilterestand cari' thus
determine the quilt/innocence and the sentencing of this former defend~nt,t~rned
Petitioner-Applicant on appeal,were such due consideration and determin~tion are
entrus~ed exclusively to this said Appellate .Court's justices,as members of the-
Texas Judiciary,pursuant to Article V,§ SA of the Texas Constitution:Article ! -
§ 9,Cla.use 2 of the Unite.d States Constitution of America~So as too implement ...,
Article 11.07~§§· 1.2 & 3(·a), (b) & 4(a) (1), (2),& .§·· 5:Art·~4.01(1L (3). (4).4.04&1 ~
& 2 · o£ the Texas Code of Criminal AppeaLs::·. also Ex Parte Young,418 S.W.2d Bi4~
826(Tex.Cr.App.• l967};Cf.Jones V.State,979 S.W.2d 652,656-657 .n.2-5(Tex.Cr.App.l9
98);Mendian Resourses Inc~v~colley Gin· Co.,430 .S.W.2d 372,supra(Tex.l968).B~ca­
use both transcripts and stai•men~ of facts must be time~y filed to confer the-
Jurisdiction on the Appellate Courts.it should Order its Chief Clerk torprepar~­
the[ir]Repgrt~r~Record,transcri~ts and statement of facts under cause number c
396-007543-0943395-B 7/C-396-007542-094335-A & number 0943395D(both charges are
in a single Count for alleged offenses,in the v6id indictment,as duplicitous)-
as causes for preparation of the Clerk's Records in designation specifying the~
( s) legal· ma·tters to be included as thee entire Clerk's record on appeaL once tra-
nsmitted,'a• written materials,'-made in questions and answer forms too,pursuant
to Rule 20.0l(a) & Cg),& 20.2:Rules 34.5(a)(2)-(10) & (12)~(13) & 34.5(b),of the
Texas Rules of Appellate Procedure.So that all transcri~ts,'pertinent to said``
trial Court's Causes shall be included as cetified,~erified.and authenticated
materials in ·evidence/items.Including the entir·. Grand jur~ Panel's Transcripts~
of ·the witnesses statements of facts.evidence and anv other materials submitted
to the Grand jury,'if any?'.but that the trial Court be Ordered to dis6lose all-
exclupatory evidence and or information regarding the alleged charges.Which App-
licant invokes these designation.pursuant too the Authority of Brady V.Maryland,
373 u.S.83.87.83 s.ct.ll94;1196,10 L.Ed~2d 215(1963)_:Holloway v.state.525 .s.TiJ 2d
165,supra(Tex.Cr.App.l975).and the Texas Code of Professional Responsibility DR-
7-103:Zanghetti v.state,582 s.w~2d~46l(Te~.cr.App.l979).Indigencv "is a matter~
of the Appellant's [DEFENDANT's l fin.iu1cial status· at· the time of appeal. not at -
tim~ of trial~Id:Rule 20.1(g){TRAP). .
·~) At Issue Is Applicantis Induced and Irivoluntaryplea and th~ trial Court and-
Acting trial judge had ~0-subject-matter jurisqJction ·±n· the • primary Case of -
Cases sub judice ~as the alleged indictments or and iriformation therefrom were-
not validlY. returried bv:a CONSTITUTIONAL composed Gran~ Jury Pariel and were mor
.·. l_:iJ~elx,,t}1an nO_t.,.forged.\.Qv .the )\gent ( s.). -.of. or fol;' th'e distridt. Attornev.' s Office-
He~ce,th~s• issues ~reserited on appeal involve the validity of the trial Court's
judgment to· the: Convictions and their sentences,as yqid ab initio.For want of ju
risdictio and-`` fatally defective indictmen~(s).Fot'.the fact that the instrumen
Cs) cailed indiGtment(s) are lackinq most if not all therirlessential and
``Jr`` 2.Case•
Constituent elements of the offense sought to be charged by. the Prosecuting-~
·Team.As in the case of Hamilton V.McCotter.l72 F-2d
.
171.183-84(5th
.
Cir.l985)(-
cases cited therein) ;Cf.Garcia V.DiaL596 S.W.2d 524,528(Tex.cr.App.l980) .Thus •.
·Applicant has reserved. these none wai vable er;ror of law~ nor can these error of
. laW' be forfeited .not· even with Consent. And in fact may be raised at any time -
~or." a~. any stage of any appeal.Moreover, these errors of law have, no statute of -
Limitation barriers.Nd procedure penaltys apply to this tyoe of case.Not even -
the abus~ ot ~he. Writ apply t6 this kiQd of plain errors.of law.
pre~ented here-
-~ . ' .
-iri-and which are co¢plex and iritertwined with ~any other Consiit~tional errors -
'of-law~and are just a few ~f the myriad of factor~ th• said Courts and judges-
mtist cc)nsider as 'a matter of law -``nd ``Stice in determininq if .vour Applicant -
I
wlll' b~·I .allowed to represent Qim``lf •
on......
appeal
,.
of his .issl:leS ..
stated 9bove and wi
11
··.·
reserve
·..
his right ·. to amend . [t]his
. i;
designation
··- - .
so
..
as to ;7":::not
l. :_..
.have. waivea
,.,_, ___ ~:u
said -
!-_:J...::.-~..;--1:
__ : ::- :._ . ..-··-::._.-. ·-:·."~-~ -:~:·,;- :~-~----
_··.. errors 1\or ~ a!_ly p],q.j,n __ errors of law~ pres_e_rved; i:~ }~e. ~r;ial __ c~.urt :.~· q. ~.``~t``~':~o"'-~t~, ..
.. -te.• lO~ !S.\'l.3d 137,142iN.8;;;.9·& n.l:0-12(Tex.App~-Waco 2003);·citing Marin V.State,-
---.. - .. 8·~·l s~v~ -.2d 275,;7~-8b(Tex.Cr.App.k993)(among other cases);Sickle~· v.state,l70S.·
1
w.3d·2~8,30l(~ex.Waco 200S,Order){ Gray,~.J.,dissenting opinion in oriqnal). ·
Applicant submits his,exhibit.l:-A,and 1-B,as th~ void indictments used to induce
or Applicant's Conviction(s) obtained by a coerced quilty plea-wtiich was unlawfu~
. . I I
lly ind~c~6,made involuntarily,arid wi~h oui und~rstantinq of the nature of the al
eged offense(s) ,as we.ll as not understa.nding of the consequences of the ple~Ray
Hall Jbnior was ~oer~ing A~plic~nt to corifess to.In fact,your Applicant had mere-
ly a third grad~ edu~ation back ground.Thus,def~nse counsel committed breach of -
his fiduciary duty owed to his client.and refused to conduct any type of meaning-
ful investiqation.Wrose yet,intentionally failed to see that the trial Court's le
gal notices were in~ompliance with the correct Pre-Trail hearinq settinGs that -
must comly wit~ Article 28.01,§ 1(1),(4),(8),to comport with knowledgeable law'.a.
ART.27 •• 03{1) ,& (3) ~27.05(2) :27.06:*27.08(3} & (4) :29.09(1), (3) & (3) :27.11 et
seq of the Te_xas ~ode of Criminal Procedure ,_on June 3rd-, 2005. Where and then Appl
icant was cocered into !?leading quiltv to the judse ,"as Applicant was- led t o -
believe"-he was acce~ting a 2 to 25-Years senten~e,for civil damages done to[hi~
his own house,although regisitered in his common-law Wife's name.Hall insisted ir
going in fornt of a juage,supposelv for a civil and· aomestic dispute proceedings.
THE JUDGE,:GEORGE GALLAGBER,acting· in his official capacity,was ready to commence
with hearing a·guily plea for arson and alleged burgarly,of inhibation-where App
licant lived too.so Applicant did net attempt to burlarize his own home~App~i~an
was intoxicated;and inadverden~ly cause a fire in his own:home,but as a result: o
his and his wife's disputes for that day • s incident. in 'iuestion. These are pert in
ent facts,but ``y Be-extrinsic.Since Ha11•s ccnstru~tiv~ breah of duty played a
major role ~n- n~t obtaing priot· statements f.rom the compelled wife-to testify as_
to who c~used the fire.Had the judge took care o:f·this case that day,(6/3/05),th
. ·- ' -
.. \
·ou~ come and- results would have been diffinitely different,and most mitigating i
(/( .. ;;[.'.z.~ :. 3. Case •
nature ••• But,in a bizzar turn of events,the Prosecutor,Andrea Jacobs,an assul'n
ing Assistant District Attorney(whether Criminal.or
. ' . Civil unknown) for Tim Cu-
.
rrr,the {fromer} criminal district attorn~y for Tarrant County1in the State of
Texas ... T • • • re.que~ted an unsuspected recess.This was inspite that Applicant had
be~n i~form~d th~t the j~dge would acce~t his quilty .Plea without hearing any -
kind of adversal or incriminatin~ evidence-to damages to ~is and his wife's do~
main or inhabit~ntati6n •• ~Theri,on 6/7/2005~an unexpected he~ririg was held with-
Jacobs self serving adversal introduction -.
of uncharged evidence ••• Evidence . .that
·is suppose to be on suppq_~nas.J are to be issued ten-days· before ~ny preliminary ·
or tri«;il hearirig,1as under Art.24 .• 0l(a) (1), (2) (A), (C)I(E) 1 (b) & (d) ;24.02;24.03-
(.a) et·i seq;l4.04(a) (i), {2), {4)(aJ'., {b) & (C) :24.15 et .seq:24.17:24.18{TCCP)~the,...
se aref provision~ _that ~ere riot ~ad1b~t should have been im'plemented for ~roce­
dure i;mrposes. In~hich the proce.edings for which [a J witness is being subpoenaed
within! T`` or at 1 leas.t,seven day~ after. -Uie-;dat·e··,t-he-:..subpo·ena··would:-oe maild.id;"
·-. at Ar,t t 24. o4·c a ){4 j (~) ••• Thus I App~icant was. surpr{ce'd ;t·o ~- in ·:·fr'ont :of: a'nother..:. .
indivi.'~u~l``-;````- pending charge~ of: h~r Own.Ms.Lill~ Luchmnn(who was' in-~· sepa·
rate holing .cell1but in the same trial Court's holding cell areas)1and Applica~
nt's estrange Wife(common-law)-Ms.Keri,Lovedav-~ ~Benqhthere was no notiecs 'bv ·
the trial Court's Clerk~]udge1Prosecut6rs,nor. by Ball. him~elf.to [Me]Applicant ..
t I . I
What'-s even more bizarr,Ball had asked Applica·nt1"who was that witness in· the-·
other cell?"-rather than had asked the judge or and Prosecutor(s) ,...
when Ball dis·
. ' '
covered it was .90ing ·.to be a different set of proceedinqs-thari that that was ori·
ginally planed~out.·~.which was only three days late~ fro~ the date Applicant wa~
to plead in open-Court on 6/3/2005 ••• The illei;fily obtain~d eVi(~ ·;:nee was to boost
and enhance an.inflamatory ·comments and remarks of made up ·tel{oristic threats
by Applicant,or actually as falsely stated by·Jacobs1as the Prosecutor ••• Thus~-­
without any prior notice of injecting adverse witnesses1is a legal due process-v
;. ··&:a·tt.'i~·,which requires prior notice of any type of litigation 1 as a right to pre·
pare a defense i~ needed before any sort of judgment against an individual-"that
he has[had]the opportunity to defend hi~self of any accusation or claim~that he
has an opportunity to state his claim,or if the trial Conrt's judge knows anvbo<
that does ?-prior to any-adverse evidence being proffered !-and that he has h~
a proper and. lawful judgment by a jury of his peers or by an intelligent,Volunt·
ary and khowl~dgeable waiver of obsolute,and C~nst~tutional rights-not to answe
By these Applicant's statement of factrial Truth in these unprecedented set of c:
rcumstances,it ia evidently1that Ball.and Jacobs conspired1as trial Court'& Off
icials= flawyer~l,in acting out against Applicant's due procPss riqhts,and thus
to defraud this ..Applicant, tho tri.~l Court '.s judges ,and the p·1.1blic in general.·
But to obtairi· an unlawful conviction and imposen an il.l.eg•~l sentence ( s) ~ee Be11
son v.state,224 S~W-3d 485,489-90(T•::!x.App.--Bous,to_n[lst Dist.~·l~2007) ;Oldham v.st
. ate,
..
