Aguirre, Joel

Opinion

I~u~~i~:: ~~:::o~~urt of trimi.nal Appea~$2-e Inre: Joel Aguirre,Pro Se Capacity, §Tr.Ct.Case#CJ432-010495-1255195-A APPLICANT/ Relator, § C-432-010496-1255195~8 §

Versus, § George Gall aghes, habeas corpus Judge' § 'rCCA case# RE"'EI"ED '~' for/to ~he 432nat~ JcudictiaTl Distri~t § ~--C-O_U_R_T~O~F~gC~R~I~MvniN~A~L;A,nPyrP-E-A-LS--- Court oi Tarran oun y, exas;unaec- § ipherable signature of judge who signed § memorandum and ORDER of 6/26/2015;Clerks§ DEC 17 2015 for said habeas Court'( s) Judge ( s), et la. § Respondent(s)

Abel Acosta, Clerk

Relator's Original Application For A Writ of Mandamus Pursuant to § 22.221 (b) of the Texas Government Code;R~les 72.1 &172.2 Of Texas Rules Of Appel~ late Proced~re.Among Other laws ~hat Applj .... To the Texas Court of Criminal Appeals,and Respond~nt(s) of interest: Let there be und~rstanding,that now comes,One Joel Aguirre,a pro se Applicant in the lower Courts,and Relator herein after,sub JUdice,and in the above styled,Caption and numbered causes,cases ·of action,and proceeding in his pro se capacity, files [t]his application for a writ of mandamus,pursuant to Texas Government Code ,§ 22.22l(b) and Rules 72.1 and 72.2 of the Texas Rules of Appellate Procedure, complaining of Texas and United States Constitutional rights violations of Your Relator,by the said Respondent(s) and invoking the Jurisdiction of this Superior Court of the Criminal Appeals,pursuant to Article 5,§ A of the Texas Constitution -Curry V.Wison,853 S.W.2d 40,43 & n.l(Tex.Cr.App.l993);Garcia V~Dial,596 s,w. 2d 524,527-28,& n.4(Tex.cr.App.l98Q):Cf.Dennis v.state,647 S.W.2d 275,Supra(Tex. cr.App.l983).Thus,Rlator files [t]his writ of mandamus for docketing and processing it. to be issued against and upon the habeas corpus presiding JUdge,George Gallaghes ,of the 432 2nd Judicial District Court of Tarrant County of the State of Texas,for abusing his judicial discretion,and authority,in acting outside the scope of the law and judicial authority,~nd ihus,for intentionally failing and refusing to perform his ministerial duites and legal oblig~tions under and pursuant to State of Texas Constitutional laws,and statutory state laws emplaced for judges guidelines and principles of law-provisions under writ of habe~s corpus basis in due process of law.Inwhich Shall be a ~rit of right and never be suspended, i.e.,Article 1.08 of the TEXAS Cod~ of criMihal Procedure;as well as Article I,§ 12 of the' Texas Constitution and Article 11.07,§ 3(b)(TCCP).And will state the following reasons why mand~mbs is necessary,to wit: · I . A.

lst arid foremost,Respondent(s) ih this case and cause of action,have not properly and legc:tlly processed, docketed and...;. ·-•. filed Relator's application· for a writ of habeas corpus amendm~nt and supplemental brief,£iled and served upon all pertinent respondents in the lower Court's jurisdictional division or in any State of Texas Court with exclusive or original jurisdiction over cause#C-432-010495- 12551~5-~D and C-432-010496-1255195-D(or as A & B at the end of each citation) and Party(s) of interest.But ihwhich Respondent(s) in this mandamus proc~eding -~ is allegedly the habeas corpus judge,Gedrge Gallaghes,a state elected or appointed or siiting by assiggment,as to an unknowri date arid who supposely adopted the unkonwn State's memorandum of some cansoled and withd~awn issues filed by an offender without Applicant's/Relator's consent.But,the fact that some illegal third party interveners ha~e intervene and hind~red Relator's access to obtain the legal remedies habeas corpus provisions provid~,is ~vid~nt that f~aud was perpetrated upon the State Of T~xas Said Court and its jbdges.ALONG,and -upon Your Relator .That is,Sharen Wilson and Andra Jacobs names are being used to dismiss a- nd deny Relator's Constitutional violation claims and thereby,not heard by the habeas corpus Court's judge,and thereafter,not heard by the TCCA's J~Ust 1·c es ....

l.plead.

