RECEIVED IN WR-80,957-02 COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS August 21, 2014 Transmitted 8/20/2014 4:57:27 PM Accepted 8/21/2014 9:06:58 AM ABEL ACOSTA ABELACOSTA, CLERK No. WR-80,957-02 CLERK
IN THE COURT OF CRIMINAL APPEALS
) Ex parte Andres EnriqueCantu, ) TC#CR-730-09-C(l) ) 139th District Court Applicant ) Hidalgo County, Texas )
MOTION FOR REHEARING and RECONSIDERATION
To the Honorable Court of Criminal Appeals:
Now comes the Applicant and moves the Court to set aside the judgment of
dismissal rendered and entered herein on the 20th day of August, 2014, and grant a
rehearing of this cause, for the following reasons, to wit: the dismissal was the result
of a legal error. Applicant states that the name of the opposing counsel in this cause
is Luis Gonzalez, whose office is at the 100 N. Closner Blvd., Edinburg, Hidalgo
County, Texas 78539.
Argument and authorities in support ofthis Motion for Rehearing are attached
hereto and made a part hereof.
M6fION DENIED
ELECTRONIC RECORD Respectfully Submitted,
Margaret Schmucker Attorney for Defendant Texas Bar No. 24030874
Law Office of Margaret Schmucker 2301 S. Lakeline Blvd., Suite 800-53 Cedar Park, Texas 78613
Phone:(512)236-1590 Fax: (877) 465-7066 E-Mail: M.Schmucker@AppellateCourtLaw.com
CERTIFICATE OF SERVICE
I, Margaret Schmucker, attorney ofrecord for Applicant Andres Enrique Cantu
hereby certify that a true and correct copy ofthis motion and the motion for rehearing
and reconsideration together with written arguments and authorities attached thereto
have been delivered to the opposing party, Michael Morris, by posting, certified mail,
to his address, 100 Closner Blvd., Edinburg, Texas, 78539, this the 21st day of
August, 2014. Respectfully Submitted,
iLu/l^&cJwuoA&l^ Margaret Schmucker Attorney for Defendant ARGUMENT AND AUTHORITIES ON MOTION FOR REHEARING
Argument
The Court incorrectly held that multiples grounds have been raised on a
single page in violation of Texas Rule of Appellate Procedure 73.1.1
Authorities
It is well-settled "that the writ of habeas corpus should not be used to
litigate matters which should have been raised on direct appeal." Ex parte
Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998), quoting Ex parte
Goodman, 816 S.W.2d 383,385 (Tex. Crim. App. 1991); seeExparte Groves, 571
1 Texas Rule of Appellate Procedure 73.1 provides in relevant part:
73.1. Form of Application in Felony Case (other than Capital) (a) Prescribed Form. An application for post conviction habeas corpus relief in a felony case without a death penalty, under Code of Criminal Procedure article 11.07, must be made in the form prescribed by the Court of Criminal Appeals in an order entered for that purpose.
Cantu filed his Writ Application in 2012. At that time, the September 1, 2012, version of the Writ Application was the most current. The preliminary instructions on that form stated:
(17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use page 10 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. S.W.2d 888,890 (Tex. Crim. App. 1978) (habeas corpus does not lie as a substitute
for an appeal).2 Thus, claims involving a violation of procedural statutes cannot
be asserted via habeas corpus. Ex Parte Banks, 769 S.W.2d 539, 540 (Tex. Crim.
App. 1989) ("[traditionally, habeas corpus is available only to review
jurisdictional defects ... or denials of fundamental or constitutional rights.")
(citations omitted). Indeed, even a constitutional claim is forfeited ifthe applicant
had the opportunity to raise the issue on appeal. Ex parte Gardner, 959 S.W.2d at
191.
That said, an ineffective assistance of trial or appellate counsel claim is
judged under the familiar two-pronged Strickland standard which requires proof
of (1) deficient performance by counsel and (2) prejudice to the substantial rights
of the defendant. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct.
2052 (1984); Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App.
2001). See also U.S. Const. Amend. VI; Texas Constitution, Art. 1 § 10.
