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Tr..ct. Nn. m03-25657-u(A)v h mR~B1,972;04
Ex PARTE §- IN THE cnuRT nF cRIMINAL § APPEALS UF TEXAS BnBBv DREm AUTRY AT AusTIN, TEXAS
suPPLl-:MENT'AL' -ADDENnuM Tn' RECE,VED'N THE'nRIsINAu mRIT nF HABEAS canugoURTOFCRMMNALAPPEALS
DEC 1 6 2015
TU THE HUNURABLE BDURT BF APQEALS:
BDMES NUM, BDBBY DREM AUTRV, the applicant hen§@@LAe@§mféh§§ ` ’ .
this supplemental addendum to the original writ of habeas corpus. This supplemental addendum is made because the original writ of habeas corpus contains points in support of Ineffective Assist- ance of Eounsel and a "No Evidence" conviction, and mould show th- is Honorable Eourt through further investigation the record would reflect that the judgment herein is void. I The State makes clear that the applicant brought up only one (1) ineffective assistance of counsel issue. That was failing to address the Eourt of the applicant's mental history. The applica- nt's counsel failed in many other areas as uell. These issues we- re not available to the applicant previously due to him not being educated in the practice of lam and is a "pro se" litigant. Upon `further review of the documents the applicant has been able to ob- -tain it has became clear of the following: l The petitioner/applicant asserts that he was denied the effe- ctive assistance of counsel in that counsel failed to object to the State's use of the judicial confession. He failed to moti-, on to suppress the applicant's claimed confession.
He failed to investigate the applicant's mental history. He failed to request a psych evaluation, competency hearing, or
a presentence investigation. Bouchillon v. Eollins, 907 F.2d EBQ(CA 5 1990)[omitted.] The applicant's attorney has a duty to investigate all lines of a defense. Strickland[.] He failed to inform the applicant of his privilege against compulsory self-incrimination graranteed by the Fifth Amendment and appli- cable to the States by way of the Fourteenth Amendment. He fa- iled to inform the applicant of the State's burden of proof re- sponsibility. He failed to advise the applicant of the advant- ages and/or disadvantages of pleading guilty or going to trial. He failed to discuss the options available to the'applicant.
He failed to inform the applicant of his absolute right to con- _front his accuser's. `He failed to support his own Umnibus Pre- trial Motion in which there was a request for a sub rosa heari- ng to determine the admisability of any confessions. He failed to examine any Grand'Jury testimony of the alleged victim. iTh- ere was no Grand Jury testimony from any alleged victim]. He failed to object when the State informed the Eourt that the wi- tnesses had recanted. He failed to motion for a directed verd- ict of not guilty when the recantations were learned of. He failed to inform the applicant of his right to withdraw when the recantations were learned of. He simply failed to challen- ge the State's case at all. He merely entered a "pro forma" appearance. Fisher v§ Gibson, 282 F.Bd~1283(CA-1D 2002)[.]
He failed to impeach the State's witnesses. He failed to moti- on for a "live hearing" to determine credibility when the reca-
ntations were made clear.