977 ~··- ,;w.
~- . \
\
2d .'354 1361Crex • App .19981 C, e:aoS.s.~in-v.o1V:eclt\t"e,'
. . ·...
. ,,_
\ \
failures to file
.
claim::
.
.
of riqhts violat·ed.,on':a_pp·aal: intentio~al cover-l1P of trail defense lawyer's --
(/ /.: zzz_) ' . . - 4. f;a.s`` ~·
·: ', ·: ',
fraud engagements and intentional,failure by[Rriri~ld G.Couch~appointed on 6/~­
,`` /2007~case#07-05-00250-CRiin the 7th C~.App.Tex~] Appellate Court Appointed-
Counsel to expose sue~ ff~ud,and he himself d~liberately failed to investigate-
or conduct some.kind of minimal investigatiol) into this case sub judice,actual-
-lv examine the enti`` record,with ~is own extrinsic facts of evidence oi would-
be evidence upon appeals investiqation~and then, research of the law and marsha
ling of ~rgumetits o~·~his Applicant's behalf.Instead.Appellate Counsel too;abon
doned his Cli,nt's colorabie claims on app~ai riqht now before this Texas Court
of Criminal Appeal:s,and thus,Couch intentionally failed/to file a .mo·tion for a
new trial,at the v~ry le~st-if not to arrest of ~udqment or to vacate the Convi
ction <:s) f()r the trial Court Is ~-~d it Is. .judqe ,lacking subject-matter -'--j.urisdict-:
ion ov;er the Case i and Person-Ap~licant, Joe Zavala ( aka~·John Zaval). A ~ew trial-
~as.w~rranted~Id~at BeJ1SOnl2·2.4 S~W.at4B9-90;0ldhaml-977 s.w.• at 36l •.• By both inc
. ompetent and_ breachers of their :fiduciar:y.. duty- .lawyers-· or .:-:liers: at ·law• As_. the-··
::::. ::"_-_,__ :_..:.c~.-;1. _. .._.".·"" ··-:r·_,, .~--,-_. '"-: '. -.... ,,_ . ·.-_f.-·-- . . - ·.
[ ir lmalpract;ice. elected not to e_xpose ~these.. said clerical· errors of law ·in the.;;,;
.-- :_ : . ::-.· ,I· - - - -- ---- - ,_.,. -. ·. - . - . -·i"· . ·. . . . ,_ .. -:
.· [ir]._ ~har.9ing documents that omi\tted no:f· orilv the precise and specific innumer---
ated reference of the correct statute .-allegedly applied,-"that must be group-
ed for a definite termology1but no· criminal: District Attornev endorsed 'its Off-
icial capacity authori tv-of consent 1 and-. applied non~ of-its alleged witnesses
narn~s on the v~td indictment.In.fact~th~_~mission g~'fur~her1by faciallv not s~
owin·g anv alleged grand jurors nanies.WHICH ARE TO.' BE AT least nine grand juro.:..
"rs to have concurred in_ the return of ·a real TRUE BI1J. OF. INDICTMENT ••• Thus·; And-
rea~as PROSECUTORJfor judge Gallagher~failed to prove_the essential and Consti-
tuent elements of the[ir]6ffense(S) sought to be charged-of this ~ase.Inwhich -
jeopardy had attached while these=plain errors of law were visually discoverabl
had either trial or an~ Appellate Couns~ls ~ot turned a blind eve to such false
. pretense [on the hiqh seas] under inexcusable injustice. Ex Parte Kirby 1626 s .w.
2d 533~supra(Tex.Ct.App.l982),- "Jurisdiction cann6t be substantially inviked;-
it eithe~ attaches or it does riot:ie encomoasse~ the power and authority of the
. -
[tr~al] Cou~t to determine all essential questi6~s in the case:it must be invok
ed by legal-proper and completely stating an offense against the laws of the st
ate of Texas and the test is not to be applied by hindsight:a defect in the Ch-
arging instrument relating to jurisdict_ional_. requirements cannot be cured by -
subseque~t proceedings in the Court and cannot· be waived:judicial action with-
out jurisdiction is VOID~Id;Garcia V.Dial,596S.W.2d 524,528(Tex.cr.App.l980)-
.Turisdiction may be concisely stated to be the right to adjudicate coacern------
inq the subject-matter in a qiven case.Unless-the power or authority of a Court
to perform a co_ntemplated act can be·found in the Co~stitution or laws enacted-
there under,i~ .is withou jurisdiction and its acts``ithout validit Id;Cf.Davis -
V.State,2~7 S.W.2d 733~736~n.l-3(Tex.Cr.App.200!)(same).
' .'' ••·• • ,'... - I ., .•
CJGround Ori~ .Error of Law: ..
Issue-PRESENTED:.There Is NO-Extant True Bills of Indictment,Judqment Is Void
: Por Trlal Court Lacked Subject-matte Jurisdiction:
.u 3~. j/,"z_)···. .-. s.case.
·":-
', ·: '•,.
Applfcani • relies dn the facts within the alleged indictment,as argued -
above,with statutory and case authority citatipns.As well as Cons~itutional
v~olations of this ``plicant's Rights.Since the Prosecutor{s) used decepti~e ~
trade Practice acts to illegally and unlawfully obtain an unnecessary convict-
. ' . ' .
i_on.Such as Miles Brissette.Niclt'Pls.and Brian BOUFFARD's abuse of the Grand Ju-
ry Panel's independent . powersJ' in the Texas Judiciary system; and;: then used said
Andrea Jacobs(wi th TIM· CURRY'S Title a~. a party) to deny all: that is raised in ar
aband6ned,appeal,by Hall and Couch( Ronald Gordon Hall},to wit:
"Applicant
.
'st.
--
;te .. his confinement is illegal ( & unlawful)
.' . because the convi-
ction imposed was obtained by use of coerced confession"-and the void ind-
ictment or its_fatally defectiv~ information the``in,speaks for itself.And the
secouttd point was )IAL: · was ineftkc.tive. That is a one-hundered percent ·.truth ! -
becau.ke Hall's ref;usal to condub!t .any :type-meaningful invest.iqation into the· -
A~plifant' s cas~, oir ·``aims a``i~s~ · him._for _u~f-o~nded:~-h~r~e_s_,``n·~ ::no --~r````le ~:~'~
.. ..• : us~;.:..found ·by a grand ·Jury.As Appl1cant. asserted ·abov~·,·tnere :are- extJ:"1ns1c·,facff·
tha-t., ·~ould · hav~· -~i tigated his Pfriishment ;--if the jud``- would -have conaidered:·:all
that kas left out.At least .to have had implemented a grand jury,as a matter of
Law,pursuant to Art.l9.01 t6 19.10:'19.11,19.13~19.14~19.18,19.19 thur l9~26{a)­
(b),l9.29,19.33.*19~34,19.35,19.39; for verifying procedtires under *19.40.19.4:
. .
{a) -~- (b) :20.01':20.07:20.09:*20 .• 17(a), (b)_,( c) (1) to (6)-all these provisions -.
are of the Texas Code of Criminal Procedure,and Art.20.17 is for how the Susp-
·ect or Accused "is questioned before ·a· real live grand jury panel.They,as one'~
Community's peers,will determine if such probable Cuase exist to warrant a cri·
minal or Civii trial,and it is then,~heir decisions on what kind of punishment
or dama.9es need resolutions.But,theS"e statutory laws are in placed to conform-
to the Sixth Amendm~nt to the United States Constitution ~f America ••• And this
fact is sustained under .the Supremacy Clause of Article VI, Which states:
"That State judges are bound bsy the Uhoit@d S~ates ConstitutiQn notwithst·
and1ng contrary state law ••• 1nce t 1s ,,as ueen read to center upon-
State Court judges the power of judicial review even over federal laws~.
See Martin V.,Huntre's Lessee;l4 U.S.304L.Ed.97(1816),9( in part: It is the-
Case 1 and not the Court,that gives the juirsdiction~Id ••• This contention was re·
jected by Mr.Justice Story 1 as he s,poke for the Court ••• Since the Stat~ Court-
has decided . the Consti tutioneil ques"t.ion originally. Ibid. e.g·. 1 Lott V .State,l8 ...
Te~.Civ.App.627(188S):Rainey V.Stat~,l9 Tex.Civ.App.479(1885)icitedin King V.-
Statel473 S.W.2d 43146,*48(Tex.Cr.App.l97l),citinq Hollingsworth v~state,87~e~
Cr.399122l S.W.978-79{1920)1cited in Hamilton,supra,l72 F.2d at 183-84:King Y.·
State,cited in. Ex Parte McCain16? S.W.3d 2041210--2ll,fn.2(Tex.Cr.App.2002),-
"as in this case at bar.'if the defendant has not ef£ectively waived his absol-
ute rights to a va,lid indictment in ful1 accordance with the [above]Statutory
law/felony i~io~mation,then
. ..
such quilty plea: is v~id~Id~
.
•• Applicant's exhibit
1-A,and 1`` 1 are the Prosecuting TEAM's instrument called indictment,which it -
visu~l'iy-,legally insufficient and void ••• T-h~ fact that Artcles 19.01 thr 21. 0~
..- I ' ... ··-, \
are-p~ovisions designed for the s~curity of .the personal tights of the-·
6. Cp.se. ·
individual arid were aptly placed under the proper heading.Id.at King.supra,473-
s.W.2d at 51~52 & fn.**25;Cf.Lacky V.State,574 S.W.2d 97,100,fn.**8(Tex.Cr.App.
1~78),in PART,AS IT IS RELEVANT,in pertinent part,"PRECEDENT" ••. "Has held that
in ~he abence of a showing that the d~fendant upon entering a plea of quilty ~
P.ER~ONALLY agreed to punishment.recommended by, the Prosecutor and agreed by the
defendant's Attorney,th~ defendant could not be deni~d an appeal~pursuant to -
Art.44.02(V.T.c.c ...;P.-Supra,provides that a defendant who ha·s pleaded quilty may
only ·appeal with permission of the trial Court if the punishment assessed by -
the Court does not exceed the ~uniehment assessed by the Prosecutor and :agreed
to by the defendant and his_attorney~Id ... Th~re are facts that should reflect-
from th~ trial Court's record f`` this ~ase a~ bar,"that applicant di~ not sig
any o~fered -· do.cumenta-tion -o~( th:~- Pr~secutor' s, because he did not -~nd~rstand -
:; . . I~ . .. . .
