Jessie Burks #1785904 Telford Unit
3899 State Hwy 98
Néw Boston, Texas 75570
March 21, 2015
HONORABLE Abel Acosta,
Clerk of The Court
Court of Criminal Appeals, Capitol Station P.O. BOX 12308
Austin, Texas 78711
HONORABLE CLERK,
Enclosed is a true and correct copy of Applicantis Object- ion to The State'S Proposed Conclusions_ef Law, which was mail to the Trial Court on March 12, 2015. Applicant re- quest that the Objection to The State's Ptoposed Comclusion of Law, be filed with the Court Of Criminal Appeals, Capitol
of Texas.
Thanking you in advance for yourhtime.addicoopenation.
RECE|VED |N couRT oF chMlNALAPPEALs
MAR 25 2015
33 sie Burks
Abel Acosta, Clerk
cAUsE No. 114-0107-12-A
Ex PARTE § IN THE DISTRICT coUNTY §
§ _ oF §
§
JESSIE BURKS SMITH COUNTY, TEXAS
APPLICANT‘S OBJECTION TO THE STATE'S PROPOSED CONCLUSIONS OF LAW
The State filed a motion asking the Court to sign a judgment based on the original answer of the State in response to Ap- plicant's grounds of relief in a Memorandum submitted in sup- port of an Application for Writ of Habeas Corpus 11.07. Ap- plicant attaches to this Objection Argument and Authorities to the State's Broposed Judgment.
Jessie Burks#1785904 Telford Unit ' 3899 State Hwy 98
New Boston, Tx. 75570
TO THE HONORABLE JUDGE OF THE SAID COURT:
COMES NOW Jessie Burks, Applicant in the`present Writ of Ha- beas Corpus, respectfully object to the Proposed Judgment of the State. The State's Proposed Judgment misapplies the Law to the facts as followed:
I.
In the State's Counterpoint #1, the State claims that the re- cord does not support that Applicant's trial attorney (Brent Ra- tekin) was ineffective or that Applicant was harmed as a result. This is absolutely contrary to what the record reflects, in Mr. Ratekin's Affidavit he clearly admits that he did not file a dis -covery motion, nor any pretrial motions on defensive issues. Mr . Ratekin states that the Court covers those issues pertaining to discovery, pretrial motions, evidence and Brady materials, which suggest that Mr. Ratekin did not perform an independent investigation of the facts of his client's case, but instead simply went along with the facts as represented by the District 'Attorney's Office. Mr. Ratekin claims that he spoke with the alleged victim on numerous occassions prior to trial, and that the alleged victim stated that the offense did not happen and that she was the aggressor, not the Applicant. Mr. Ratekin also claims in his Affidavit that there were not any discrepancies in between the indictment and the evidence presented at trial, other than the alleged victim testifying that she was not as- saulted by the Applicant. Furthermore, the State did not present sent any pictures, video footage or medical records indicatsng
ing that an assault actually took place. Mr. Ratekin's repre-
sentation fell below prevailing professional norms for coun- sel's failure to put on an accurate defense when the State's case was largely circumstantial, which made the adversarial testing process unreliable. Kimmelmann v Morrison, 477 U.S. 365,385(1986); Argersinger v Hamlin, 407 U.S. 25,31-32(1972). Counsel's representation was deficient and so lacking in tact- ical or strategic decision making as to overcome the presump- tion that counsel's conduct was reasonable and professional. Under the circumstances disclosed, Applicant was not accorded the right of effective counsel in any substantial sense, to decide otherwise, would simply be to ignore actualities. Po-
The State claims that the second ground of ineffective assistance of counsel for failing to present “potentially com- pelling" mitigating evidence is unsupported by the record and the Law. This is contrary to the evidence that the State in-
cluded with its response, also the State Second Notice of In-
tent to Offer Evidence, which is the Applicant's TDCJ Discipli`
-nary History Record. Indeed, this TDCJ Disciplinary Record re
-veals a pattern of behavior, which demonstrates mental illness
-s. If Mr. Ratekin actually did investigate and interview the alleged victim he would have been informed of this mental dis- order by the alleged victim, as she stated in a letter written to the Applicant (see Exhibit - M attached to the Original-Ob- jection sent to the Trial Courtj. This information was given to Mr. Ratekin prior to trial, if Mr. Ratekin's interest was
to defend the Applicant he would have inquired or considered
ex
` strategic alternative tactics for the benefit of his client. Its counsel's duty to represent and defend his client during all phases of trial especially the sentencing phase. Wiggins
v Smith, 539 U.S. 510,534-38(2003)(but for counsel's failure to confront the jury with "considerable" mitigating evidence of the defendant's "life history", there was reasonable pro- bability that it would have returned with a different sent- _ence); Rompilla v Beard, 545 U.S. 374,390-93(2005)(but for counselfs failure to examine defendant's prior conviction dur- ing investigation of mitigating evidence, jury's verdict might have been different);~Harries v Bell, 417 F.3d 631,639-42(6th Cir.2005)(but for counsel's failure to present mitigating evi- dence of defendant's mental health, there was reasonable pro-
bability that sentence would have been different).