I ft·W h i c h I your Re 1 at or subsequent 1 y 1 ~"t) h j,.$ i n d u c e d 1 i 11 e g a l and u n 1 a wf u 1 p e t i t- ion submitted1was amended in timely matters1before the ·unconfirmed response was presented to the alleged trial or habeas corpus Court.On or About 11/2/20- J.S.That Applicant•s motion was entitled :"APPELEANT"S NOTICE TO AUGMENT THERE- CORD AND TO TIMELY AMEND AND SUPPLEMENT HIS ORIGINAL FILED PETITION FOR A-WRIT OF HABEAS CORPUS1AD TESTIFICANDUM1Pursuant to rule 33.2(a)~(b)l (c)(l)(l)l (B)~(e) (f) & (38.7 et seq of the Texas Rules of Appellate Procedure1Among others cited and Invoked~ ... Thu~~signed and delivered on ll/2/2015 ... Whenlthereafterlon ll/- 9th/20l51Jacobs and Wilson1hereinafter1interveners1proposed a baseless and groundless alleged memrandum1findings of fact and Conclusions of law regarding the issues raised in their[interveners] findings and submitted cooter-contentions. SEE the interveners copy submitted to your Relator . . . . submitted these items to show bad faith prosecution on the part of The Texas Department of Criminal Justice 1governed by Brad Livingston,and through his agent(s),Edgar D.Baker1as the actual and legal Custodian of recocd1and jailer who holds your Relator hostaged and restcained of of his liberty ,as per-the illegal and unlawftil State Court's '''onviction.JP>Jr~lU!lln.Cei!i by Gallaghes as/1 the presidinlj judye of trial.Whom himself never legally acquired subJect~matter jurisdiction over the causes in dispute & nor JUrisdiction over your Applicant1Relator sub JUdice . . . . . Evenmveover,there is another interder sitting as an i~poster for a )udge,in an tinauthorized all~ eged memorandum and its ORDER for designation of future resolutions-See exhii:it»- its 3-K & 3-L(with 3-A to 3-M).Not only is there no law citation ~ithin that baseless and illegal motion practice brief1but the undecipherable$signature~wi­ th an unidentifiable name,is wh~t is scribed as a mark for what appears to be for a presiding or sitting judge,on 6/26th/2015 ... And such fraudtilent indications are comoflauged with some stamp~mark imaging some magistrate "for Tarrant county, but no Texas notice to confirm [sic] that undercipherable phantom judge Wbiah ... unidentifi~ble judge,was not that judg~ who presided o~er tbe[ir]memora- "'dum that ·merely implies"there are controverted1previously unreasolved facts wh-- ich are material to the legality of Applicant 1 s confinment~-requiring designation of the issues for futuce resoiliutions~ Id.at exhibt 3=K •.. Dated 6/26!2015 •.. These unauthorized briefed in~onclusive or conclu~ion~ry allegations for Jay Coballe~ ero and the warden of the Mark Wayne Micha~l Unit,who holds Relator unlawfully, confind,as stat~d in Relator's COMPLUSORAR counter claim(s) and motion to amend the writ of habeas corpus issued by illegal inmate intervention(inmate Mr.Green) who was not authorized to send any frivolous claims.But,nonetheless,Relator timely sent his motion to amend on time,before any alleyed habeas corpus proceedinys took effect and th~ legal person(s) of·interest were served.So no party has thus been served process of service •.. Which Relator's Cotinter-claim contends against such wrong and illegal third Party'(s)·intervention aad explains why'and how they are obstructing )Ustice.See the seven page motion to am~nd,at ex~ibit 4-A TO 4-G(4-H to 4-L are the counter-claim e~hibits). B) The Respondent(s) is inVolved in the habeas torpus proceedings below,and is intentionally failing to act as requested by Your Relabor,and that breach of h~r/ his (it] p~bric fiduciary duty ,and legal obligations is a failare to perform [a] ministerial fuction,as a matter of law and under the facts of this~case because a conflict of interest exist.The £rail Court's officials or officers interwined with Relator's causes on appeal,state,"inter alia,varies violations of State and federal laws by the PROSECUT~NG A1TORNEYS ••. Thus,asserting ~umerous civil commonlaw violations by said tri~l Court's Pros~cutors and trial JUdge,as well as their Court appointed defense counsel's intentional b~each of duty.Rather than reiterate the arguments,authorities,legal arguments,factual recitations of law,and points/ground~ raised as issues of gf~fa~t and law for the purpose of this writ of.mandamus,.those_factual, r.ecitations oL.la.w and .. legal. arguments. of .Relator_'s - Comp~ili~oray Count~r-claims brief and motion to amend are incorporated by reference into this Relator's mandamus application,as if set out entirely hereintoo,as well as his exhibitation submitted contemporaneous~y,and will,therefore,be argti~c together in connection with this mandamus proceeding.DeLeon V.District Clerk,l87 S.W.3d 473,474-75{Tex~Cr.App.2006). C) The Respondent'.(s) failure to act upon Relator's application for a writ Qf habeas corpus,ad testificandum as ~mended on or about ll/2/2015;along with Relator 's motion for sanctions and comppl~Bry:counter claims elaberating what is the rel i e·f Relator seeks against the Res.p9,nde11t ( s) or and. her/his subor ina ter ( s)-

2.Plead, ·-

as l~e Recalcitrant Clerk(s) who will refuse and has refused to file,docket and properly process Relator's w~it ofi habeas corpus in its written true contents ,as properly executed documents which claim Civil Rights actions involving [his] fundamental Constitutional rights guarantees pursuant to the United States C6h~titutional Amendments,as the Fourteenth's Cause l,among others under due process of law violations in that St~te of Texas trial Court.But deriv~ tive-from the Prosecuting Attorney' (s) induced fraudulent indictment,as found under Hamilton V.McCotter,l72 F.2d l71,183-84(5th Cir.l985),and State and federal laws cited & cases.See indictment(s) and information thereof in their contents and substance of illigitament or omitted essential and Constituent elemeA nts of the alleged offens~(s) sought to be charged,by a valid indictment or complaint in a case of criminal allegations or accusations which is the main means by which [the] Court(.S) obtains subject-matter iurisdiction,and is "the jurisdictional instrument upon which the accused stands trial~State V.Chatman,67l F. 531,538(KAN.l~83):Manriquez V.State,943 S.W.2d ll5,supra(Tex.cr;App.l995);Ray v.state,3 s.W.3d 623,625(Tex.cr.App.2000)(other related cases cited in incorporated exhibits).

II. A.

Mandamus relief sought to be compelled(is purely a ministerial act to be perfe armed is found under Articlea 11.02,11.03,11.04, &1L~..0¥,§~1)&(3)'(&),(b) & §§ 6 & 7 as well as Articles ll.ll,ll-13,11.14(1) to (5)(TCCP);Ex Parte Golden;99l S.W.2d 859,supra(Tex. cr.App.l999) and Articles 11.15,11, 16,11.19,11. 23,11, 27 ,11. 28, 11. 29,11. 30( 1) to ( 5), *11. 31.11- 32,11.36 and ll.40(TCCP).Thus,these said provivisions were cited for invocation of the laws of the State of Texas,as for enforcing Art.l.04 and l.08(TCCP),and thereby,challenging legal matters related to the validity of the Prosecution arid judgment of quilt.Your Relator has exhausted his ability to file,docket and have his causes of action processed·in·a proper and legal manner,as presented in his petition for awrit of habeas corpus,and thus,the semantics of disposing of an earlier habeas corpus petition that was canceled by your Relator,prior to that unauthorized sitting or retired ghost judge,for the trial habeas Court's iudge,on 6/26th/2015- and then judge George Gallaghes unauthorized adoption of the :illegal interveners illegal motion response or unlawful brief submitted with no dignified letterhead,State seal orany other mark typically affi~ed to correspondence certifying its!their]source as~a genuine instrumentality of Texas.In fact,there is no decipherable signaure or signatures of Sharen Wilson and Andrea Jacobs at the end of ~heir baseless. & groundless state r~sponse to Relator's petition and memorandum of law,with his exhibits attached insupport of hi~ liberty interest isses raised as C6nstituti~ anal claims ... Wrose yet,the habeas torpus acting alleged judge gives no reason why its inconclusive findings of facts are sustainable against Relator,nor any reasoned arguments to support either factual findings required for an actual denial or and its conclusion of law-miss~p~lied to these cases sub judice.Thus,this is proof of usurpation of power treatment.Hence,the interveners letter for t- heir respon~e is even generated by a generic printer on light grade paper inferior to legal'business stationary.Hence,the Respondent{s) erroneously br inten~­ ionally failed to address the legal proposed motion to amend and Augment the record ,and the Compulsory counter-claims against those fatally defective process ed brief ... Thus fraud-upon-the-Courts by interveners,and erroneouly falling to perform his/her fi~uciary duty,as a ministerial function to m~ke a ruling on those 'two subsequent motions to amend and for sanctions ag~inst the said interveners ... Therefore,this mandamus complaint is to obtain an Order granting Relator's relief against the Respondent(s),as an appeal of his issues subject to these pioceedings .Because he has no right or remedy to appeal Respondent'·ls) actions or inactions to atrick,:-:-~.iriterveners improper/i-llegal brief practice in this instant case, and must be pr<;)_hibite(l ~rom:.•~dc?P~.+-~~, §l,lCh "}:lleg~l c,:Qntention.s that only .seive t6 deiay and d~ny :justcice o~ behalf of Yo~r Relato~see also Guerra Y~Gar­ za,987 s.W.2d 593,supra(T~x.Cr.App.l999).Thus,heretoo,the district trial habeas corpus judge did not have jurisdiction and exceeded his/her/their authority by unilaterally deciding to order designation for future resolution of Applicant's application or some kind·of applicaiion.Since no title was mentioned ,as to the ·type of writ was being addressed? .•. Thus,judge,George Gallaghsjcommitted usuvpation of power on·ll/24th/2015,when even the unqualified magistrate had already execised jurisdiction in this case(s) on appeal below,on 6/26th/2015.See exhibit 3-M and compare with 3-L ... riFurthermore,it was this imposter judge,with an ..