, the n~ttire 6~ the Chaiqes,and th~·actu~l cause ~f action.Inwhich the Pr6secutor
''-':",~;,had co~fered .: a_. 25-vears -sentence ./ko contrary :~too·tR.."G~-Coiicli·;..:.A~ppl~i'caii't-"'"coti'ld ~not·?;:;;-~
___ .: -~ nave.~ ~nders~_oold the· nature of Jhe Char3es: br.ough.t>-irt erie' vofd: ind tct~ent: aiid, -_
.---the' orl,l y thing· Applicant· ack~owJl'edge-d was· he would be pleading to ·a possible
25-years sentence,because Ball ~hreatened Applicant with a trial on the merits
and Applicant would be facing 'life or 99--year '· .. The fact that all 'couch did...;
was talk to Ball'ab6ut whatever Applicant might of said,that was it ! hearsay-
was Couch's ~nl~ investigation. ·Coucb.i acknowled~es that in his false represe-
n~at{on in his Preferred brief that is LABLED: "APPEALANT'S OPENING BRIEF"-CAU-
~e No.07-05-002SO-CR-Appealing ca~se ~umber 09433950-0ne cause for two ~onvict­
ions ! . . . Wrose yet,Couch falsely implies that Applicant's Opening brief is wh6-
lly FrivQlous •• Inspite that all that Applicant has truthfully presented herein-
this case sub judice. Applicant further points to his induced plea bargin void
instruments.One thur ~ix~do not contain Applicant's affixed mark/initials,nor-
his signature-The only indicator is an-X in the box in page 2(of 11)-right next
to "FIRST DEGREg FI!:LONY";and on page 6(of ll),the judqe,George Gallagher's sig-
nature is th·~ only agreed to tht~ last words !EXHIBITS 1-C to 1-L incorporated) :
These admonishments w~re given to this ·Accused_, on the. aboven,...noted date
And another bizarr inco~n~er,ie -on thia same page 6,a ecribeled name that w~s a
person named .Joe Zavalas,but below wher~ the judge had already closea off his-
Authority for those stipulations from page_ L to 6; and then We see page Ten c:md-
That p~ge ia an expositiOn fOr PROBATION-~PPLICATION ••• There is no CAPTION for a
A-waiv~r of a jurv trial,but its mentioned ~ursuant to Art.l:l3(CCP -no Texas iE
cited for such initials~'mavbe one must assume ?),but even that assumed code is
imprecised ~nd ,unspecific as .Art.l.l3 has three •ubsections for an a~tual term.
i.e.,(a);(b) & '(c)--This injustice was held unde~ th~ three trail Court's Off-
icers.-"RaV iia,ll Jr.ttiles Brissette.and Georqe ~_all~9-her-but no defendant is -
endoresin!J ~stich waiver of trial. See r j e 10 ! : an·d in pa9e 9- the Judicial Conf-
essiori {i iridicatinq about guiltv of each ~tid ev~rv act as alleged the~ein-buf
not 'st.a'ting that the confessor is quiltv-'of each and everv essential and
?.Case.
Constituent elements of the offense or offenses sought to be char9ed bv the
Prosecutors: .• The fact that the j~d~• relied on the Defense lawver's hearsay
. for his Client, is a ~ross abuse· of pover and Usurpation of authority. Becuase
it· was_ the lawver,Hall,who evaluated defendant as a doctor,and assured the jud-
_ge that his client was competent
1
or legally competent to have freelyj irie.l..l.~e-,
ntlv[a 3rd grade level IQ,1,kriowinqlv and voluntary[while 9 months of false ar-
rest]waived his tig~t~ •.. However not one page of Eleven st~te ~hat are the leg-
al clai`` inr~ference what a Texas penal Cod~ violation,if any actually exist -
:ed ? .See paqe 9 qf ll,und.er the words:JUDICIAL CONFESSION ..• It serves no purp-
ose whatsbever to have a la~ver .to stand bv as a staw-Man himself ! ! ! -"All wh-
ile his c1i~nt is in a sea of la·,j,s-overcriminalizing upon the incredib-ly broad-
yet Jbssure crime~ fabricated`` Brissette,Nickols and Bouffard •• ~such as the.
·charg~ that does. ~ot e~ist und``.fan~ chapter:-"~ur:lar_~ wi~h i~ten~ to com~it~
::::~: :.::. Arsonl.(althouqh 30.02``s not c~ted ~n-the~>;e, the- Prosecuti~J
Team is clia:rging l.``trumerit, in the d.upl ic.ici ty,
does not state,nor allege all ttle essential and Constituent elements of the[ir]
implied offens(s) sought to be the· charged claim of claims,and thus,the·~oid in
dictment presented to the trial Court and its actin~ judge was not by a real gr
an~_ ~ury pa:nel``nd could not h~ve charge~Applicant[~erson]with the.commissio"~
of an offense(s),e.g.,State V.Martinez,829 S.W.2d 365,366(Tex.App.-Corpus Chri~
·sti 1992,aff'd 879 _s.W.2d 54(Tex.cr~App.l994) ;McElroy v.state,720 S.W.2d 490,-
492(Tex.cr.App.1986)(same) ;Fisher V.State;887 S.W.2d. 49,56(Tex Ct·.App.l994) ;Co-
ok V.State,902 S.W.2d 471,477,& n.B,& ante III.infra(Tex.Cr.App.l995);King,sup-
ra,at 473 s.W.2d at 51-52,& fn.26;" holds that Art.l.l4l(TCCP)[as well as 26·13
(a) (1) to- (4), (b) to '(i); 1.14(a) & (b) :1.13(a) to (c) ;1.15 et seq] ,supra-' imp!
ies that this said Authbrity confers the trial Court to have jurisdiction to
hear the Cause,'if' there is a valid waiver of a real[Grand jury's] True Bills
of Indictment~ .. Then it would merely mean that a valid"complaint's information
would act in lieu of or as a:.substitute for an indictment and it 1 s validity is
essential to the Court's jurisdictjon~Id.at 473 S.W.2d at Sl-52 & n.S,& fn.26-:
Lackey V.State,574 s.W.2d 97,99-100,& '**n.5 (Tex.Cr.App.l978).In this case at
bar,the Applicant could not possibly have waived to be indicted by a Grand jury
of his p``rs,because the said Prosecutors scipposely already had an indictment,-
and the r.ecord for this case sub judice should reflect that there is abesence -
of shbwing that defendant entered a plea of quilty personally agreed to the pur
ishment recommended by the prosecutor and agreed by the defendant's Attorney(-
, '
consent).There .is however a waiver of a jury trial between the prosecutor and-
the alleded :deferise counsel ,cited in page 10 of the void plea: bargin.But not -
't ·., . !. -~
any consenti'al agreement by the defendant[Applicant].Ba11 fa1sified v~gu..,_e,and-_
ambiguou~ language within that lengthy t~n~page-pretyped-prepared wr~tten plei
Admor:t,i,shment .• That actually does not stat.~, ~hat. is waived as a right ? •• :It was_
an ab.u.se of judicial power to assume it had: subject-matter, and then accepted -
"(0?/;z;i.)· a.case. •" .·
~pplicantis (induced] plea of quilty,without making sure Applicant affirmative!~
waived a trial,while already [fraudulemtly]indicted,but that it be made-to-look.
as_ if.waiving indictment to indue~ such void contractual agreement by Prosecut-
ors and defense Counsel,as well as the judge,applying his own incorrect legal -
au-th9ri ty ·or misapplying the iaw inchief, as herein this case at bar, 11 inwhich no·
Court officer required that defendant or his Wife{estrange) establish(·the Truth
,• . . .
of the allegati6ns ag~inst Applicant,o~ as his Wife,~etting'party,as a conditior
for Applicant's .consent ... Sinc~ tri~ls are primary about the Truth,and judges-
endorsed·«onsentdecrees[none-in-this case is revealed] ~re primarily ~bout prag-
matism~
:
•. ``Rethinking Presumed Kn~wledge
; ;
oi :
the law~Neith~r~
.
of th~ three bench-
trial Offieers acknowledged :the Char•Jed indictment or information· were :invalid-
- . . even though~_'no criminal st~-tute(~) was cited in pleadings writt~-n by the prosect
.... tor -anp jUd~e I for SUf.:h harsh. bac~eQ Criminal P``riali ty Of Which presum~bly. inClU·
~to;~:-". d ed .;t t ti ~ -two i-· 4 S -"·years -.. ,_ -una e r- t h e,(pt e stim e'd ·:-it'r'c ane· pe'rial' "'Coae·s it~o1``lt'fYP ife·<:in··c eva'S' ·2rre,· .
•1. . ' . .
~; .• ...::- er .. adv,~ce:a· by--toe judge _ , n.or by ~ri t ten· instruments of~ wai v·ing :-:~is :ob~olute :~rig--::··
'hts tdj: a . Valid C-Omplaint I a:ri admi~::libn that this. [ falsely]aCCUf:leQ has· been -~verb-
. li . -1 . . ... -- ..
ally e~plained about his rights to an ac~aual informed advisement of his legal -
. .
duty(s) and ~oral obligations ,as for ~he nature of the charge(a person's culpa-
. .
bility ),~nd tha~ the instrument{pl~a bargin s~ipluti?ns)SHOULD INCLUbE it was-
filed amoung the papers of the c~use(which·cause#is not cited within the-plea-·
agreement between M.Brissette,et al~and H~ll~s goal •.. Hall's constructive breacl
' . , . . '
was the fatal'blow t~ Applicant's legal innocence,~nd factual innocence to the-
void cha~ge~,as Hall kne~ the presumption of law is useful 11 If one is trained -
the law,but intentionally failedlto provide legal advice to his client,this App·
licant,so that that useful legal advse incentive would not benefit Applicant,a:
a Citizen to become info~m -d of his rightful legal duties,and thus, a complet«
el i.mination of that-pre:;umption of the law-is· so· that goal of Hall:'s and ADAs -
would become the[ir] pecverse incentive to have Applicant remain in an ignoranc•
that w_ould not imrnun,ize Applicant from mens_ rea link in Culpability establishm-
ent( ignorantia legis neminem excusat ).,,Hence,Applicant was,and is still not·
schooled-and-trained in the law,as a presumed lawyer would be-to know every cri·
minal law,as morality of lav •. ~That requires laws to be among other things pub!·
ished , understandable and not subject no~ const~nt charges ... Otherwise Applica:n
(as. every one should)ccould have been talented as a lawyer,but that result hard
ly would have been feasible and desirable by the Prosecutors.Jones V.Barnes,463
u~s.753,756,103 s.ct.3308,3316-17(1983),id.at 463.,su.s.756,& 3314;citing Farett
v.cal~foinia,422 u.s.B06,834,848,95 s.ct.2525,2540,2547,45 L.Ea.2d 562(1983)``
11 INDICATIVE that the Attorney's usurpation of _certian fundamental decisions can
•Jiolat;e the Constitution 11 Id .•• Thus,whether -~ civil complaint was warranted or
overcriminal ization - has deepen that. danger of .a dynamic in 1.1hich Appl ica~t '.Ja
charq~d \dth alleged crimes of a lo.t. more_ punishment, while thos'~ who wer:.~, doin
: the charging knew they had little skin in the outcome which to .loss. Il::)id.
C;}j;.:J.Z) 9.Case.