II.
In the State's Counterpoint #2, the State claims that the Applicant's Appeal Attorney (Austin Jackson) did argue and raise a ground on Insufficient Evidence on direct Appeal. This couldn't be further from the true, as Mr. Jackson's Brief re- veals. In Appellate Counsel's Brief Mr. Jackson is specifical- ly arguing that the evidence is Legally Insufficient to sup- port the prior conviction alleged for Enhancement Purposes. Mr. Jackson is arguing in his Brief that the Prior Conviction Evidence is Legally Insufficient to support an Enhancement. Mr. Jackson did iszarguingathaththeppniormgenvictionsgof assn saultnare invalid, which is frivolous. Mr. Jackson did not
raise a ground challenging the legal sufficiency of the evi-
dence presented at trial pertaining to the assault of the al- leged victim in this case on Direct Appeal. However, in this case at tzial the prosecutor presented no pictures or photo- graph, no video footage, no medical records or hospital docu- ments indicating or showing proof of an assaulted, battered
or bruised victim (no evidence of Bodily Injury). Counsel was ineffective for filing a Brief on a frivolous issue when non- frivolous issues existed for Appeal. Lombard v Lynaugh, 868 F .2d 1475(5th Cir.1989); Evitts v Lucey, 469 U.S. 387,83 L.Ed. 2d 821(1985). Moreover, Mr.
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Jessie Burks #1785904 Telford Unit
3899 State Hwy 98
Néw Boston, Texas 75570
March 21, 2015
HONORABLE Abel Acosta,
Clerk of The Court
Court of Criminal Appeals, Capitol Station P.O. BOX 12308
Austin, Texas 78711
HONORABLE CLERK,
Enclosed is a true and correct copy of Applicantis Object- ion to The State'S Proposed Conclusions_ef Law, which was mail to the Trial Court on March 12, 2015. Applicant re- quest that the Objection to The State's Ptoposed Comclusion of Law, be filed with the Court Of Criminal Appeals, Capitol
of Texas.
Thanking you in advance for yourhtime.addicoopenation.
RECE|VED |N couRT oF chMlNALAPPEALs
MAR 25 2015
33 sie Burks
Abel Acosta, Clerk
cAUsE No. 114-0107-12-A
Ex PARTE § IN THE DISTRICT coUNTY §
§ _ oF §
§
JESSIE BURKS SMITH COUNTY, TEXAS
APPLICANT‘S OBJECTION TO THE STATE'S PROPOSED CONCLUSIONS OF LAW
The State filed a motion asking the Court to sign a judgment based on the original answer of the State in response to Ap- plicant's grounds of relief in a Memorandum submitted in sup- port of an Application for Writ of Habeas Corpus 11.07. Ap- plicant attaches to this Objection Argument and Authorities to the State's Broposed Judgment.
Jessie Burks#1785904 Telford Unit ' 3899 State Hwy 98
New Boston, Tx. 75570
TO THE HONORABLE JUDGE OF THE SAID COURT:
COMES NOW Jessie Burks, Applicant in the`present Writ of Ha- beas Corpus, respectfully object to the Proposed Judgment of the State. The State's Proposed Judgment misapplies the Law to the facts as followed:
I.