,, 3_ . P1ead.

undecipherable signature,and an un~etermineable identity,who had not served the proper and legal individual Person[Respondent at habeas conpus appearance to show cause of Relator's unlawful confinement] ,their complaints and summons and affidavits for every party of interest as Respondents,under Oath that said summons and complaints had been delievered to them or him/her or their Attorney(s) ... But,Edgar D.Baker was not duly and legally served any summons ar nd complaint to deliever the body of this Rel~tor,before that habeas corpus -~ Court's judge,and would have been no longer detained on the original wa~rantl­ ess arrest papers and fatally defective proc~ssed void indictment(s) or information thereof,but under the authority of the habeas judge.i.e,Art.ll.32 and ll.45(TCCP);Boumediene V.Bush,553 u.S.723,128 s.ct.2229(2008)(cases cited in~ the amend€dQbnief motion & Counter/sanction motion).H~wever,it was the impos~ 2 ter 6v~~ntruder,as the undetermined ~pplication judgedwbo had prompted and sol~ icited the alregad criminal district Abtorney~(s) intervention to respond~td­ claims submitted by an Offender impersonating a paralegal and to ,impair and hirider Relator's rights to access to the Courts.But,no judge presiding over this Relator's causes of action had subject-matter jurisdiction t6 hear and decide on any type of Order or give JUdgment thereafter,.if an adoption of illegi'timate oppositions would come into existance.And they did ... These facts are all documented and undeniable ... Therefore,Relator's complaint about the inte~veners a- re unattended to by Respondent(s),and the Rlator's motion to amend was not ruled on prior to that Order of'Tl/24/2015,by G.Gallaghes,acting as prsiding assumed judge to the 432 Judicial District Court of ~arrant County,Texas ... Inwhich judge Galleghes,was exceeding his impli€d ju~isdictional authority by unilaterally deciding to acquire~subject-matter jurisdicti6n over citation causes of convictions under,cases 0:-432-010495-1255195-D(or and A ?) and C-432-010496-12- 55195-D(Or & B ~),from another County and City of Fort Worth Texas.Where judge, Ruben Gonzalez,Junior was assigned to preside over said ~ases sub ~udice.And,­ those unconstitutional proceedings were held upon "Hearing On Rejection of Plea Offer! ... on ll/4/2012~See Reporter's Record,Volume 2 of 6(said causes},~age l-as if under Court of Appeals# 02-12-00509-Cr-~-There is no.numbered Appellate Court to determine what Court of Appeals these proceedings where sent to a- nd hea~d & filed with ? except th~t an Angie Taylor, CSR, RPR Official Court Reporter for the 432nd District Court'' is imaged ! !phone#(817)-884-2341 •.. Wroseyet , the Pa~ties in dispute are The STATE OF TEXAS AND JOEL 'AGUIRRE,but no indication who is the Defendant or Appellant or Applicant or Respondent(s) or Appellees ?see said records,as exhibits 5-A(Tr.Ct.R.) .These documented transcripts were not Ordered transmitted to the TCCA,nor all pertinent documentation under the alleged indictment(s) or and information thereof.Even wrose yet,no reference to provisions pusuant to ll.07,et seq(TCCP). See exhibit 3-M,also submitted by Relator,Mr.Joe~ Aguirre .•. That's why it was important for Relator to be bench warranted back to the legal and proper County of Conviction,so as to challenge those defective process of service proceedings held without Relator being present by a general or special appearance,sua sponte,by the habeas Judge, and its authority,if any ••. "Notice of these illegal irregularities is critical to this mandamus claim,because the judge'(s) at the trial Court is a Respondent (s) undertaking such void motion practice by interveners.Thus,Relator has reason to believe that there must be [a) Scienter or and an intruder,meaning that the[ir]wrongful tort action and unlawful activity,is conduct that is knowingly and deliberately being committed,rather than inadvertent or unintentional .•..• Advance knowledge of these unprecedented set of circumstances prodded the Conduct complained-of herein, and has provided the l i r) elements &f scienters. "it !Ls: therefore,grounds for granting mandamus relief a~ainst the Respondeht(s) in vacating it's ORDER or void order for adopting·an illegal third Party's STATE'S Memorandum,Findings of Facts and.conclusions of law as its own and thus,G.Gallaghes recommendations that the relief JOEL AGUIRRE(Applicant) REQUEST be denied: be Denied •... are decisive Orders that must be vacated as void ab initio.State ex rel.Resenthal,98 S.W.3d 194,203(T~x.cr.App.2003).Therefore,without this TCCA's intervention the lower Court's Respondent(s} or its .subordinater'0~) inactions will continue to prevent Your Relator's entitlem~nts to legal due process of law and inturn Relator cannot remedy Respondent' (s) misapplication of his,her,their statutes~--which is the[ir] unconstitutional incarceration of Relator,and thus,

4.Plead.