D) The· trial J. udg· e found it unnecessa_ry t_o rule on the v"'ll' ... d .1· t y o f th e ..~.n·d :1:-
T ·
ctment or its information or whatever information for examining it's own juris
_diction on it's own necessity.~osely V.Cozby~813 F.2d_659,660{5th~Cir.l987); -
st·ate '! . .Moff,l54 S. W. 3d 599,601, ri .1-2 {Tex .. Cr. App. 2004). !.'.An True Bills of Ind-
ictment or valid co~r.plaint in: -o criminal cas~.! is . the main means by. which the -
Accused defenda~t starids-trial and the only means by which a COURT ob~ains sub
ject-.mat ter jurisd ict·ion, and i.s the j ur isdict ional instrument upon which the -·
Accus.ed ·can be forced to a trial on th1~ merits.State V.Chatman,671 F.2d 531 ,53€
{KAN. 1983); Coleman V.State~ 918 s:. W. 2d 381 39,43 (Tex. Cri. App .1996) ~Therefore, the
ques~ion is not~bout
~ . ..
evi~ence ~ut about ~ubject-matter
. .
jurisdiction!.'Id···
The ``mplaint an~ illeg~l apd ~rilawful ple~ bargin imposed upon Applicant were
.. -~- . . .;~. .. ··· .....· .··· -: ... ;.1. . . . . _.. .
the f,oundat:ion ~of an. ~rbi tra:ri 1tor or •. an intruder and. :i. ts acts that fell clear
ly. ,,C>U!tsidE' th•e j;itidge IS SJlbjeCt·-~·c.tter ·. jUr tsdicti ~11 ~-'!'hUS t Si;lCe theSe . :Ja ici Charg·
·-o. =-in.g. i!nsrumen.ts_ are .. inval :~d ,_ ti·'i·er)~ i..~ a la_ck::o:f._ subj·ect-m.:tt t-ar jul~isd iction •Once:
I . ~ - . . • . .
·::;,"o'.:·;..~ ~h~.-- [jya],~_q·] .__in9ictment is prese~nted-jurisdictipri is<~ex<.:lusi-ve "in•-the ·recieving··.
:_ ..-: ·:- Co~rtJ:unless legally tr.ansferr~q to· anoth,;:r Court having concur~ent j~risdict:-·- ·
___ ...._f~)n.Tei.tocle Crim.Broc~--A:nn.Art-~32.01 ·& or Art.4.16., ."Tne only me~hanism for -
transferring jurisdictlon[Ait.4.0i{l) to (11):4.0214.05,4.07] o``r the case.In
where the sec6und ~ccepts the c~se b~ issuing a foimal Order of receiving~§ 24
I I 1 I
003 {Tex. Gov' t Cod'~). Hence-~ the 396th._District Court, Judge, George Gallagher pur,~;:-
orted to receive jurisdiction from an unkonwn selected forum or tribunal,as-
a Texas Tarrant District Couri,and ~ether there exist an Order ·of t~ansfer,it
is not ~eflecting in the trial Coutt's record~so a~ if to determine jurisdict~
itln of that unknown selected f6rum's authority,if ever veste~ ?-on some parti-
cular date of entry,anJ when was an order of transfer signed ? by any acting -
competent judge for or to the 396th District Couert ••• Regardless,Judge Gallag-
her an~ his Court never acquired jurisdi~tion over cause#0943395D[or as #C-39€
007543-0943395;c~396-007542-0943395-both citation entered as one case under -
one judgment
.· .-
under#0943395D) from whatever transfer Court or from M.Brissette'
hands ?-these said Courts/judges must prove on the record,all jurisdiction``
fa~ts related to the jurisdiction asserted~ .• Applicant is assisted by a sui Jl
ris inmate paralegal,and makes an emphasis that once,as herein,jurisdiction if
challengr:!d, jurisdiction 1 cannot be assumed 1 it must be proven to exist· In fact'·
juiisdi``ion,once challenged.cannot be ~ssume~Jit must be decided.Mainly,the .~
rule of law re:;tuires proof of jurisdiction to appear on the recor·d of the adm·
instrative acencv and all administcative proce~dinqs.There is no disrection t•
·
1gn·ore
k "f. · · d' t'ofl Joyce v.u.s.,474.2d 215;Lantana v.Bopper,l05 F.2n·
1:ac o . .JUr~s 1c 1 : ~ ·.
l~H~;Chicago v.Nev York,37 F.Supp.l50:Stuck V.Medical Examiners,94 Ca.2d 751,;,_
. ..
~ ) ·. . ·. . ., ..
211 P2~ ja9~M~ine V.Thiboutot~lOO S.Ct.250;9rrier``Scholalal30 f.3d 1307TG8(1
th Cir~l994)-:Rev York Life Ins.V.Brovn,84 F.3d 1371142-43(5th Cir.l996)(same)
Rui~ v.Quarterman, 504 F.3d 5231527 ( 5:th. cir. 2007) (same). "Wh"~re ther·e is a Rule
providing for relief f:::-om a void Judgmt:!J·it: and. is applicable, relief· is not a
lO.Case.
discrectionary matter,but is mandatory~Id.(citing Rule 60(b)(4)(FRCP)-Rule _
allowing
.. a.district
. Court to relief a .Party of 1"nter~st
- •••·. fr·om af'1na 1 JU
· d gmen
-b~cause the judgment is void,and that is why no ~ppellate Court ot trial Court
m~st not h~itate to vacate a void judg~ent against [Applicant] him ,oth~rwise
·it would be a plain ~rror:of law to' refuse to v~cate and set-a~ide the judgmen
under rule~ Article 27.08(4)(TCCP).Dennis v.state,647 s.W.2d 2j5,supra(Tex.cr.
App.l983),"ln Oder-to·invoke jurisdiction of the trial.Court it is madatory th·
at the instru~·:nt st.':tte the necessary ess,~n t ial and Const i tuerit- ~ elem•ent.s ~f the
offense -sought .to b·= Gharged~Id. ~.In makin•3 a· determ.i.·nation '•'hethe'r the charg:-
iri~ instrum~nt states [ as oppoi~d to ~lleged ~ .. .
!] an offense,it must be r~ad as
' . .
a wholt~ an.qtherwise an__. . indictme/lt or infor;:nation_ that does"..r1ot allege/stat~-.
all .ot; tJte ~lement's o-f a f·~lony (bharg-:d does not 'invoke_ jurisdict.ton of. a dist-
rict~
..
Court. Ex. Parte Eldridge,-57 21J s. w. 2d 7161 supr 3. (Tex. Cr. App .1978) '. Th~s a C~urt
! . .• . . . . kl . .
I
,. may.::'~h~vf.t' aut:hority ·under ·Art .1.1l41, et, .al: to •..hea-r; ;a,o-::cas.e•, bu,.t:;.:onl\t·'ci:f: ~e.h:€it;:e--;:be'~l~ t:~
'! -· .· . ·-i:=. . . . . .
vali'd .;\1ai ver ,·and· · pr·~cedent hels ~t:-troughly_~exptessed ·:tha t;.:~'~LT-:-.is ;:weTL to.~beai.: in :
. m.i. rid .. ~hat a· fel.ony inf~rma ti-on ``ts · ir1· 1 ieu of or' a.s a subs t'itute for-~an i~dict
ment ~ns ~Its validity 'is ther~£ore essential to the Court's jurisdictiort~If­
as in this case sub judide,the Acc~sed-Appli~ant has not effec~ively wai~ed his
right to an indictment in full accordance with t.he r.Jta t ut.:e [P.rt .19. 01 to 19.10;.,.
I I I . ,I
* 19 • 4 0 ; 2 0 . 19 ; 2 0 . 2 0 ; 2 0 . 21 ; 2 0 • 2 2 ; 21. 01 ; 21. 0 2-.( 1 ) to ( 9 ) ; 2 1.. 0 3 ; 21 • 0 4 { TCCP) ] the f e 1--
ony i~formation i~ void.King,supra,47B~S.W.2d at ~1-52,& n.**26;Lackey,supra,-.
S74 s.w.,2d···at 99-·100~& n.**n .. 4;Ex Parte McCain,67 S.W\!3d 204,2l0-210ifn.2(Tex.
Cr.2002)(s~me )~id.at?214
& fn.7,15j "~he .trail Court[Judge acting]~erformed an
Action clearly out-side of any legal o~ judicial authority,which acts are bey-
ond tht.~ Scope of Law and 'that • ULTRA VIRES AC~ canno~ be recognize(~ as a ·valid
judicial act .• The Law will not Validate its existance or performance .•• It is-
in Hoary Terms a void act~'Ia .•.• "In order t·::> have char·:~ed-the commission of an-
offense-the indictment not only had to be by a G~and jury,but have'·Stated eno-
ugh so tha~ the offense alleged-could ~ave been ~egally identified ..• Thia wo~l
~ave vested the t~ial Court with subject-matter jurisdiction.However,not only-
did the charging instcument lacked most,if not all the essential and Constit~
uent elements of the offense(s} implied,but Articles 1.14(b) & 27.08 do not -
permit waiver of subject-matter jurisdiction~e,g.,Cook V.State,902 S.W.2do~at -
.·483 L1 fra. & 480,ante v.infra: Opion b'y Mansfied,J;; I join the maj()rity;I atn tr:
oubled,h~wver~by the failur.:gf trial[defense]counsel to object to the erior l1
the tharging iristrumertt prior to tria1,given that the error was obvious •• ;Had·
[Bali~objected] this been done,a substantial-amount .of time and resour~es(both
State. and Ap~:H·)llant • s) w.:.uld have been sav~d·_·: and justice would have been bette
ser-~ed!.'Id ••. Thus,Applicant has shown egr·~giour:: harm by Trial Counsel, Hall's bt;
eac.tt o f . his fiduciary d~ty and ob~igations[leg~l],and
··
. . . is enti~led to have
. . the-
triaLCourt and it's acting Judg_e 1 to·. reverse and vacate it's convictioh(s) anc
senteQce(s)because the plea bargi~ consenf[~mplied]was fraudulently i~duced -
·~ ~J:z') 1l.~ase.-
and the ~rial Court,with it's acting trial judge,l~cked subject-matter jurisd-
iction to have accepted such void indictment or inf6rmation therefrom;as well
as. the judge u~ed unconstitutional guidelines,that depriv~d Applicant· of his-
Cons.ti tutional guaranteed rights to .a jury trial .. Therefore, Applicant has shown
· hQw _his United S'tatii:H3 Constitutional ·rights were Violated with· the aid of Court
appointed coutisel,M``Ball,as Ball stold by while Applicant was being illegally
and ~nlawfully sentence to tw? lengthy termed sentences of 45-years, in one. sig-
ned judgment based upon information that had not been prov~n beyound a reasona-
ble doubth that ',.;~;ry essential ~nd Constituent elemerit~ of· l.:.he offense(s) ·soug·
'llh to be cha,rged were proven.As ·~n State V.Booker.,l25 s.ct. 738,supra(~005). ·
-However, t~e trial~ ...l=!ourt' s judge ~Jroneously. failed too_.~c·areful.ly· advise: this App
li~ant :;of .'the nature of the real/?harge~ alleged against. him and of his -obsolute-
· .. •. ri-ghts~ including his ri-gh't of a ~eal Grand jury Panei 's·--t·ru~:- Bill's of ~indictment
:.'~Since ~- !.
Valid·' ~ai'ver~:is- ~: condi t~On.