In the State's Counterpoint #1, the State claims that the re- cord does not support that Applicant's trial attorney (Brent Ra- tekin) was ineffective or that Applicant was harmed as a result. This is absolutely contrary to what the record reflects, in Mr. Ratekin's Affidavit he clearly admits that he did not file a dis -covery motion, nor any pretrial motions on defensive issues. Mr . Ratekin states that the Court covers those issues pertaining to discovery, pretrial motions, evidence and Brady materials, which suggest that Mr. Ratekin did not perform an independent investigation of the facts of his client's case, but instead simply went along with the facts as represented by the District 'Attorney's Office. Mr. Ratekin claims that he spoke with the alleged victim on numerous occassions prior to trial, and that the alleged victim stated that the offense did not happen and that she was the aggressor, not the Applicant. Mr. Ratekin also claims in his Affidavit that there were not any discrepancies in between the indictment and the evidence presented at trial, other than the alleged victim testifying that she was not as- saulted by the Applicant. Furthermore, the State did not present sent any pictures, video footage or medical records indicatsng
ing that an assault actually took place. Mr. Ratekin's repre-
sentation fell below prevailing professional norms for coun- sel's failure to put on an accurate defense when the State's case was largely circumstantial, which made the adversarial testing process unreliable. Kimmelmann v Morrison, 477 U.S. 365,385(1986); Argersinger v Hamlin, 407 U.S. 25,31-32(1972). Counsel's representation was deficient and so lacking in tact- ical or strategic decision making as to overcome the presump- tion that counsel's conduct was reasonable and professional. Under the circumstances disclosed, Applicant was not accorded the right of effective counsel in any substantial sense, to decide otherwise, would simply be to ignore actualities. Po-
The State claims that the second ground of ineffective assistance of counsel for failing to present “potentially com- pelling" mitigating evidence is unsupported by the record and the Law. This is contrary to the evidence that the State in-
cluded with its response, also the State Second Notice of In-
tent to Offer Evidence, which is the Applicant's TDCJ Discipli`
-nary History Record. Indeed, this TDCJ Disciplinary Record re
-veals a pattern of behavior, which demonstrates mental illness
-s. If Mr. Ratekin actually did investigate and interview the alleged victim he would have been informed of this mental dis- order by the alleged victim, as she stated in a letter written to the Applicant (see Exhibit - M attached to the Original-Ob- jection sent to the Trial Courtj. This information was given to Mr. Ratekin prior to trial, if Mr. Ratekin's interest was
to defend the Applicant he would have inquired or considered
ex
` strategic alternative tactics for the benefit of his client. Its counsel's duty to represent and defend his client during all phases of trial especially the sentencing phase. Wiggins
v Smith, 539 U.S. 510,534-38(2003)(but for counsel's failure to confront the jury with "considerable" mitigating evidence of the defendant's "life history", there was reasonable pro- bability that it would have returned with a different sent- _ence); Rompilla v Beard, 545 U.S. 374,390-93(2005)(but for counselfs failure to examine defendant's prior conviction dur- ing investigation of mitigating evidence, jury's verdict might have been different);~Harries v Bell, 417 F.3d 631,639-42(6th Cir.2005)(but for counsel's failure to present mitigating evi- dence of defendant's mental health, there was reasonable pro-
bability that sentence would have been different).
II.
In the State's Counterpoint #2, the State claims that the Applicant's Appeal Attorney (Austin Jackson) did argue and raise a ground on Insufficient Evidence on direct Appeal. This couldn't be further from the true, as Mr. Jackson's Brief re- veals. In Appellate Counsel's Brief Mr. Jackson is specifical- ly arguing that the evidence is Legally Insufficient to sup- port the prior conviction alleged for Enhancement Purposes. Mr. Jackson is arguing in his Brief that the Prior Conviction Evidence is Legally Insufficient to support an Enhancement. Mr. Jackson did iszarguingathaththeppniormgenvictionsgof assn saultnare invalid, which is frivolous. Mr. Jackson did not
raise a ground challenging the legal sufficiency of the evi-
dence presented at trial pertaining to the assault of the al- leged victim in this case on Direct Appeal. However, in this case at tzial the prosecutor presented no pictures or photo- graph, no video footage, no medical records or hospital docu- ments indicating or showing proof of an assaulted, battered
or bruised victim (no evidence of Bodily Injury). Counsel was ineffective for filing a Brief on a frivolous issue when non- frivolous issues existed for Appeal. Lombard v Lynaugh, 868 F .2d 1475(5th Cir.1989); Evitts v Lucey, 469 U.S. 387,83 L.Ed. 2d 821(1985). Moreover, Mr. Jackson submitted deceptive Affi- davit in an attempt to deceive the Court in to thinking that he raised and argued on appeal the sufficiency of evidence supporting Applicant's conviction, when in fact he did not, but he did in fact raise a frivolous ground arguing the suf- ficiency of the evidence of Applicant's prior convictions of Assault wemecinvalid, for the purpose of enhancement, when Ap- plicant has clearly been conviction of assault on previous oc- casion. Delgado v Lewis, 223 F.3d 976, 980-82(9th Cir.ZOOO)( counsel'ssfailure to raise any arguable issues in appellate brief was ineffective assistance); Jiminez v State, 953 S.W.