.the ~arranted writ of habeas corpus cannot accure untill Relator previal~- in this mandaums proceedings for action to be taken.Which includes1not not limited to 1 this unconstitutional ~uilty plea will go uncorrected unless the mandamus relief is issued and the result sought by this Aggrieved Relator1corrected as a msnifest ministerial act1as opposed to being a Judicial or discretionary ~ act not to hear Relator's Constitutional claim~ violations1and said Respondent 1s) refused to provide Your Relator an opportunity to be heard~and thus1any ado- . ~ted baseless opposition brief would be denying Relator his rights to due proce~~ ss of law and that inturn1makes an~ JUdgme~t rendered therefrom against him1void ab initio.Conse~uently~where there is a Rule providing for relief from a void JUogment 1and is applicable1relief is not a discretionary matter1but is mandatory. New York Life Ins,€0.V.Brownl84 L3d 1371142-43 & n.l6-17(5th Cir.1996);Ruiz v. Quart e inllhll.'ro., '5'-@'4 F . 3d 52 3 1 5 2 7 ( 5 t h Ci r . 2 0 0 7 ) ; Cf. Davis V• State 1 2 2 7 S . W. 3d 7 3 3 1 "/ 3 6 & n.l-3(Tex.Cr~App.2007);Cf.Dennis V.Statel647 S.W.2d 2751supra(Tex.Cr.App.l983) 1 Rule 27.08(4)(TCCP) ALLOWS the TCCA'S judictices to relief a Party ... from anyprior issued Order or judgment against him,but that is ~oid because the trial C~ urt's JUdge that rendered it lacked JUrisdiction of the subJect-matter,and as in this case at bar1that judge acted in a manner inconsiStent with legal due process of law.Hencelmandamus relief is grounded on Relator's absolute rights1clearly an~ d plainly a·right that necessitates that the law plainly describe the duty to be performed as i b is purely a ministerial act sought to compel th'e habeas corpus - JUdge to grant the writ on it's merits,as it is beyond dispute that Relator will previal on the writ~s raiSed claims merits~ .eLeon1supra,at 474-75;Brown V.Edwards 1721 F.2d 1442,1448(5th Cir.l984),in Relator's case too1his quilty plea issues will never be barred because they were never actually legally binding bn hi~.as a plea argeement in contract matters1and thus,never actually litigated at the trial Court's ptoceedings.Id. B) Relator has nb adequate remedy at law,to compel the habeas corpus judge to act upon Relator's asserted u.s.constitutional rights violations by Respondent' (s) prior to1and during the plea bargin bunch or trial on the merits,and has contined untill this present day[ 12/5/2015].The habeas corpus judge's or intruder's substance of findings are not supported by substantial evidence1"as Relator's atfid ~vit,amendment motion,and counter claims are not only suppressed,but are not rebutted point-by-point~by the opposing Party(s),nor Respondent(s).Relator hasrequested mandamus reli~t,as a challenge to that habeas judge's fact-finding process itself-on the ground that it was fatally d~ficient in it's m~morandam's material ~as if adopting ''Affidavit of Jay Caballero! •. Morphed into Sharen Wilson's and Andrea Ja~obs Proposed Mem~randum all~gedly filed on ll/9/2015 ... With the Dis trict Clerk's Office of Tarrant County,Texas,but no signature for attesting to t- hat fact,and no time when filed ! Thus1the interveneis,and Respondent(s) defective process of service presents facts showing Respondent'(s) Court's deficient~- j performannce and gross prejudice from in~tituting the[ir]actions against Relato~s claims raised in his petition ... illustrating there is no substantial evidence in the[ir] State Court~s record to show otherwise-but Relator has shown why and how the alleged indictment(s) was:as is fatally defective in substance material,and is the reason Relator neg~tes more than seven essential and Cbnstituent elements of each of the Prosecutor'(s) causes of action1as t~o negate every fact and inference that could have possibly supported the JUdge's denial.And,thus,whoiRelator touched on in whole against th~ indietment(~) invalidity,it bears reiterating in pirt,in this mandamus proc~edings,for conclusively establishing all the-elements of an affirm~tive defense to be entitl~d to summary JUdgment on his petition for a writ of habeas corpus.e.g~cathey V • .Booth,900 s.W.2d 339,34l('I'ex.l995),and see Park Place Hospital v.Estate of MileS,909 S.W.2d 5b8,509(Tex.l995);Rule 166(~)(T~ ~x.R,Civ.P)~Holds that summary judgment is proper when evidence establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the Prosecutor'(s) cause(s) of action~Id .... · · C)the ReSpondant'(s) Court's adoption of baseless findings of facts processed was deficient and defective because Relator never had a fair trial in the Trial JUdge 's presence,and that fundamentally unfair habeas Court's Judge=s defective process of service denied RSlator his apportunity to hav~ his relevant habeas facts ~heard and judiciarily deteimined ... Inturn,the habeas judge'SRespondent'(s) fact findin9s procedures have been proven1as can be found,to be faUlty urider Art.ll.07 et seg(TCCP),when the Re~pondent(s) erroneously failed to accept as tru~ factual allegations/accusations in the Relator's habeas corpus petition, 'that was amen-- ed,and with ~elator's exhibitation submitted,those factual assertions were neither incredible 6n their face,nor clearly refuted by the trial Court's record;as Respondent intentionally failed to hold a hearing where those facts,acc~pted as true, 11 'ould have satisfied the basic requirements for relief(i.e.,stated a - [ ]

prema facie case) ... Consequently,Relator has satisfied a sufficient showing,as well as making a complete and whole his entitlement to mandamus relief.State ex rel.Hill V.Pirtle,887 S.W.2d 921,926-927, & n.6,9(Tex.Cr.App.l994);State Ex rel Eidson VEdwards,793 S.W.2d 1,6-7(Tex.Cr.App.l990)(& case law citations). This TCCA's justices have JUrisdiction to issue the relator's requested writ of Mandamus i n t hi s cause sub j u d i c e , pursuant to Art i cl e 5 , § 5 A of the 'I' ex as Cons t i'"" tution and Article 4.04(TCCP). Wherefore,Premises duly considered,this writing Relator prays that the Texas Court of Criminal Appeals JUstices will grant this Relator's application and issue a Writ of mandamus directing,George Gallaghes,the Chief Respondent,as JUdge presiding for the Order filed on ll/24/2015,in the 432nd Judicial District Court of Tarrant County Texas,to vacate it 1 s Order entered for Sharen Wilson and Andrea Jacobs proposed response to some application for a writ of habeas corpus filed on June 25,2015,as signed by said Wilson and Jacobs and then,their proposed memorandum and findings of facts were filed on ll/9/2015 .•. (a week after Joel Ayuirre filed his amended motion,and that want of supplemental claims),and thus,issue the writ of mandamus to nullify that Order entered by the Respondent; as well as any unseen Order(s) signad and entered by the int~uder JUdge presiding on 6/ 26/2015 ; or if Charles P.Reynolds,Tarrant County Criminal Magistrate(unkonwn if of Texas State ?),his Order must be stricken as void and also vacated,for lack of jutisdiction over the Subject-matter causes of action,and Parties of interest and even further invacating Orders,that Order held on 10/4/2012,under JUdge Ruben Gonzalez,Junior,the hearing on Rejection of plea offer and all subsequent pro ceedings held under his and any Orders and JUdgment(s) prounced by him must be vacated as void ab inititi.Thus,those reJected plea offer proceedings under cause #12551950(& related casues) are issues of void information,for said Respondent.• (s) and judges were with their Courts,la~king subJect-matter jurisidction over this Relator's imposed charges.which the law clearly allows ~hen Prosecutors do violate the laws and their violations of the rul~ of law will thus subject thei~ Case(s) to reversal on appeal,and no judge/Respondent(s) should overlook the Proscutorial misconduct,'which resulted in a denial of legal due process of law of the defendant!Id.at St~te ex rel.Eidson,793 S.W.2d 6 7 ...