..-;
to .the tria'l i.d~tf:t'tF§rri~g'h t:i
- . .
t'o'·f'acq·tii'~e t_:{urfs•...::
· ..
·.·,,,diction,
l .
it . is·- a ':;ma.t.ter . that · cannO:t be:·"waived.· ~-~·whi'le·-
1" , • •
tri6s't: rigtlfs a'na;·:_pioted.ural' ·;
• , r .
. . matte~s may be waived,jurisdi~t~oriai I'riatt~rs m~y not b``--The absenc~-~f a val;-
id wai'v·er of triali•by indictmentlby the ···Applicant as required by aforementionec
. ' .
provisions,mandates reversal of this cause number C-396-007543-0943395-[A & B] .
, or and number 09,433950-for the Wrli tt~n Plea Admonishm~nts [alleged], and the, tria
Court's judgment under nu~ber OS43395D``as· it was not,on the facts,and law,bef-"
ore the trial Court's jurisdiction and could not have been a free-will'ing,volun
~ari plea bargin,and ~hus,~nce grant~n~ ieview upon the said void indictm~n~(s)
or information therefrom,. the said Court ( s) and their judges would be able to ad
dress and correct such plain ~rrors of law committed by the trial Court,and jud
ge George Gallagher,and to settal Texas juisprudence concerning this said plea-
bargin case at bar.Hence,Applicant respectfully PRAYS that this Texas Court of-
Criminal Appeals grant to issue his Writ of habeas corpus,and upon its de novo-
review of the trial Court's judgment to the conviction and sentence(s),reverse
the trial Court's/judge's judgmentand remand to the trial Court with instruct-
ions to acquit,or inthe alternative,reverse and remand this cause for resenten-
ing or modify the. trial Court's judgment and affirm it as modified for time ser
ved or a 2-to-10-years sentence on punishment,as in the interest of justice.Art
43.2(b)(TRCP).State V.Gonzales,855 S.W.2d 692,~u~ 1 a(Tex.Cr.App.l993);Ex Parte-
Young,418.S.W.2d 824,826(Tex.Cr.App.l967).
III. A.
Ground Two Error of Law:
Ray Ball Junior,AS Defense COUNSEL committed Constructive Breach of Fiduciary-
-~ Duty,and legal Obligation/Legal Malpractice:
·. Issue Presented:- Ray Ball Jr, intentionally breached his fiduciary duty, et'c;
And Ronald G ~Couch., COVER-UP Ball's Constructive Breach of Duty; Malpract i v.e too:
Applicant asserts that these/his issue of issues presented herein in Ground onE
Erroe of law is JUSt One of Two of his[the] myriad of fac~brs t~a~ a~e complex·
and intertwined with such unsaf~ty procedure for Civil libertie_s, under Texas S1
ate Courts,with intrudin3 j~dges or usurpation of auth6rity,as it appoints
12.Case.
incompetent and irresponsinsible,and deceptive Court appointed CounselA,as -
Ray Ball,Jr.and his acquaint~nce~Ronald G.Couch,who as an appeal ~ppointed law-
ye~,lied ~nd breache~ his duty to caise colorable cl~ims of Constitutional err·
ors of l~w,as illq~trat~d above i~ Ground One error of la~.Thustthese ~aid Coti·
its and their judges are respec£fully to consider ~aid myriad of factors inter·
twined,in determining, if Applic~nt will be entitl~d to re-present himselt upon
thi~ i~sue of {ssu~s ~resented to be the[i~] ~ecisive an~ ~pe~ative facts upon
which are' the· .issues oif Appicant' s · Consti tution;il claimes raised hereto ~Rath­
er than· than·: re1 terate the
. . .
abov~
. I'
point( s) as ground :;ne error of la•i, the :e~ror
. . . .
one's point(s) raised are th~ ``me issu~s of fact,law,arguments,legar arg~m~nt:
· and f~ctual· recitations made in~!t'lnis grourid Two error of· lairr,as poj,nts\ ..-made in-
·. . . . r . ~ . ·. . . .
error' ori·~ for th~ purp()se of po~nt 'rlvo_, a·nd· wi 11 ~th-erefore; be argued ·toget~her,-
·· aHHig-~. i: wttti all the supporting;
.. - . . . . . . . -. . ' ·. . ·.
d~ci1m-e~ts
-!
i : .
pertinent-' to -this ·:c:aus·e ··sub''-:-, l.ldice:
. . . ·. . .. . . . . . ..J.
inc~---
.
- "ludi-ng 'Appl i'ca.iit ''s ..suppor.fing • e~h ibi ts·l·potnts '"and -=authpiri'tfes-:-:coupled'-"ii•H:eto ``~. •
·--~---- ex-p'r~.~sly: a~d; •ih~llyr in·c·oporate~ by reference _into'.::gr~urid- one/errt>r,c:c5nEh and'cb~--
?- . .· .. . . \. .. . . ·. . .. . . . .. · .
to the 11.07, ATC...;form, as the wrf t of he:\beas corpus, as if s~!t out ·entirely here·
in,an~ on the basis of the trail Court's existing record for this ca~e . on app·
eal,and on the fu~ther basis of testimony/extrinsi~ or and intrinsic evidence ·
anticipated tO be adduced on. a de nOVO/evidentiary, ho:laring 1 i >:: One needed in. CO·
nned:ion with this Applicant ,·s memorancfum .of :Eindings of facts and. conclusions··
pf law,and thus,on=e the said Cour~'(s) jud~e (s) .hears all the evidenc~ and-
sees the facts,w~uld sua sponte move/pursuant to Articie 27.08(4)(TCCP)~ickles
V.State,l70 ·s.W.3d 298,30l(Tex.App.-Waco 2005,order)(Gray,C.J,dissenting);Thom
pson v.State~697 S.W.2d 413,supra(Tex.Cr:~pp.l987);Jones V.State,98 S.W.3d 700
702-703(Tex.Cr-App.2003),and Boykin V.Alabama ,395 U.S./.38,242-43,89 S.Ct.l709
1711-12,23 L.Ed.2d 274(1969),as Boykin applies to this case sub judice,in that
pervasive breach of defense counsels is ~ constructive breach of their fidciar
legal duty(S) IS A - denial of counsel all together,and thus,after the plea ha
been entered in reliance upon cojrcion, and fraqdulent inducement,the plea -
bargin must not be honored,for the fact that "Ignorance,incomprehension,coerc~
ion,terror,inducements,subtie or blatant threats ~an mask unconstitutionality,
thus,the question of an effective waiver of su~h federal Constitutional rights·
is goVetned by fHderal standards.Therefore,the record can not possibly show th·
at Appiic~nt's legal due process of law was. ~p~lied,as satification i~ ~ : ple~
bargin induced,rather than have knowingly,intelligently,and voluntarily made~!<
See also Roberson V.State,2001 Tex.App.Lexis 5076(Beaumont 200l)(not designate<
for ~ublicat~ori but cited only for thi~ po~nt One:ertor of.lawt;
- •provi``d that the court shall 1nqu1re as to the ex1stance of ~ny plea
- · ·' :agre,)ments •.. and.in the event that-such an agr·~ement e:x1st,tht~
b :?.r~ 1 ng · · · "11 f o 11·ow or re]e c`` ·such
coutt~hall inform the defendant ~hether•1t•w1.
.ag~eement i.n open Court and before a; ·fililiffincg(;Oiflc;tlhe plea Should the -
. ,· · Court reject any such agreeh1ent. the. ·defen~ant shall be perm:i tted to - :
· ~I~bdia~ his plea of quilty~Id;Tex.Cod~ Of Crim.Proc.Art.26.13(a)(2)(Vern.sup~
13. case.:
2002)(e~pha~is added) ..•. Because Art.26.13(a)(20 u~es the word "Shall",its ...
terms are ~andatory.~nd must be ~onstrued accocdingly.Tex.Gov't Code,§ 311.016-
(2)(Vernon 1998).See In re S.L.P~,l23 S.W.3d 685(Tex;A~p.-Fort Worfh 2003),no -·
Pe~;);Lafler V-C~oper,566 u.s. ,(2012),no~l0-209: If defendant has been off·
.· ere_d a pl·ea bargin, he has the right to effective assistance·· of Counsel· in consi<
ering to acc9pt it,•tf• ~hat right is denied[as illustrated in point one],prej-
.udice can be shown in loss-of the plea-opportunity that led to a trail,resultin!
in a more· serve sentence; and ·defendant do have a Sixth Amendment right under -
th~ United States Constitution,tq effective-assistan`` of Counsel,a ~onstitutio·
. nal GUARANTEE or- it is breached~as such rights do extend to plea bargining pro•
• cessdra.at a~te,at 9;u.s.v:il~riae~s.on,72 F •.3d463,465(5th Clr.l~9S>"Csaine);s~e al-
so T`` Walistreet Journal,9/27:..``/2014,-A-4-"U.'S.Moves .To Curb USE of Waivers·~·
i~ Gui:lty -~ f~as: I~:._. Appl ic~nt' sl}!o~d pie a bag in stipuia tions also cbntained. br-
•·· -l tt~;::!::t:":::::!::::··-1~a~r ~:::r::~:``~:~!``!``:·:``i``:!``~t!::``-~;7t:~!!:! -.~
~··:,=:
.
``-,·G.Cou~h-
. ~
a-i1~-"'th~"i~--~-thei~--,``~V'~sire
. . . "I
breach of" duties. not to "object to the Prosec-
.
uto~•1s) void i~dictment(s~,BREACH of piea agreement an 6/3/200~,and failure tc
object to the trial Cou~t's and it'~ judge's judgment and sentence as illegal.-
Ex.'Parte Beck.;922 S.W.2d 1Bl-82.(Tex.Cr.App.l996) ;Ex Parte Mclver,586. S.W.2d 851
. I I ' . I '
854(Tex.cr.App.l979)(same)~"it is a void sentence when the puriishment. i~ unaut-·
hor"i..zed;such punishment renders the judgment void because it is illegal ,i.e.,-
·unathorized'·by law:Id,. .•.. Arid the Supr~me law of fhe Land has clarified this sa
me isst1e in that a plea of quilty is only Constitutionally valid, to the extent
(Tr,Ct.RR. l,pp.l0-19,based on the void indic~rnent)tah it is violuntary,an~ inte
lldgent ,and knowing-what is the actual.·: criminal offense he is faced with ?-th
Nature and Cause of the Claim against him.T:1e notice received,and if he recg~i­
zes the requirement oe legal due process of law ?.e.g.,Bousely v.o.s.,523 u.s.-
614,618,118 s.ct.l604,n.l-2,& 4-5(1998),id.at 523 u.s.619,11B s.ct.at l609;hold
ing t~at the_Trial Caart's judge must expl~in the charge to the defendant,and-
m~st consider both the complxity of the ~harge and the sophistica``dn of the de
fendant ? such as assure[e] he has at least a Junior high-school education[whic
he does not even h~ve a 3rd degard education];check for mental impairments when
admitting quilt;if any.;little familiarity with the American. legal sy~tern and ,mo
ost
'
cr~..lcially important, 'did he [Accused j reci•:!V~ a~. explanation of complicated -
. ' . . ' . .l . . .
ju~isdiction issue ?' aa well as d~fendant reading and ~iscussing,with his Atto
rney the previous[6/3/2005] plea agreement containg facts relevant to only one-
Count ag·ainst h~m?- or if the judge explained·. to him;and review the incident re
. . .
port with his participation in the trial ptior-to-pleading quilty,-'while rece-
ivinq 'a .copy o_f the alleged indictment and tevealing the elements of bbe offens
~harged to which he supposely pleade~ ~uilty to ? and as n~ne of the above had
taken place_~the tri;\l Court's judge_ qlsc, er:r~neously failed to: describe the re·g
.isite of the mena rea element·of the.charge :which ~•hould have,'bc.t didn't:,._-
(~T.z.) 14.Case.
include knowlledge that the over-all length of the defendant's alleged offense
was two offenses in one Count indictment which woul~ not have been-in~fact-a cr-
~me(S) ~WITHOUT Defendant affirmatively havi1g informed cl~rific&tion o£ ~he law
th~t cquld have revealed that the ~onduct to which the defendant plead guilty -
;: . . . ' ' . . '·
~a~ fn:\fact not.a ciim~ but a ci~il violation against his own house hold.~hus,­
after ~o much abuse of authority ,:this defendant [Applicant] wa,s affirmatively mis-
inform-by·,, the trial Court Is judge about tht~ elements of the offenses Applicant -
pl~aded quilt~ to,and thus,could not have possibly have been a voluntary and in~
teil ig~nt plea~ c;t~ required by the; Canst i t.ut ion of the United States .Bori~ley, .sup-
ra, 523'1\u. s. 619 is. Ct. at 1609; Cf.oLis- V .suarez, 155 F.3d 521, 524-25 (5th Cir~ 1 ·;}96) ( sc:
~-
_m~ .r:ei~erati~n
. .