fIn cases involving a recantation by a complainant or a witness, "counsel should request a "live hearing" because credibility is always a key issue. The importance of a trial Court's finding on credibility is amply demonstrated by the`Bourt's brief opin- ion granting relief in; Ex Parte Harmon, 116 S.U.Zd 77B(Tex.. Erim. App. 2002),`in Harmon, theyapplicant alleged that he was actually innocent as demonstrated by the complainant's affidav- it in which she stated that her trial testimony was false. II
The State held no supporting evidence for the judicial co- nfession. The State had no relevant evidence other than the judicial confession. MA no evidence conviction is cognizable in a writ of habeas corpus, however, a claim of no evidence is only cognizable where there is no evidentiary support for the conviction. 5ee; Ex Parte Parales, 215 S.U.Ed 418, h19-20(Tex. Crim. App. 2007), and with the recantations there is no suppor- ting evidence. Therefore the State's assumption that they held evidentiary support for the conviction is in error. lt is a Eonstitutional error to admit evidence that is "totally without relevance." See; Nelson v. Brown, 673 F.Supp.Zd 95(2009). The due process clause of the XIV Amendment to the U.B. Constituti- on requires every State criminal conviction to be supported by evidence that a rational trier of fact could accept as suffici- ent to prove all of the elements of the offense charged beyond a reasonable doubt. [Recantations Raise Doubt]], See; Jackson v. Uirgina, hh§ U.S. 391, 99 S.Et. 27B1; In Re winship 397 U. S. 358, 90 S.Ct. 1968(1970); Sanders v. State, 119 S.M.Bd 818
(Tex. Crim. App. 2003). The Jackson standard states that the
applicant's due process rights are.violated when the applicant is convicted on insufficient evidence because "the most elemen- tal of due_process rights is freedom from a wholly arbitrary deprivation of liberty." Jackson at 319. Each element of the offense must be proven beyond a reasonable doubt for the evide- nce to be sufficient. See; Ealton V. State, 176 S.U.Zd 231, 233(Tex. Crim. App. 2005). The reporter's record reflects that the judicial confession is the "signed written" confession of the applicant. This is error. The applicant did not write any statements or confessions. Erin HUdge develnped this judicial confession on a computer even before the indictment was issued. Tex. Eode Erim. Proc. Art. 38.22 sec. 2. For purposes of dete- rmining, under the due process clause of the Federal Eonstitut- ion's Fourteenth Amendment, whether a State criminal defendants confession has been coerced. (15 a finding of coercion need not depend upon actual violence by a government agent; (2) a credi- ble threat is sufficient; (3) coercion can be mental as well as physical; and_(h) the blood of the accused is not the only hal- lmark of an unconstitutional inquistion. See; Arizona v; Fulmi- nante (1991) 499 u.s. 279; 113 L;Ed.zd 302, 1991 us LEXIS 1354, S.Et. 1246. The applicant was on heavy doses of psychotropic medications during this hearing, Medications prescribed by the ' Mental Health Staff of Parkland Jail Health, contracted by the Eounty of Dallas. A State's failure to follow its own law is a violation of Federal due process; United States Eonst. Amend.
XIV; Hicks v. oklahoma, uuv u.s. 343(1990).
III.
Under Texas Code of Eriminal Procedure, Article 11.U7, appli- cation for writ of habeas corpus to the Court of Eriminal Appeals Instructions, 6. states that you must include all grounds for rel- ief on the application, 17. states If your grounds and brief sum- mary of the_facts have not been presented on the form application, the Eourt will not consider your grounds. The applicant's ground number four (4) states that he received a ten (10) year probation. During this hearing he did receive a ten (1U) year probation for cause numbers ij-25713-U(A) and UUZ*2571L-U(A) or which he has filed previously in this Honorable Court. This ground is on the applicantion pursuant to the rules. The applicant's current judg- ment restraining his liberty is void. ’Becoming so on or before January 25, 2008. The writ of habeas corpus is the_fundamental instrument for safe-guarding individual freedom against arbitrary and lawless State action. See; Harris v. Nelson, 394 U.S. 286, 22 L.Ed.2d 281, 89 S.Ct. 1082(1969).
Procedural Due Process:
Basically, we think of‘procedural due process in terms of "n-
otice," and the opportunity for a "full and fair hearing."
Procedural due process also means the opportunity to be heard
by an unbiased judicial platformr In the area of criminal
law, when the government seeks to deprive the person of his liberty, we afford the greatest procedural safeguards to ens-
ure a fair trial. See; Morrissey v. Brewer, ADB U.S. LBL; 32
L.Ed.2d hBh, 92 S.Et. 2539, 2600(1972).
Substantive Due Process: Historically, the guarantee of substantive due process was
meant to secure the individual from the arbitrary exercise of
powers of government. See; Daniels v. williams, h74 U.S. 332
106 S.Ctr 662, 665 BB L.Ed.2d 662(1986). "It concerns the
deliberate decision of government officials to deprive a per-
son of life, liberty, or property.~ The term "liberty" used in the Fourteenth Amendment is not defined in the text." Yet the concept of substantive due process is rooted in the term
"liberty.F Personal liberty is more than actual physical re-
straint and includes the concept of "fundamental rights" from
arbitrary deprivation by state governments.