Executed on__/_f/4 this day of~!v., 2015: - s_.

el Agui

TDCJ/Mark Wayne Michael Unit,2664 F.M.2054, Tennessee Colony,Texas 75886 _ _..-- LV!_ , Certificate of se:vice and Declaration . I' .J o £./ 'IU")'41/'"cS- _,am an Inmate unlawfully and Illegally restrained and confind and against My will~by Edgar n~B~ker,Custodian,and senio~ Warden of the Mark Wyne Michael Prison Uriit,located at 2664 F.M.2054,Tennessee Colony,Texas 75~ 88£,within the County o£ Anderson of the State of Texas,~nd do affirm under penalty of perjury,that all I stated is true,correct,atcurate and complete to the best of My knowledge and recourses,and have provided the Respondent(s) of interest a copy of My writ of mandamus filed herein~by serving him,Mr.B~ker,a copy of the same, in person, via- the Michael Unit's mailroon depaFtment, as I drop~ sa. id copy off at their mailroom window and gave copy to mailroon Cler:k, On /0 this da~f /);.o.e~ ,2015, pursuant to 'l'ex. Civ.Prac. & Red .Code, §§132. 001-:132.00~ ~ , App Ica /Appellant

6.Plead.

NO. C-432-010495-1255195-A NO. C-432-010496-1255195~B

EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TARRANT COUNTY, TEXAS

STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW THE STATE OF TEXAS, by and through the Tarrant County

Criminal District Attorney, and in opposition of the Application for Writ of Habeas

Corpus respectfully states the following to the Court based on its information and

belief:

I. HISTORY OF THE CASE

The applicant, JOEL AGUIRRE ("Applicant"), pled guilty, pursuant to an

open plea to the jury, to two counts of aggravated assault with a deadly weapon, to-

wit: a firearm, on October 17, 2012. See Judgments, No. 1255195D. The jury

assessed punishment at two terms of twenty years confinement in the Texas

Department of Criminal Justice- Institutional Division. See Judgments.

The Second Court of Appeals affirmed the trial court's judgment on

November 14, 2013. See Aguirre v. State, No. 02-12-00509-C~ 2013 WL 6046121

(Tex. App.- Fort Worth Nov. 14, 2013) (not designated for publication).

COPY

II. APPLICANT'S ALLEGATIONS

Applicant alleges his confinement is illegal for the following reasons: (1) his

guilty plea was not intelligent because he was advised that he would be eligible for

parole after his flat time and good time equaled half his sentence; (2) he received

ineffective assistance of appellate counsel; and (3) counsel failed to communicate a

five year plea offer. See Application, p. 6-11

ill. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF THE RECORD .

There is a need for an expansion of the record; however, there is no need for

an evidentiary hearing. An affidavit from Applicant's plea counsel, Hon. Jay.

Caballero, is needed to address Applicant's allegations. Applicant need NOT be

brought back to Tarrant County for a hearing.

IV. ARGUMENT AND AUTHORITIES

A. Applicable Law

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 pr~ponderance of the evidence that th~ error contributed to_ his conviction ,(d;-<.f ,rt;,,;tc1

or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In

order to prevail, the applicant must present facts that, if true, would entitle him to the

3

--r-~ .~<;· (~·hj.. 1

relief requested. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985).

Relief may be denied if the applicant states only conclusions, and not specific facts.

';::';~_:;;-::.;,:,.,1 Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an

applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte

B. An affidavit is required before Applicant's application may be resolved.

Applicant asserts that he received ineffective assistance of counsel and that his

plea was not voluntary or intelligent as a result because ( 1) he was improperly

advised about his parole eligibility and (2) counsel failed to convey the five year plea

offer. See Application, p. 6-7, 10-11.

In order to evaluate the merits of a claim of ineffective assistance of counsel,

the record must demonstrate an explanation of or the motivation behind counsel's

actions. That is, whether those. actions were the result of strategic design or negligent J(~verser-f. · conduct. Thompson v. State,-9-S.W.3d '808, 814 (Tex. Crim. App. 1999). Applicant

has not attached to his application any affidavit by counsel explaining or justifying

the alleged deficient conduct. As such, it may be necessary for counsel to respond to

these claims.

In order to determine the merits of these claims, it is necessary for the Court to

designate this issue for future resolution. See McCree v. Hampton, 824 S. W.2d 578, .!lre:u{1_ ov71f0 -;;(e.,; ~1J..I/.zMu.J- t-/.e./,~.ef re.-j«e.r;le//tJ'!'e"(y_J< ! e;~vs '7€ f.IJJr~>~r/ic!_;'

579 (Tex. Crim. App. 1992)(A trial court must designate all issues requiring future

resolution within thirty-five days after the filing of a petition for habeas corpus in

order to retain its jurisdiction over the case.); See also Tex. Code Crim. P. art. 11.07

§3(c), (d). Specifically, the Court may wish to order an affidavit from Applicant's

plea counsel, Hon. Jay Caballero, addressing Applicant's allegations and the alleged

deficient conduct.

Applicant's application should be DESIGNATED for future resolution.

V. CONCLUSION

Wherefore, premises considered, the State prays that this Court ORDER an

affidavit from Hon. Jay Caballero responding to Applicant's allegations that his plea

was involuntary due to ineffective assistance of counsel and DESIGNATE

Applicant's application for future resolution.

Respectfully submitted,

SHAREN WILSGN Criminal District Attorney Tarrant County

Andrea Jacobs, Assistant Criminal District Attorney - -··------·--- -------~-------- ---------------- -------- --------· ·-- .