2d 293,296-97(Tex.App. Austin 1997, PET. Ref'D).
III.
In the State's Counterpoint #3, the State claims that Ap- plicant's fourth ground is unsupported by the Law. However, the factual content of the evidence is unsupportive of the~ conviction, because there is no evidence in this case? Hef-
fernan v Norris, 48 F.3d 331(8th Cir.1995)(Habeas petitioner
may excuse procedural bar and abuse of writ by showing cause and prejudice or actual innocence); Frey v Schuetzle, 78 F,
3d 359(8th Cir. 1996). The Applicant's confinement violates the constitution of the United States to the level of a funda- mental defect which inherently results in a complete miscarri- age of justice and is inconsistent with rudimentary demands of fair procedure which are cognizable issues. The record is whol- ly devoid of any evidentary support to sustain the conviction, the prior conviction evidence is inadmissible to prove the contested issue. Someone convicted of crime in a Court of Law without any evidence to support the same, but is convicted solely on prior convictions of a similiar crime is a violation of due process. The Fifth Amendment to the United States Con- Stitution guarantees that no one will be.deprived of liberty without que process of law." United States v Gaudin, 515 U.St 510,115 S.Ct. 2310(1995); McDaniel v Brown, 130 S.Ct.6279(1979 ). Unreliable and misleading evidence violates due process
rights.
The State claims that the Fifth ground of Prosecutorial Mi§- conduct is not established through citation to the record or _the law and alleges that no character evidence was presented on the Applicant during trial. The State must have this case sadly mistaking with another, because not only did the prose- cutor include the bad character evidence with his response, but also during trialland closing arguments. Not only that, but the trial attorney in his Affidavit stated that:the pro~
secutor had to prove that the Applicant had been convicted of
family violence family violence previously and the conviction for family violence was included in the indictment. But the prosecutor was supposed to prove the offense that the Appli- cant was being tried for, all of this bad character evidence was turned over to defense counsel prior to trial, with the States intent to offer into evidence during trial. The same tactic that the State is using in its response is the same tactieswhich was used throughout the entire trial to sustain va conviction. A fundamental rule of evidence is that a de- fendant's bad character cannot be used to argue that the de- fendant committed the crime for which he issbeingttriéd,nor had the propensity to commit that crime. Therefore, the pro- secutor should prosecute with earnestness and vigor, but may not use improper methods calculated to produce a wrongful conviction. The prosecutors'?actionseoffmiseonducttinmthiss case so infected the trial with fairness as to make the re- sulting conviction a denial of due process. Berger v U.S., 295 U.S. 78,88(1935); U.S. v Williams, 343 F.3d 423,437(5th
Cir.2003).
IV. CONCLUSION: Wherefore, premises considered, the Applicant that the Court find that there are controverted, previously unresolved facts material to the legality of Applicant's confinement, that there is a necessity for a fact-finding hearing as there is ample evidence in the record for the Court to rule on the relief sought, that the Court enter Findings
of Factsand Conclusions of Law, and recommend to the Court
of Criminal Appeals that this writ application be granted.
Respectfully submitted,
eéwéM/@
_ @sie Burks#1785904 Telford Unit 3899 State Hwy 98 New Boston, Tx. 75570
CERTIFICATE OF SERVICE
I Jessie Burksy Applicant hereby certify that a copy of the Objection to the State's Proposed Judgment for writ of ha- beas corpus was served by U.S. Mail, on March 12, 2015, to the Dlstrict Attorney's Office 100 N. Broadway, 4th Fl., Ty-
ler, Texas 75702.
§Lw nw
%sie Burks, Applicant