.:: ;: ~
ab_o.:..re)
. .. ~
:Ya1enci~ V'pS.,92.3
- .:
F~2d 917,92l-:-22(lst
. .
Clr.l99l)'(same)
.. .
;Ne;
arez-Diaz v.o.s.,870 P.2d 417,422':(7th Cir.l989) (same) ;O~S.V.Odedo,l54 'r".3d 937,- ·
940C9:~:~ ·~ir.``98)(sarrie};*o.s.v.G~got,I47 F.3d 1193ill98(10th Ci-r.l998)(same) ;u.~
;-._,_ , i~s``~i,111 F~3a >~ 7i~,47E) 01 th ciJ.l997 >(~arn-e} ;·u:'s~v 2neW'~ltt9i· CBLL3d tao·9 ~f2'J72 (D~;c­
. .:·:Cir~.l9.~6)(same) ,.:1nd. Q:. . ~)~v._Reyria,ll~o F:;'jd l04,l06(5th :~fr.l-997)(~c:uner•E1f~Pilrte :.:,_,-_
- Th~;..a``545 s.w.2d- 469,470('f>ex.cr\'lAppol977) ;Talbott v.state,93 s.w.3d S21,S23-i4
(Tex~A~p~H~uston [14t~ Dist.] 200~.no pet.).B~cau$e Applicant could n6t have kno1
' I ' I
the ju:dgeould alter the plea bargin ~henafter certain pages o-r: the plea bargin-
1
were induced with conient of his all~ged waivers,"as Applican~ was allege~ly ch;
• I •
r•3ed with a multiple Coun·t_ indictment on 11/3/200·· arid on 6/3/200 , he 'was cocer·-
ced into consenting to be sentenced by the judge,but that was charged witboqt-
p~i6r notice that th~· open plea deal w~s-~hanged to 6/6/20~5 •.•. All these ill~­
gal irregularities were done with n6· pretrial moti~ns filed and no hearin~s weri
held prior to the plea on 6/6/2005.At least. accordin.'3 to Ball and ·couch. See a--
Appellant's Opening Brief,Cause#07~05-00250-CRpage iv~-~Then Couch speaks a con·
fused statement by implying,'that there was no agreement as to punishment and-
Appellant plead open-as to punishment~ This is illogical t ·-· .. _ Couch implies
"The Written Plea Admonishment :'appear' -to be in order. and signed by the Appe-
llant"~(CRl,pp 10-19)-But page 6 and 9 are the only pages that seem affixed witl
name of Joe(rather John)-Zavala,and only after the judge signed above his own -
name and above Applic'"lnt.or JOE %AVALA ... For the record,"there is no statement-
that Ball adivse Applicant of any of the above illstrations.Not even if counse.
Ball conducted some kind of pr~or investigation .or and in preparati~n of resear•
for Applicant's sentence:as a PSI investigation and then a recommendation withi
sentencing guidelines in-ran.9e 2 to 10-years or what would the Court judge imp-
osed after applying the correct guidelines in an advi3ory fashion and oniy afte
heightened scru~iny of the[ir] appli~ability •• The bre~ch of duty by Couch~ invol·
ves not obtaing ~elief by raising a $pecific Bookei7Type argument,of wh~ch depe·
nd~d or depend~upon a cornp~ehensio~ and technical r~ading of applicablejl~w.At
least i.f _not am issue of vo;;td judgment, then coming to be in the fbrefornt of ar
guing against sentencing errors •.• Inwhich Ball abandoned too.But ·its evidently
.
/``~a};_)e.··i ther Ball'or Couch tealizees that the trial process, fC'om ·indictment to-
(::'{o .. o:Jre-~ 15. C<3.se. ·
posf-~pnvi~ti6n relief,must be conduct~d via an approach that protetts the -
Const.itutional rights of their Clinent(s) or all Cit~zens in general.Thus,Among
the other issues that could have been rais~d on appeal] 'had Couch acted profes-
sional~y,are arguments th~t there was no tredible evidence to support the sent-
·i . . . . ···. . ·.. . . . ·.
-encingl enhancements that were ilfegally applied.Which iri its~lf is Unconstitut~
ional.But the bigger picture i~ the omission ot elements of a crime or offense
was not correct ~t th~·plea bargin hearing,as the judge relied upon the defici~
ent state~ents
'I . ,
in t~e faetuaL or' none-factual
.
re~ume.Mr.C~uch did not want to
rai.se .t:t1e · issU£ of Ball.8 s breach( of fiduciary duty -c-i arithmetic errrors of law
1
'
involv~d against the trial Couri!judge .. Since ie was t~e judge who erroneously-
);,: : ; . ..~.r . . . .
_failecE_to info:r:m. Applicant of uu~ _actual na~pre of the ch.3.rge(s) to which he.
\V~s- ~6,-~rced fa#.led ensure that there •wat~l an· adequate
t.p pleaq quil ty to J~d to
·:· .: . : -. (t+ . .· -. ·- - ·- -.- .. . . . .. -· . . .·
. . - : .' 'lt
~fac~p~)l·-a.nd l•?gal basis _for·· his jplea, and- thus, that· resulting aui-1 ty-'plea' was [ t ·
". herefcH:e involunary. See_ u.s. v.J~hnson;·381
. duly el~tec{tri'oo, empB;Ileled, sworn, ~d ``ed to inquire of off~es ~mmitted in Tarrant CountY, in the
_S~ of Texas, ~pan```` ~o``resent,m: ~d to the. 297th DISTRICT COURT . .
. -~ ;:.-: ``":.. :-·~ :;.~ :~:._ -~,:~··,-"·.:::· .. - - ! ' .
. of said Count)' that JOHN ZAV~ hereinMter called Defendant, in the County of Tarrant and State afo~d,
on or about the 28th da~ of July 2004, did · · ·
THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE .AN EXPLOSION BY IGNITING A
COMBUSTlBLE OR FLAMMABLE MATERIAL WITH AN OPEN FLAMa WITil THE INTENT TO
DAMAGE OR DESTROY A HABITATION, KNOWING SAID HABITATION WAS WITHIN THE LIMITS
OF AN INCORPORATED CITY OR TOWN, .
PARAGRAPH TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE
DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH
OAY OF JULY, 2004, DID THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE AN.
EXPLOSION BY IGNITING A COMBUSTIBLE OR FLAMMABLE MATERIAL WITH AN OBJECT
UNKNOWN TO THE GRAND JURY, WITH THE INTENT TO DAMAGE OR DESTROY A HABITATION,
KNOWING SAID HABITATION WAS WITHIN THE LIMITS OF AN INCORPORATED CITY OR TOWN,
PARAGRAPH THREE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE
DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH
DAY OF JULY,2004,DID·THEN AND THERE INTENTIONALLY START AFIREORCAUSEAN
EXPLOSION BY IGNITING A COMBUSTIBLE OR FLA1\fMABLE LIQUID WITH AN OPEN FLAME WITH
THE INTENT TO DAMAGE OR DESTROY A HABITATION. KNOWING SAID HABITATION-WAS
WITHIN THE LIMITS OF AN INCORPORATED CITY OR TOWN,
PARAGRAPH FOUR: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE
DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH
DAY OF JULY, 2004, DID THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE AN
E~LOSION BY IGNITING J,. COMBUSTIBLE OR FLAMMABLE LIQUID WITH AN OBJECT
UNKNOWN TO THE GRAND JURY, WITH THE INTENT TO DAMAGE OR DESTROY A HABITATION,
KNOWING SAID HABITATION
. WAS WITHIN THE LIMITS OF AN INCORPORATED
. CITY OR TOWN,
COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH DAY OF JULY,
2004, DID INTENTIONALLY OR KNOWINGLY, WITHOUT.THEEFFECTIVE CONSENT OF KERI .
LOVEDAY,'THE OWNER THEREOF, ENTER A HABITATION WI,TH INTENT TO COMMIT ARSON,
't " .! . .
PARAGRAPH TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE .
DEFENDANT IN THE CPUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH
~-
NAME JOHN ZAVALA
. CASENO. 0943395·
•
PAGE 2 of 2 -flEriUiY -
DAY OF JULY, 2004t DID INTENTIONALLY OR KNOWINGLY, WITHOUT THE EFFECTIVE CONSENT
OF :KER1 LOVEDAY., THE OWNER THEREOF, ENTER A HABITATION AND DID ATIEMPT TO· . ·. ·-
COMMIT OR COMMIT ARSON,
PARAGRAPH. THREE: AND IT IS FURTHER PRESENTED. IN AND TO SAID COURT THAT THE
DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH
. DAY. OF JULY, 2004, DID ,INTENTIONALLY OR KNOWINGLy, WITHOUT THE EFFECTIVE CONSENT
. OF ULLY LAUCHMANN,:TIIE OWNERTHBREOF, ENTER A HABITATION WITH INTENT TO
, COMM_IT'ARSON, -· i' -· . . .
. . . .
' PARAGRAP:H'FOUR: AND IT IS Ft1RTWR PRESENTED IN AND TO. SAID COURT THAT niE -· - •.
· DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH .
DAY OF JULY, 2004, DID INTENTIONM-LY OR KNOWINGLY, WITHOUT.THEEFFE(:TIVECONS~'I" -~ ,_,,,
jOF LILLY LAUCHMANN, THE OWNERJTHEREOF, ENTER A HABITATION AND DIDATTEMPT TO. · · .-
;COMMITORCOMMITARSON, -t·: . - .·. · ., "· '-- · _ -
.:HABITuAL OFFENDERNOTICE: ~\k IS FURTHER PRES~D TO SAID COURT THAT PRIOR TO
; THE COMMISSION OF THE OFFENSE dR OFFENSES SET OUT ABOVE, THE DEF&NDANT WAS
-FINALLY CONVICTED OF THE FELONY OFFENSE OF DRIVING WHll..E INTOXICATED AND ·FELONY
. '.REPETITION, IN THE 297TH DISTRIC1 (::OURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER
0676489D, ON THE 18TH DAY OF AUGUST, 1998, AND, THAT PRIOR TO THE COMMISSION OF THE
OFFENSE OR OFFENSES FOR WinCH THE DEFENDANT WAS CONVICTED AS SET OUT ABOVE, TilE .