State Bar No. 24037596

-----------------------~---

40 1 West Belknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672

I.

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant, Mr. Joel Aguirre,

TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas

75886 on the 25th day of June, 2015.

Andrea Jacobs

CERTIFICATE OF COMPLIANCE

I certify that the total number of words in this State's Response is 1060 words

as determined by Microsoft Office Word 2010.

5

/

NO. C-432-010495-1255195-A NO. C-432-010496-1255195-B

EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TARRANT COUNTY, TEXAS

MEMORANDUM

The applicant, JOEL AGUIRRE ("Applicant"), alleges his plea was

involuntary and that he received ineffective assistance of counsel. See Application,

p. 6-7, 10-11. However, Applicant presents no affidavit or statement from counsel

explaining the alleged misconduct.

Thus, there are controverted, previously unresolved facts which are material to

the legality of Applicant's confinement requiring designation of the issue for future

resolution.

ORDER

·1. Applicant's application is DESIGNATED for future resolution.

2. An affidavit is ORDERED from Hon. Jay Caballero, Applicant's plea counsel in cause number 1255195D, addressing Applicant's allegations of ineffective assistance of counsel and involuntary plea.

3. Hon. Caballero shall submit an original and three copies of his affidavit to the post-conviction writ clerk by August 25, 2015. The clerk shall ·· ---~-. -- --··----------------then-mail.a.copyoftlie-affidavifto-App1icani m1d-:fillWat:<ra-copy-or~the ______________ _ affidavit to the post..;conviction section of the Tarrant County Criminal District Attorney's Office.

4. The clerk of the Court is ordered to send copies of this order to the following: a. Applicant, Mr. Joel Aguirre, TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886, b. To the post-conviction section of the Criminal District Attorney's Office, and

c. The Texas Court of Criminal Appeals.

SIGNED AND ENTERED this the __ day of _ _ _ _ _ _ _, 2015.

JUDGE PRESIDING

-:.t R~ e Q \i:.le.d qN flil\.e.. r CoF'1 t._l- lc -e. ~ . :s 0/J e- ~ t-~ 1\ e.d. ~ <..t -t-- h..cz_ .'J 4 clJ e .

-·

/

FILED

THOMAS A WILDER, DIST CLERK TARRANT COUNTY, TEXAS

JUN 2 6 2015

NO. C-432-010495-1255195-A S'·?o NO. C-432-01 0496-1255195-B TIME-·~:-_:d:--:;:L~2-r--rJ12--=~"::"':DE::::-P::-:uTY ~v.. -

EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TARRANT COUNTY, TEXAS

MEMORANDUM

The applicant, JOEL AGUIRRE ("Applicanf'), alleges his plea was

involuntary and that he received ineffective assistance of counsel. See Application,

p. 6-7, 10-11. However, Applicant presents no affidavit or statement from counsel

explaining th~ alleged misconduct.

Thus, there are controverted, previously unresolved facts which are material to

the legality of Applicant's confinement requiring designation of the issue for future

resolution.

ORDER

1. Applicant's application is DESIGNATED for future resolution.

2. An affidavit is ORDERED from Hon. Jay Caballero, Applicant's plea counsel in cause number 1255195D, addressing Applicant's allegations of ineffecti~e assistance of counsel and involuntary plea.

3. Hon. Caballero shall submit an original and three copies of his affidavit to the post-conviction writ clerk by August 25, 2015. The clerk shall then- mail a copy ofthe ·affidavit to- Applicant andJorward,a copy of the, ·· affidavit to the post-conviction section of the Tarrant County Criminal District Attorney's Office. ·

2

4. The clerk of the Court is ordered to send copies of this order to the following: a. Applicant, Mr. Joel Aguirre, TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886, b. To the post-conviction section of the Criminal District Attorney's Office, and

c. The Texas Court of Criminal Appeals.

SIGNED AND ENTERED this the J day of _ _ J_~-----' 2015.

JUD~IDING

- Fi I f_~·-·, I HOMN'A W/1 ·:-!.:·:.L:

l-~~ - - D1-•:::~ Dto• .

0

"'RI"-?ANT r'of])\Jc,.:;--

, .... -· · f · 1

/'?I.:.. CLERK J ) · ' t::)(AS

NO. C-432-010495-1255195-A NUV 2 4 20111 t.••

NO. C-432-01 0496-1255195-B TIME._~ BY

~d2-;7?<_..} _

./' '1 . - - - - L L -f:::::.___ DEPUTY EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TARRANT COUNTY, TEXAS

ORDER

The Court adopts the State's Memorandum, Findings of Fact a.Tld Conclusions of Law as its own and recommends that the relief JOEL AGUIRRE ("Applicant") requests be DENIED. The Court further orders and directs:

1. The Clerk of this Court to file these findings and transmit them along with the 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 Court's fmdings to Applicant, Mr. Joel Aguirre, TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886 (or to Applicant's most recent address), and to the post-conviction section of the Criminal District Attorney's Office.

SIGNED AND ENTERED this ~'f day of ~ '2015.

. FilED TH(J.MAS A \1\~LDER. DIST CLERK •ARRANT COUN'TY TEXAS ..

NOV 09 2015

NO. C-432-010495-1255195-A TIM _ _ _ _ _ _ __ NO. C-432-0.10496-1255195-B BY_________ DEPUTY

EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TARRANT COuNTY, TEXAS

STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW

The State proposes the following Memorandum, Findings of Fact and Conclusions of Law regarding the issues raised in the present Application for Writ of Habeas Corpus.

MEMORANDUM

The ·applicant, JOEL AGUIRRE ("Applicant"), alleges that he is being

unlawfully confmed because ( 1) his guilty plea was not intelligent because he was

advised that he ~ould be eligible for parole after his flat time and good time equaled

half his sentences; (2) he received ineffective assistance of appellate counsel; and (3)

counsel failed to communicate a five year plea offer. See Application, p. 6-11.

In response to an Order from this Court, Hon. Jay Caballero, Applicant's trial

counsel, has filed an affidavit addressing Applicant's allegations of ineffective

assistance of col.msel and involuntary plea. In light of Applicant's contentions and

the evidence presented in. the Writ Transcript, the Court . should consider the

following proposed findings of fact and conclusions of law:

FINDINGS OF FACT

General Facts

I. Applicant pled guilty, pursuant to an open plea to the jury, to two counts of aggravated assault with a deadly weapon, to-wit: a firearm, on October I7, 20I2. See Judgments, No. I255I95D.

2. The jury assessed punishment at two terms of twenty years confinement in the · Texas Department of Criminal Justice- Institutional Division. See Judgments.