Under both Procedural Due Process, and Substantive Due Proce- ss, the applicant's individual rights to freedom from arbitrary action were violated deliberately and knowingly. This is Ufficial Misconduct. Tex. Eode Crim. Proc. Art. 3.04 sec. (1).
when the applicant was restrained, (rearrested), January 25, 2000 without being taken before a magistrate is Eonstitutional er- ror. "Failure to take accused before magistrate promptly follow- ing his warrantless arrest as required by State Law rises to the level of Eonstitutional Error." See; whitaker v. Estelle, 96 S. Et. 140, 509 F.2d 19A(EA 5th Tex. 1975); T.E.B.P. Art. 1#.06. See also applicant's "written'Ubjection" dated January 25, 2008.
IV
'Cognizable claims on State habeas actions are limited to cla- ims of "Jurisdictional or Fundamental defects and Constitutional claims."` See; Ex Parte Graves, 70 5.w.3d 103(Tex. Erim. App. 2002 ). A claim of denial of counsel may be based on an assertion of
either an actual denial or a constructive denial occuring at a
critical stage. Denial of counsel at any critical stage of the proceedings entitles the writ applicant to relief. Ex Parte Sand- ers, 508 5.w.2d SBZ(Tex. Erim. App. 1979). A motion to revoke probation is considered a critical stage in Texas. See;'Ex Parte Richardson, 496-5.w.2d 611(Tex. Erim. App. 1973). when the Court
ordered the applicant to remain in jail on January 25, 2008, with
ma modification of his original plea bargain agreement and a modif-
ication of his probation conditions it was a breach of contract. 5ee; U.S. V. Garcia, 606 F.3d'209(CA 5 2010), "Plea bargain agr- eements are contractual in nature and are to be construed accordi- ngly." They bind the parties,'and more importantly, the Eourt, too, is bound "once it accepts the plea agreement." Id at 215. See also; "Modified Eonditions of Probation" and original "Condit- ions of Probation."
This case went before the Honorable Rick Magnis and was issu- ed an "order designating issues" on August 14, 2014. This is aft- er he recused himself from the case for being to personally invols ved. See;'Urder to transfer case dated April 23, 2010.
V
0n direct appeal the appellate attorney did not investigate the revocations from January 2000 or from the revocations from De- cember 2009 through November 2010. Failure to investigate. The outcome would have been a dismisal due to the void judgment. See; Autry v. State, N0. 05-11-00217--0021B-CR, 2012 Tex. App. LEXIS
h242(Tex.`App.--Dallas May 29, 2012, no pet.).
EDNBLUSIUN
If it appears that the applicant is detained or held under`a warrant of commitment which is void, he shall be discharged. The applicant did not waive the right to confront, or the preparation of a presentence investigation report (PSI).` Art. 1.15, Tex. Eode Erim. Proc. does not apply to the punishment phase. The applicant did not waive his right to confront, or cross-examine his accusers
"The right of confrontation and cross-examination is a signif- icant constitutional right, just like the right to remain silent." The Supreme Eourt has held that a waiver of the privilege against self-incrimination pursuant to a guilty plea does not waive the privilege at sentencing. See; Mitchell V. United States, 526 U,S. 314(1999). Right to confront. Bee; Erawford v. washington, 541 u.s. 36, uz(zuoa); also Puinter v. Texas, 330 u.s. hon, 403(1965).
The State, by and through her Assistant District Attorney, Erin Hodge, stated during the "off the record" break in the record, from the hearing on April 13, 200&, that the alleged victims / wi- tnesses had recanted and maintained that they wrote no statements against the applicant. This is exculpatory evidence. T.C.E.P. 2. 01, and 0fficial Misconduct T.E.E.P. 3.0#(1).