DEFENDANT WAS F-INALLY CONVICTED OF THE FELONY OFFENSE OF DRIVING' WHILE
INTOXICATED AND two PRIOR MISDEMEANOR CONVICTIONS FOR DRIVING WHILE
INTOXICATED, IN THE 297TH DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE
NUMBER 0430067W, ON THE 25TH DAY OF JANUARY, 1991, .
Filed (Clerk's use only)
FILED .
OMAS A. WILDER, OIST. CLERK
TARRANT COUNTY, TEXAS
NOV' 0 3 2004
IME -f---,o(``-_
AGAINST TilE PEACE AND DIGNI'IY OF TilE STATE.
V . ~DEPUlY
v``·· Criminal District Atto · , Foreman of the Grand Iury
Tarrant County, Texas -
INDIC'r.MENT ·ORIGINAL.
. . .
• -
TtfOMAa
. . PILID·
AWI\.DE!'~If. Cl.ERK
TARRANT COUNTT, TE:l
.
. · TIIE.STAtn OF TEXAs
.
.. · · § . ·
. . §
• IN Tim ~6d• lUDIC~TiuCT
. ' ' . .
:·.
vs. § ·cOURT OF
§
Jobo Z01.v~k · § TARRANT COUNTY, TEXAS
WRI.TfJN PLEA ADMONISHMEN.fS
.' On this the . .. fo ·-~ day of .JUV\Q..;;. . . _ , 20~ pursuant · · .
to the requirements oflaw, you,)the defendant in this cause, are hereby admonished in writing
by the Court as follows: _ .
. ~ · ·· ·. 1. -; -[)<} You are ~h~ed by indictment or ~ormation wi~ the felony offenseS ~l. ..
c:if1\ " .; ' .· . l .-
nL\!lO() \ i . '
h , .W
o:r~ ~J.mw~ .. . O>uoe· .• '.
~- a~Wse ia 1Jeing uxta:s:Hs Itt h11 u ia•lll•~ e:tfeMa ef! .
~r .
~·`` ~,'1-.JI\oa-wjL~ .· .
orr-Codt.= C'.<>m>tJ-~.,4. r ;2= .. .
Wrlutft PWI.UnuillblurWtu • Ptlge I 0/ II
··- \
J "
--e-
•
:3. If convicted, you race the following range of punishment checked below: ..
- ``~=!=````ti````::;``;ree!s;;:!:n~ - -
- Criminal Justice. In addition. .,fine not to_exceed $10,000 may &1so be assessed.
. . . ; .. . . . : . ' . . . .. ·. ;-·
[ ] · SECbND DEGREE-FELON¥: . A term of-Dot more
than. 20 year8 -iloiJe!i's ~-- ·, , , ;:,~
~ ~ years .confinem~ in the Institutional Division of_the T~ ``~t o~ .. _. · · ~
Criminal Justice. In addition, a fine not to exceed $10,000 may also be assessed. ·
. . . ~ . .
I [ l Timm DEGREE FELONY: A term ofnol m~ than 10 Years nor lesil.tban • ..
· 2 Years confinemeritin'tbe lnstitlitional Divisionofthe;TexasDepartment of Criminal .. ~- , .
·I
i
'l Jilstice. In addition; J fine not to exceed ,$10,000 may· also be:,&Ssesseci.- ··{If the · ·
offense was commi~ before SeptembCr. 1, 1994, .a. term: .of-c:Onanement in a ... __ ____ _ .
I commUnity c:Omiction&l facility for a term of not more than one {1) .yeat:J;Day;be"::I·:o•_:;:~"'-'"'-c '~-~; _;. _ ;. ~-" ,,,
assessed in' lieu of confinement in the InstitutionalDivision).. -- .,,.:``-- ·. .. ....·: ... ``~:-.. ': :: . ~.--· -cc·
l
··i
' ·.. `` • •' '} ': • . •;." ..
. [ - l FIRST DEGREE ENHANcED: Life or any term of not ~ore than ?9 years
• '. . : . . I: . ..
+
:! ··. DC?! less ~ ·.1s -~ co~ent .in ~e Institutional Division_ of the. Texas ; ·
1
,, · D~artment.~ ~Justice. ·In addition, a fine ilot to ~ed $1(),000 may $o be ·
·' assesSed: .
i j· ' · · ·
[ ] . SECONP DEGREE ENHANCED:_· i..ife or ~y term of. not more thaD 99 . .
years nor less thail s: ~ confinement in tbC ~tutional Division of the Texas .
Department of Criminal JUstice. In addition, a fine not to exceed $10,oo0 Diay iuSo be
~ . .
......L. liTBIRD DEGREE ENBANCED:· ~ tenn.ofnolJDP,e:~:2o:year8·nor iess
than 2 _years confu;lement in the Institutional :Division of the Texu .Department of·.
Criminal Justice. In addition. a fine not to exCeed S10~000 may also be .ilsilessect ·
[ · ] STATE JAIL FELONY: A term ofnot less .than 180 days nor-more than 2
. years_ CC)Dfinemeilt in> a state jail. In additioo.. ... fine not to ·exceed, $10,000 may be
assessed. · . . · · · ·
Upon conviction, the period of confinemCJJ.t my be suspend~ and then yc;u .
will be placed Wlder superVision of the CQurt for a period of not leis than 2 years nor. ··
more than S years. The Court may also suspend all or part of any fine BSSe$sCd. .
As a condition of supervision, the Court may order that you be confined for up . .
to 90 days in the county jail, or not less than 90 dayi nor n:iore than 180 days in a state
jail. .. . . .
If your conviction if for ·D'!amJfact;ure, delivery, or possession with intent to
deUver a controlled substance in Pmialty Groupe 1 or 2 of Chapter 481 of tlici Health
and Safety Code,
.
or for Delivery
' .
of
.
Marihuana, the Court. may order your confinement
·. . .
•• •
in a State Jail for not less . than 90 days nor more than 1 year as ~·condition of
supervision. · · ·· · ·
..... :.( ] ,.§TATE JAII:"f'EI;;ONY ~CED To 'THIRD DEGREE"FELON'X~. ·.· .... ..:..: ·. ·
. A~emi ofimprisonment.fornot·tnore than lO.yearl nodess·than 2 years ~ent: ·. ~; .· ·
in the Institutional Division. of the Texas Department of Criminal Justice, and in
addition, a fine not to exCeed $10~000 maybe imposed. · . .
· A person adjudged.guilty;of a· state-jail felony shall be punished for'a·third · ·
degree felonY if it is shown on the trial of the on"ense that: · . .·· ·
(I) · a deadly-~eapon as defined by SeCtion 1.07 of the Texas Penal Code ..
. ·' . ·was used 'or exhibited during the comrriissfon of the. offense Or during
t . the ~ate flight following the colllJiJi8si.On of the offense, and that . .
th~ i.DciiVidual used or exhibited the deadly wc:apQn or was a party
tO . ··
·;J·, : the ~ff+.: and _knew·- that· a. deadly weapon--woUld. be. used
exln1nted; or .. .. .. . . .. ar,
:j .. ;·;;, .,_,:,,_., .:.'"'' :.:,~,r·, i;;,!<``:-.: ````f:'~eJi:;``~;'!:fe``;t``re``n~ ;: . ;·!C " l''
,1 · Proce_dure; or · . · . . . · -- .., ... ·· ., ..
i b. for V.:hiCh the judgment contains an ·affirmative finding under:. ..
-:'
._:· ,;···-.
.. •I - .
~-~·;.::````:"E7~.·i.·
+ Seetic:ln ~g(l)(2), Article 42~12, Code of Criminal PrOcedure; or . ·
`` .. c. the. mlti~dual is eonvicted for a state jail feloity punishable under
pen;.}!Code Section 12.35(a) 1111d the individUal has. previouslY ·
.. ~
!
. . ·been Fallyconvicted oftwo state jail felonies.
[ ] STATE JAIL FELON)' EN8ANCED TO SECONP DEGREE FELONY:
A term of not more Jhan 20 years nor less than 2 years confinement in·Ulc lristitutional
DIVision of the Texas J;>epartment of 'Criminal Justice. In addition, a· -fine not· to
exceed $10,000 may be ass~
A person adjudged guilty of a state jail felony slnill be punished for a ~ .··
degree felony if it iS shown on the trial of the offense.that: ·. · ·:, , ,., ·..•· +·:· ,v:: · ~ c -;.:.'
(1) . · the defendant lias been previously convicted. of two felonies; and the
second previous. felony· conviction is for an offense that oCcurred ·
subsequent to the first previo~ conviction having become fuui.l. ··· ..
[ ] STATE JAIL FELONY PUNISBEiHJNDER 12.44Cal PENAL coni A
term of up to 1 year confinement in the County Jail arid/or a fine not io c;xceed $4,000.
may.be.imposed.
[ ] STATE JAB.. FELONY REpUCED JO cusS A MISDEMEANOR
UNDER 11.44lbl PENAL CODE: A term of up to 1-year confiilement in the
County Jail and/or a fuie not to exceed $4,000 may be imposed. · ·
[ ] QnmR:~----~--------------~--~--~
WriltMP/a~·l'tlt-Jof/1
..- I
• e:
4; JURY TRiAL:
·You are ·entitled to have a jury detem:tbte. whether you are
guilty or nbt guilty; and if guilty, to assess your-punishment; ·Should you bave·more than one
case pending, you may have them tried separately. ·
, .. S~ . ·You maY iequest.that .. the.indictmentbe..tead and exp~Cd·;to:you.in Qpen ;.. ·
court. You arc· not obligated·to give·evidence·against yoursel£ ·You may require the State to· ·· ··
prove.the elements oftheoffense·illleged in the indiebnentby.legaland competent evi~ee ·
beyond a reasonable doubt. ···"Vou · and your. attomey · may .confront and cross-exalnine .
witnesses~ You have the power of subpoena to bring _witneSses into court to testifY :iri.yolir ·
"behalf. I
-~
. 6. OPEN PLEA !NO PLEA BARGAIN): This is yc>ur trial.. Should the Court ...
find you guilty, your -punishment may be assessed 11nywbere WitJUn the range prescn'bed bY· -:. ·. ·
la\V f~ ~offense. If.you -~ e~gJ.'b~e, you may. receive probatio~.or:.def~judication; :_: :- -· 7 .. _·-.
but there ts no assurance that }'au will Onee:the Court has· ~tved your.gwlty plea; you . ··
mayno~wi~wthat_pleawitllotitpenniasionoftheCourt. · --·-· -·.~. · - ---- ------- --- ·
:-.:-::-:&=:· ::;£. -C:::;..,!!~::-;.:.:.~- ~
. 7. . ·· PLEA JARGAINING: A plea bargain or reCommendation of punishmen1 i$~ : ~ ' '
- --'~-.:. ''. NOT BINDING on. the CoUJi. The Court may set puuisluiient anywhere:Withintherimge,``::~
~ded by law for this on:CJU\e.j If there ~ a plea bargain agreemen~ the· Court ~ll inform ..
y.ou m open Court whether the ``ent Wtll be followed before making any finding ~your
plea;:. Should the·eourt rejecti.the a8reement, ypu will be permitted to wi\Jldraw yo~ plea
should you desire. There. "¥1 ·not. be any· binclin8 · agreementS. regaromg conditions. of
community supervision. The c:Onditions of community supervision ``by the Court. Any .·
waiver of specific conditions of eommunity supervision muSt be approved by;the Court-prior :
to the plea.