3. The Second Court of Appeals affirmed the trial court's judgments on November I4, 2013. See Aguirre v. State, No. 02-12-00509-CR, 2013 WL 6046I2I (Tex. App.- Fort Worth Nov. I4, 20I3, no pet.) (not designated for publication).

Unintelligent Plea

4. The reporter's record indicates that the trial court advised Applicant that [T]he jury will be instructed that - and you need to understand that before you can be eligible for parole, half your sentence in - in consideration of the time that you're actually in custody or incarcerated, plus your good time, must equal the amount of half the sentence before you will be eligible for parole. And there is no guarantee that parole will be granted at that time frame."

[3 RR I2]

5. Hon. Jay Caballero represented Applicant during the trial proceedings. See Judgment; Caballero Affidavit, p. I.

6. Hon. Caballero advised Applicant on several occasions that Applicant would have to serve ha~f of his sentence before being eligible for parole. See Caballero Affidavit, p. 2-3.

8. There was no way for Applicant to know whether the jury would assess punishment at two years or twenty years.

9. As part of his plea, the State waived the repeat offender notice. See Indictment, No. 1255195D; Judgment; Caballero Affidavit, p. 3.

10. Applicant's claim that he would not have made an open plea of guilty to the jury had he known he would be required to serve half of his sentence before becoming eligible for parole is without merit.

'-

11. There is no reasonable likelihood that Applicant would have not pled guilty and would have insisted on going to trial had the court not advised him that [T]he jury will be instructed that - and you need to understand that before you can be eligible for parole, half your sentence in - in consideration of the time that you're actually in custody or incarcerated, plus ,your good time, must equal the amount of half the sentence before you will be eligible for parole. And there is no guarantee that parole will be granted at that time frame."

[3 RR 12]

12. Hon. Caballero's affidavit is credible and supported by the record.

Ineffective Assistance ofAppellate Counsel

13. The jury was charged as required by article 37.07, §4 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 37.07, §4; [CR 131-32]

14. Applicant's appellate counsel filed an Anders Brief. See Aguirre v. State, No ..

02-12-00509-CR, 2013 WL 6046121 (Tex. App.- Fort Worth Nov. 14, 2013, no pet.) (not designated for publication).

Ineffective Assistance of Trial Counsel/Five Year Plea Offer

15. Applicant testified to this Court, on the record, that Hon. Caballero advised him that the State had offered him a five year plea offer. [2 RR 8-9]

16. Appli9®1'~ clGi_ilJl that C()l.ffiS~ll1~Y~L~4y!_s~<LhiJ;ll of th.e Jiy~ Y~C:l_f :Rl~a_ offerj~ false.

17. Applicant testified to this Court, on the record, that he refused the State's offer · of five years but "would take anything under 5 if [the State] dropped the enhancement." [2 RR 9]

18. Applicant's claim that he would have accepted the five year plea offer if counsel had advised him of it is false.

CONCLUSIONS OF LAW

General Law

1. 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 Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001 ).

2. Relief may be denied if the applicant states only conclusions, and not specific f~cts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his ~laims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).

Unintelligent Plea

3. There is a presumption of regularity with respect to guilty pleas under Texas Code ofCriminal Procedure art. 1.15. Ex parte Wilson, 716 S.W.2d 953,956 (Tex. Crim. App. 1986).

4. Before accepting a guilty plea, the court must admonish the defendant as to the consequences of his plea, including determining whether the plea is freely, voluntarily, and knowingly given. See Tex. Code Crim. Proc. art. 26.13.

5. When a defendant complains that his plea was not voluntary due to ineffective assistance of counsel, '"the voluntariness of the plea depends on ( 1) whether cbunsel' s advice was within the range of competence demanded of attorneys fn criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."' Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. 1999) (citations omitted).

6. Counsel properly advised Applicant as to the fact that he would have to serve one-half of his sentences before being eligible for parole.

7. Applicant has failed to prove by a reasonable probability that he would not have pled guilty and would have insisted on going to trial had the trial court not advised him that his good conduct time would be considered when determining his parole eligibility.

8. Appli~ant has failed to overcome the presumption that his plea was regular.

9. Applicant's plea was intelligently made.

10. This Court recommends that Applicant's first ground for relief be DENIED.

Ineffective Assistance ofAppellate Counsel

11. The standard of review for ineffective assistance of appellate counsel claims is the Strickland v. Washington test and is the same as the standard for ineffective assistance of trial counsel claims. Ex parte Jarrett, 891 S.W.2d 935, 944 (Tex. Crim. App. 1994)~ overruled on other grounds, Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

12. The two-prong test enunciated in Strickland v. Washington applies to ineffective assistance of counsel claims in non-capital cases. Hernandez v. State, 988-S.W.2d 770, 771 (Tex. Crim. App.1999). To prevail on his claim of ineffective assistance of counsel, the applicant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would- have been different in the absence of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

13. The <;:ourt of Criminal Appeals will presume that counsel made all significant decisions in the exercise of reasonable professional judgment. See Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crjm. App. 1992).

14. The totality of counsel's representation is viewed in determining whether counsel was ineffective. See Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984).

15. Support for Applicant's claim of ineffective assistance of counsel must be firmly grounded in the record. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).

16. An attorney is prohibited from raising claims on appeal that are not founded in the record. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978).

17. An attorney is under an ethical obligation not to raise frivolous issues on appeal. McCoy v. Court ofAppeals of Wisconsin, 486 u~s. 429, 436 (1988).

18. "[B]ecause the trial judge in this case instructed the jury according to the legislative dictate expressed in article 37.07, section 4(a), he did not commit error." Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).

19. Any issue that the "good conduct time" jury instruction was improper would have been frivolous on appeal.

20. Appellate counsel properly did not ratse the "good conduct time" Jury instruction on appeal.

21. Applicant has failed to prove that his appellate attorney's representation fell below an objective standard of reasonableness.

22. A party fails to carry his burden to prove ineffective assistance of counsel where the probability of a different result absent the alleged deficient conduct sufficient to undermine ·confidence in the outcome is not established. See. Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989), cert. denied, 492 U.S. 912.

23. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffective claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland v. Washington, 466 U.S. 668, 697 (1984).

24. Applicant has failed to show that there is a reasonable probability that the result of the appellate proceeding would have been different had counsel complained on direct appeal that the "good conduct time" jury instruction was Improper.

25. Applicant has failed to show that there is a reasonable probability that, but for the alleged acts of misconduct, the result of the proceeding would have been different.

