Anaya, David Abran

• Court: Texas Supreme Court
• Decided: March 26, 2015
• Docket: WR-80,336-03
• Status: Published

Opinion

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COURT OF CRIMINAL

EX PARTE

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DAVID ABRAN ANAYA APPEALS, AUSTIN, TX

APPLICANT'S OBJECTIONS TO THE TRIAL COURT'S -> RECOMMENDED DENIAL OF HIS 11.07 HABEAS CORPUS

COMES NOW, applicant, David Anayal and files this objection to the trial court's denial of his ll.O7 Habeas Corpus for the above cause #s. and

in support would show this Honorable Court:

I.

Applicant filed his Writ of Habeas Corpus on January 28th, 2015. On February lSth, 2015, the State filed its answer fm along with an affidavit from his trial attorney Rus Bailey asserting that his Habeas Corpus should` be denied. Applicant responded to the State's answer traversing the merits claiming this Writ Should be granted. For the purposes of this objection Applicant references to the Court his filed response and amplifies some spec- ific points as to his trial coun§£!s ineffectiveness by failing to make a

proper objection to his jury charge.

II. 1. Failure to Properly Object to the Jury Charge

As stated in Applicant's writ application in his supporting facts, trial counsel was ineffective for failing to properly object to the jury 'charge on self defense. Counsel's affidavit reflects that he objected to the jury charge but it was only to the specific point that adding the "phrase" driminal activity should not be allowed because it was "¢onstitutionally vague." The proper objection to the jury instruction was that it did not track the law set forth in Texas Penal Code 9.32(c). It does not say a "person is under a duty to retreat" "unless there is evidence before you;" Counsel was clearly deficient as to the matter as his affidavit and exhibit in respon- se to this matter shows, by informing the court "Your Honorl as to objections-

the charge as it is written tracks the law as it is in the Texas Penal Code"

"

(R.R. Vol 5 pr 155) The jury charge did not track the statutory language and was a comment on the weight of the evidence that should have never went before the jury because of it's prejudicial effect it had on the jury. Al- though Morales v. State 357 SW 3d 6 (TEX.CRIM.APP. 2011) was not decided until after Applicant's trial. The law was in effect as of 2007, two years prior to Applicant's trial. The law concurrent with his trial is clear that a court's charge should track the statutory definition in the penal code, if it does not it is an improper comment on the weight of the evidence and focuses the jury on a specific type of evidence that may support an element of the offense or defense. Davis v. State 313 SW3d 317 (TEX.CRIM.APP. 2010); Brown v. State 122 SW3d 794 (TEX.CRIM.APP. 2003); Geisburg v. State~ 984 SW 2d 245 (TEX.CRIM.APP. 1998); Walters V. State 247 SW 3d (TEX.CRIM.APP. 2007) Walters Id. clearly states that when the legislature modifies the penal code, previous and old laws should not be given in the jury instruction. Prior to 2007 the law allowed the jury to be instructed that a person has a general duty to retreat and after 2007 the law deleted the language of this matter. Walters along with other cases clearly provide precedent that the language in Applicant's jury instruction does not track the provisions in the penal code and it is an improper comment on the weight of the evidence. Because this law is clear that a jurycHIge)should track its statutory defini- tion, and trial counsel mistakenly- “thought the jury chmge did track it/ Applicant received ineffective assistance by him not making a proper objection

on this matter.

III. 2. Full and Fair Hearing

Applicant Prays this Honorable Court will allow him to develope the record in this proceeding with an evidentiary hearing. Trial counsel Rus

Bailey gave incomplete information to his alleged inadequate performance.

~ Specifically when it comes to a plea bargain and failing to advise Applicant

of a mandated duty to retreat,, and not requesting a necessity instruction. With counsel's affidavit the court was left with an inadequate record as to Applicant's appeal in order to make findings of facts and conclusions of law as to this matter. Also appellate counsel rendered ineffective on appeal with the law being clear that the jury instructkn given was an improper comment on the weight of the evidence because it did not track the statutory definition. Appellate counsel should be made to respond to the allegations

of his inadequate performance on appeal. By the trial court conducting an

evidentiary hearing on these specific_ matters it will be able to make a adequaueo findings of facts and conclusions of law that will be sufficient

for this Honorable Court to determine the Granting of this requested relief. WHEREFORE PREMISES CONSIDERED, _Applicant Prays the Honorable Court

Grant this Writ of Habeas Corpus, or in the alternative abate this appeal for an evidentiary hearing.

Respectfully Submitted,

David Abran Anaya 675388 Robertson Unit

12071 FM 3522

Abilene, TX 79601

Inmate's Declaration I, David Abran Anaya, T.D.C.J. NO 1675388, being presently incarcerated at the F.M. Robertson Unit of the Texas Department of Criminal Justice, hereby

declare under penalty of perjury that the foregoing statements of fact are, according to my belief, true and correct.

Executed on this iqh` day of }AARQy\ , 2015,

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David Abran Anaya