The State, by and through the Honorable Rick Magnis, violated
several due process rights, constitutional laws, and Tex. Eode Er-
im. Proc. Art. 1.04, 3.0#, 2.03, 1h.06, 15.17, 26.13, 27.03, 27.08 , 42.12 sec. 10, h2.12 sec. 21,_and h2.12 sec. 22..
ln all matters listed herewithin being true and indisputable,
.available in the record, the applicant should be discharged.
After considering all evidence, (As seen from the indisputab- le record), this Honorable Eourt determines evidence insufficient to support the conviction the remedy is reversal with an order of judgment reformed to reflect acquittal. See; State v§ Morse, 903 5.w.2d 100, 10&(Tex..App.-- El Paso 1995).
To sustain a guilty verdict the evidence must establish same beyond a reasonable doubt and if evidence raises only a suspicion of l¢guilt (even a strong-one), it is insufficient. See; Urbano V. State, 837 8.w.2d 11#, 115-16(Tex. Erim. App. 1992)en banc, reh. den.. A conviction based solely upon lack of relevant evidence results in a Denial of due process of law. 8ee; Alvarado v. State, 912 S.w.2d 199, 206-07(Tex. Crim. App. 1995), wall v. State, h17 8.w.2d 59, 63(Tex. Crim. App. 1967), Banchez v.`State, 32 S.w.3d 687, 781(Tex. App. -San Antonio), reh. den.. In Re winship; 397 U.S. 358, 364(1970). U.S. Const. Amend's. VI and XIV._
In the case at bar, the accusation said he did, the recantat- ion said he did not. Such lack of consistency, believability, and or credibility, and what appears to be fabrication, cannot begin to approach proofs beyond a reasonable doubt and hence, both fact- ually and legally, there was insufficient evidence to sustain the evidentiary support for the judicial confession and the applicant- 's conviction.
In this instant writ there was insufficient evidence which would have led a reasonable jury to conviction since the witness recanted. _This not only deprived the applicant of a verdict based on sufficient evidence, but also deprived him of due process of
law.
PRAVER
wHEREFURE, PREMISES'CUNSIDERED,
the applicant prays that this
Honorable Court grant this leave to file, and to consider the poi- nts raised in this addendum in conjunction with the original writ
of habeas corpus in order that the applicant be afforded his righ- ts of a fair trial,
due process of law and due course of law, as
provided by the Eonstitution of both the United States and Texas,
as well as the Texas Eode of ERiminal Procedure. He requests for
this Honorable Eourt to grant a vacatur of his original plea, and
the opportunity to plead anew, or in the alternative he requests
relief at law and/or in equity, general and/or specific for which
he is justly entitled. HE 50 PRAVS...
g § ]W__
8088Y URHw AUTRV #1701196 McConnell Unit
3001 5.'Emily Dr. Beeville, Texas 78102
bee lq, 3315 we sweet
' Court of Criminal Appeals,
Bobbyaérew Autry #1701196
william G. Mchnnell Unit
3001 8. Emily Drive
8eeville, Texas 78102
INMATE'B DECLARATIUN
I, BDbby Drew Autry, the petitioner herein; being incarcerat-
ed in the Texas Departmedi of Eriminal Justice - ID on the Mchnn-
ell Unit in Beeville, Texas, do hereby state under penalty of per-
jury that the above stated petition is true and correct to the be-
80bb D ew Autry #1701196
ibew l‘i‘ rROLS"
Date Signed: '
st of my knowledge.
CERTIFICATE 0F SERVICE
I, Eobby Drew Autry, the petitioner herein, being duly sworn
above do certify that a true and correct copy of the forgoing pet- ition was placed in the mail system in the McConnell Unit mailbox
in 8eeville, Texas 78102 on the Date Signed 8elow, and served on:
Eourt Clerk - 2915T Judicial District Court, Frank Browley Eourts Building, 133 N. Riverfront Blvd., Dallas, Texas 75207,; and to
Abel Acosta - Eourt Elerk, P.U. Box 12- 308 Eapitol Station,
Austin, Texas 78711,,,
~ ca @wd/
Hobb ew Autry #1701196
barn il`/ j
Date Signed: '
'N