26. Applicant .has failed to prove that he received ineffective assistance of appellate counsel.

27. This Court recommends that Applicant's second ground for relief be DENIED.

Ineffective Assistance of Trial Counsel/Five Year Plea Offer

28. The two-prong test enunciated in Strickland v. Washington applies to ineffective assistance of counsel claims in non-capital cases. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). To prevail on his claim of ineffective assistance of counsel, the applicant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence .of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

29. The Court of Criminal Appeals will presume that trial counsel made all significant decisions in the exercise of reasonable professional judgment. See Delrio v. State, 840 S. W.2d 443,447 (Tex. Crim. App. 1992).

30. The tota1ity of counsel's representation is viewed in determining whether counsel was ineffective. See Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App~ 19_~4). ..... , .

31. . Support for Applicant's claim of ineffective assistance of counsel must be ·firmly grounded in the record. See Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).

8

32. Counsel properly advised Applicant of the five year plea offer.

33. Applicant has failed to prove that counsel's representation fell below an objective standard of reasonableness.

34. A party fails to carry his burden to prove ineffective assistance of counsel where the probability of a different result absent the alleged deficient conduct sufficient to undermine confidence in the outcome is not established. See Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App.), cert. denied, 492 U.S. 912 (1989).

35. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficienCies. The object of an ineffective claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland v. Washington, 466 U.S. 668, 697 (1984).

36. Applicant has failed to show that there is a reasonable probability that the result of the proceeding would have been different had counsel advised him differently. ·

37. Applicant has failed to prove that he received ineffective assistance of counsel.

38. This Court recommends that Applicant's third ground for relief be DENIED.

WHEREFORE, the State prays that this Court adopt these Proposed Findings

of Fact and Conclusions of Law and recommend that Applicant's grounds for relief ·

be DENIED.

Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County

;'Aildrea Jacobs, Assistant 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. Joel Aguirre, TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886 on the qo/lday ofNovember, 2015.

(Andrea Jacobs

CERTIFICATE OF COMPLIANCE

The total number of words in this State's Proposed Findings of Fact and

Conclusions of Law is 2435 words as determined by the word count feature of '

. Microsoft Office Word 2010.

Andrea Jacobs·

NO. C-432-010495-1255195-A NO. C-432-010496-1255195-B

EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF §

JOEL AGUIRRE § TA~T COUNTY, TEXAS

STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW THE STATE OF TEXAS, by and through the Tarrant County

Criminal District Attorney, and in opposition of the Application for Writ of Habeas.

Corpus respectfully states the following to the, Court based on its information and

belief:

I. HISTORY OF THE CASE

The applicant, JOEL AGUIRRE ("Applicant"), pled guilty, pursuant to an

open plea to the jury, to two counts of aggravated assault with a deadly weapon, to-

wit: a firearm, on October 17, 2012. See Judgments, No. 1255195D. The jury

assessed punishment at two terms of twenty years confmement in the Texas

Department of Criminal Justice - Institutional Division. See Judgments.

The Second Court of Appeals affirmed the trial court's judgment on

November 14, 2013. See Aguirre v. State, No. 02-12-00509-CR, 2013 WL 6046121

(Tex. App.- Fort Worth Nov. 14, 2013) (not designated for publication).

COPY

II. APPLICANT'S ALLEGATIONS

Applicant alleges his confinement is illegal for the following reasons: (1) his

guilty plea was not intelligent because he was advised that he would be eligible for

parole after his flat time and good time equaled half his sentence; (2) he received

ineffective assistance of appellate counsel; and (3) counsel failed to communicate a

five year plea offer. See Application, p. 6-11

ill. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF THE RECORD

There is a need for an expansion of the record; however, there is no need for

an evidentiary hearing. An affidavit from Applicant's plea counsel, Hon. Jay

Caballero, is needed to address Applicant's allegations. Applicant need NOT be

brought back to Tarrant County for a hearin~:

IV. ARGUMENT AND AUTHORITIES

A. Applicable Law

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_prepQnderance of the evidence that the error contributed to his conviction ' • l· ,~ • I 1<..<wl'·<- 'f F·e.n ~ < 0"7 or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In

order to prevail, the applicant must present facts that, if true, would entitle him to the

2

c--

r(~ (,:<0'..j;

relief requested. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985).

Relief may be denied if the. applicant states only conclusions, and not specific facts.

o:,;:(:;,;~ ,,, Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an

applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte

B. An affidavit is required before Applicant's application may be resolved.

Applicant asserts that he received ineffective assistance of counsel and that his

plea was not voluntary or intelligent as a result because (1) he was improperly

advised about his parole eligibility and (2) counsel failed to convey the five year plea

offer. See Application, p. 6-7, 10-11.

In order to evaluate the merits of a claim of ineffective assistance of counsel,

the record must demonstrate an explanation of or the motivation behind C<?unsel's

actions. That is, whether those. actions were the result of strategic design or negligent J(Wer".jf•nl · conduct. Thompson v. State;'9-S.W.3d '808, 814 (Tex. Crim. App. 1999). Applicant

has not attached to his application any affidavit by counsel explaining or justifying

the alleged deficient conduct. As such, it may be necessary for counsel to respond to

these claims.

In order to determine the merits of these claims, it is necessary for the Court to

designate this issue for future resolution. See McCree v. Hampton, 824 S. W.2d 578, .!JeJ/t~: o•.lt-r/0 ~v ~:?..1/eMu.J-t- Je/ul- rc/'~e.rf"J /tlllf-t'/..."'

i eNs '1t f.f] Jrz."i'i<IJ'

579 (Tex. Crim. App. 1992)(A trial court must designate all issues requiring future

resolution within thirty-five days after the filing of a petition for habeas corpus in

order to retain its jurisdiction over the case.); See also Tex. Code Crim. P. art. 11.07

§3(c), (d). Specifically, the Court may wish to order an affidavit from Applicant's

plea counsel, Hon. Jay Caballero, addressing Applicant's allegations and the alleged

·deficient conduct.

Applicant's application should be DESIGNATED for future resolution.

V. CONCLUSION

Wherefore, premises considered, the State prays that this Court ORDER an

affidavit from Hon. Jay Caballero responding to Applicant's allegations that his plea "

was involuntary due to ineffective assistance of counsel and DESIGNATE

Applicant's application for future resolution.

Respectfully submitteq,

SHAREN WILSON Criminal District Attorney Tarrant County

Andrea Jacobs, Assistant 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 rp.ailed to Applicant, Mr. Joel Aguirre,

TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas

75886 on the 25th day of June, 2015.

Andrea Jacobs

CERTIFICATE OF COMPLIANCE

I certify that the total number of words in this State's Response is 1060 words

as determined by Microsoft Office Word2010.

Andrea Jacobs

. /