8. PERMISSION TO APPEAL: · When the CoUrt follows a plea bargain
agreement, permission of the Court must be given before you can prosecute an appeal on any
matter in the case,· except for a matter rilised by.Written motion -filed prior to 1rail.·.This .Court .
seldom ~nsents to an appeal where a conviction is based upori a guilty plea. .Where. there is
no plea bargain agreement, any appeill of your conviction upon a plea of nolo contendere or .
plea of guilty is limited to jurisdietionill issues only.
. . _9; a
cmzENSm: If you are NOT citizen of the United States of Amerl~ a.
plea of. guilty or nolo contendere for this offense· may result in depOrtation, the exclusion
from admission to this country, or the deniill of naturalization under federilllaw. ·
10. DEFERRED APJUDICATION: Should the CoUrt defer adjudicatipg your
guilt and place you on probation, upon violation of any imposed condition, you may. be
mested and detained as provided by law. You will than be entitled to a bearing limited to the
determination by the Court, without a jury, whether to proceed with an Bdjudication of your
guilt upon the originill charge. No appeill may be taken from. this determiilation. Upon
adjudigation of ;yow plt, the Court may assess ~ur punishment anywhere within 1bc ·ranse
provided by law for this offense. ·
--- \
'·:
'"
•• •• ·. .
· ..
After adjudication· of gJ.lilt, all proceedings including assessment ~or .punishment.
·. pronoun~ .of sentence; gnmting of probation and yom right tp. appeal:continue as ·if
adjudication of guilt had not been deferred, except that a.Court assessing punisbnient after an
adjudication of.;guilt. of.::a .. defendant. cluqed ``th :a .:state ;jail :felony· ~y; &Uspenci the _ . . -"--
imposition of the sentence. and plaCe. the defendant -on c:Ommunity :supcmlii.on or may o~et-", :. · ......
the sentence be executed, regardless of whether the defendant b8s previoUsly beeil conVi~ed· ·.. ··
ofafelony. . .
. ll .. ·· PROBATION: If.the Court grants you straight probation a5 oPJ,osedJo.:
.deferred adjudication.- upon ·violation.of Bliy-Jmposed condition; you may be arrested and
· detained as provided by law; You ..will then .be entitled .to a hearing limited to the
• detcnniJlation by_ the cOurt, without a jmy. whether to revoke ~ur probation and sentenCe
i .. ·. you to a term of confinement Qot to exceed that originally. asseSSed by the .Couit ai.the _time
youwerefound guilty.- . . . ·\·- i -·- . . . . : . .. . . • . . .. .. _·.. . . _ . . ... . . . , ...
. .. . You:will not:he entitled-~ earn good time Credit on state.jilil_sentences.. The:Court · ..
. may. but is notreqUited, to gi~e you credit on asentence' for any time you.were required tO "-- - -.
serve in a state jail as aconditi6n of the sUpervision. · · . . . · ",~.,; •i: ·~ ;.``':.:!';: `` ,:. ':2·:;;:-;•••.•.
-·-···. _::·...~.- :. li~:~:": TERMs OF StiP~RVISION: If the Court ~ts you d~ferred SfljWlication:h;~ ..
. probation or straight probatior, jthe Court reierves the right to amend the conditions~ of ·• ·· · ..
probation. The ~urt may·~ ~tend the term ofprob~ti~n not~: exc~ ten years.· . _.,., .
·... ·.. ~ . -·13. ·. PAROLE:. ·NFither ·the Court nor· your ~ey ~e- any. pfmiuse8 or .. ~" ·.··
.i'
representations about the amoUn.t of acitual time you will serve on asentence of inc~on ·
in the Institutional Division of the Texas Department of criminal Justice.
Neither the Court nor your attamey makes any tepresentations about the-disposition. of any
parole ~tion hearings~-. , , -- ·
, 14. SEX QFFENPER REGISTRATION: Ir.}'l)u are convi~ of piaced ~-. oi
· deferred adjudication for~ offense listed in Chapter 62;.Code.of.Criininal Procedure, you
will be required to meet the registration requirements of Chapter 62. You will atsj) be subject
to the driver's license applic&tioil Proc:edures listed irl Article 42.016, Code of. Criminal
Procedure.. . . .
.. . . ·1s. PRESERVATION OF EVIDENCE: Articie 38.39 of the Code ofCririlinid.
. Procedure requires the proseeutor representing the State in this mailer· to preserve evidence
known to contain biological material that if subject to scientific testing could establish or
exclude a peri;on as the perpetrator of the offense. This evidence mUst Usually be preserved
in a non-capital felony until either the defendant dies; completes his sentence, or i~ reieasCct
on parole or mandatory supervision. .Such evidence may be destroyed if the State· c:Omplies .
with the provisions of Article 38;39(d) of the Code of Criminal Procedure and the_ defendant
does not interpose a written objection. In addition. pursuant to Article 64.01 of the COde of
·Criminal ProcedUre a.convicted per&oil ~y be entitled to forensic DNA. testing. ·
..
..
•
'
. 16.. FUTURE USE OF CONVICl'ION FOR ENIJANCEMENT:.-Showd -you
· be found guilty of a felony offense, slich conviction may be l!Sccl·to enhance odilcreasc the
punishment range for any futUre felony or misdemeanor conviction. · · · · · ··
. . ··1.7:; · ··.BANKRYPTCY:·.dfdhc,ec;urt;pts·.~bation·OI'·defers.adjudicating:.yOur>:.::·!;.````:: ·
:·,
.
a
. gUilt and ·places you on>probation,;,.:and -condition, of probation .inclUdes .p&.ymeiit .of .. , .. :... ·>:
.restitution to ·a victim of the offense,·pay~nent of restitution shaii nOt be discharged through · · · . ~-- ··
-sub$C!Cluent bankruptcy. proce:C:dings. --..The COurt shall :COnsider any·. attempt.~ to disc:hqe ·· · ·
a
payment ofresti~tion through bankniPtcy violition of the plea agreement• -· '
. 18. If no indictmen~ has been returned by a grand jury c:haiging you with tbi8
· . offense, you do not have to .BtiUut ·trial witil.such an indicbnent bas been returned.· You then
will be given ample time (at jeia.St 10 days) to consult With Your attomey ..before trial. By
signing this document, you:~ -to. waive your. right .to .:wait. 10 .days- in -the:..event .an :: ~ .
~i! . ·information is filed on today'~ c!ate. You alsO·-waive-yolir right ·to,w!DHO days_;for your ·
.-'i
i
- •.. · · attorney tO prepare if the attomey/was appointed more recently thail10 days-ag(); -,_.- ....:::,.~" _
i . . . .. . .. ~-- . l . .;. ·. . .. .· ·. .. . -__ :. :.: -:__:_: ·-.. _-· --_... - - ---_ ·.·. . .
--! · · 19. . If a victim impact statement bas been retunied to the prosecutor ..under Art.. ·· ·
26.13, Code of Criminal Pro~uh, the Judge has revic:Wed a copy o(that.~9.rl; \ ... _ ' ... 2 ~? ·~ ··
·0.; ' ·. ·]· 1- ·~•~•••. ·.-.~·"'·'~'"•· - . : . . .·
Written~='~'~':- ,~·c, .:;.::.:.·. ......... --
admonisbmenbi kivtn mebrtheJudge. I understand all ~fmyrights anct~h.;i',.,,,.,;~ ;:;,.=·· .,,~, ·.•...• ,-~ ,._..
:[ . . .... _ .. ~ ...... -.~· ``~bmentsf.IJbav_e_notquestionsoftheJudgeormyattom~ ..... · ·c:• . ,. .. . ,.
· (15) . lviaive and give) up_ any and all rights 'o.hppeal. . · · ·
. ~- -: .
. ·•. . i· I . ·
{16) WAIVER OF J!RESERVATION OF EVIDENCE: I have been advised by .
the. Judge of the above named couit of the requirements under the Texas Code .·
ot Criminal Procedun:, Article 38.39 that any -evidence in possession of the
attorney representing the State .or a clerk or any other .officer, which is ·knOWJ1·
· to c:Ontain biological lllllterial and which if Subjected. to scientific testing ··
would JilCm: likely than not establish the identity of the p~ CC)mD]itting tbe . ·
offense for which I. am presently charged in _the above-captioned and .
numbered cause or which would exclude a person. from a gro'ilp of pcr8oJ;IS: ·. ···
·who could have coulmitted .the offense for which I am presently charged iri the ' ·
above-captioned and numbered cause, shall be preserved.. I further have. been · ·
· advised that such evidence may not be:: destroyed by the attorney ~enting . · · ·
. the state or a clerk or any other. officer possessing s~d evideilce if either my . .. ~ '.
attomey, the above-iiamed court, or I object within. ninety (90r ·days· • : :
having received notice of the planned destruction of that evidence: .. . · ·
Joined by my attorney, and fully Understanding my rights .to (1) the ·
preservation of. the above-descn"bed evidence, (2) notice''of any pianned.. •·
destruction of the above-descn'bed evidence, and (3} an objection to any,· ..
destrUction of thfi above-described evidence, I wish to waive those rights and
do not object to the deStruction of the Bbove-described evid~; ·I furtller
wish to waive those rights and do not object to the destruction of that evide4ce
.at such time as either the attorney for the State or a clerk or any officer ••
curiently in possession of that evidence sba11 deem proper. }agree tM,t .teSting
~.._~ ``··
'· ~ 11 \ •• .e· <'~''
.:
. . ·.
.•1 &Wear ~d, it is'.iny:testimony:~h~: i'h&ve-~ever:befoiC,been;:_,
.open. colirftbat '''-: -·,::'·
convic~ed of a feloriy _offense in ·imy court .of the. tate o£Texas, any_other state,: nor iri any.
Federal Court of the United States. I request the. urt to consider my application for -a
probated sentence..
..
,.
:·.r
:~ ;_' .~l.....,C.p:.......;......... daY .(>f -· ..•.
- -.-..... . . . . ' . l-1 .. .· . ·. . . ·. - ' . . .·.
. In open court w~ joiil ~d i&pprove defend8nt•s waiver of jlll'y' trial purSuant .to Art: ·· : •
, ..; 1.13, Code ·of ~inal Procedute, and the stipulations of evidence puisuant to .Art.l~Is; · · ·
. ' Co~e of~ Procedute. AS iprovided m. Section.12.4S of ~e )'exas PenatCoiie; We .
. .further agree and consent to the ~ssion of guilt 'of any unadjudicated offense designated in
Paragraph 2, Page One of the Written Plea Admonishments: In additioil, the Court finds as a
fact that tlie Defendant ·is mentally competent ·and that his plea is intelligently, 1i:eely;,·..
· knowirigly and voluntiuily entered. It is agreed that the Court may takejudicial noti~ of this'
document an the Court takes judicial notice of same. · ·
·.~Jt: ···~·.·.
·. ·