In order to satisfy the "deficient performance" prong of the
Strickland standard it is thus necessary to allege and prove the existence of some
2Although Exparte Gonzales, 667 S.W.2d 932, 935 (Tex. App. 1984), purports to acknowledge and exception to this rule where double jeopardy is raised, this exception does not seem to apply where the double jeopardy defect could have been raised on direct appeal but was not. Exparte Gardner, 959 S.W.2d at 191 (even constitutional claims can be defaulted). underlying error of arguable or colorable merit apparent on the face of the record
which was not asserted by trial counsel, or cognizable on direct appeal but not
raised by appellate counsel. Cf. Hooks v. Roberts, 780 F.2d 1196 (5th Cir. 1973),
cert, denied, 414 U.S. 1163 (1974) (to prove ineffective assistance of appellate
counsel habeas applicant must show the existence of trial errors with arguable or
colorable merit); Exparte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009)
(applicant proves ineffective assistance of appellate counsel if he demonstrates
that defaulted claim has "indisputable merit under well-settled law and would
necessarily result in reversible error").
Applicant's writ form thus properly alleged meritorious constitutional
claims which should have been raised at trial and then on direct appeal but were
not as a necessary part ofhis ineffective assistance ofcounsel claims and not as
"multiple grounds" improperly "raised on a single page." For example, Ground
Three alleges ineffective assistance of counsel for failing to assert a meritorious
due process claim arising out ofthe District Court's violation ofa state procedural
rule during sentencing, i.e. Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1) and (d),
which could have been reviewed on direct appeal had it been properly preserved
by objection and might now be deemed forfeit as an independent claim in state
habeas proceedings. Ex Parte Banks, 769 S.W.2d at 540. Ground Four alleges ineffective assistance ofcounsel for failing to assert a meritorious double jeopardy
claim arising out ofdeficient jury instructions which allowed for a non-unanimous
jury verdict which Could have been reviewed on direct appeal even without proper
objection, see Fergerson v. State, 09-04-391 CR, 2006 WL 2075199 (Tex. App.
July 26, 2006) (citing Almanza v.
Free access — add to your briefcase to read the full text and ask questions with AI
RECEIVED IN WR-80,957-02 COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS August 21, 2014 Transmitted 8/20/2014 4:57:27 PM Accepted 8/21/2014 9:06:58 AM ABEL ACOSTA ABELACOSTA, CLERK No. WR-80,957-02 CLERK
IN THE COURT OF CRIMINAL APPEALS
) Ex parte Andres EnriqueCantu, ) TC#CR-730-09-C(l) ) 139th District Court Applicant ) Hidalgo County, Texas )
MOTION FOR REHEARING and RECONSIDERATION
To the Honorable Court of Criminal Appeals:
Now comes the Applicant and moves the Court to set aside the judgment of
dismissal rendered and entered herein on the 20th day of August, 2014, and grant a
rehearing of this cause, for the following reasons, to wit: the dismissal was the result
of a legal error. Applicant states that the name of the opposing counsel in this cause
is Luis Gonzalez, whose office is at the 100 N. Closner Blvd., Edinburg, Hidalgo
County, Texas 78539.
Argument and authorities in support ofthis Motion for Rehearing are attached
hereto and made a part hereof.
M6fION DENIED
ELECTRONIC RECORD Respectfully Submitted,
Margaret Schmucker Attorney for Defendant Texas Bar No. 24030874
Law Office of Margaret Schmucker 2301 S. Lakeline Blvd., Suite 800-53 Cedar Park, Texas 78613
Phone:(512)236-1590 Fax: (877) 465-7066 E-Mail: M.Schmucker@AppellateCourtLaw.com
CERTIFICATE OF SERVICE
I, Margaret Schmucker, attorney ofrecord for Applicant Andres Enrique Cantu
hereby certify that a true and correct copy ofthis motion and the motion for rehearing
and reconsideration together with written arguments and authorities attached thereto
have been delivered to the opposing party, Michael Morris, by posting, certified mail,
to his address, 100 Closner Blvd., Edinburg, Texas, 78539, this the 21st day of
August, 2014. Respectfully Submitted,
iLu/l^&cJwuoA&l^ Margaret Schmucker Attorney for Defendant ARGUMENT AND AUTHORITIES ON MOTION FOR REHEARING
Argument
The Court incorrectly held that multiples grounds have been raised on a
single page in violation of Texas Rule of Appellate Procedure 73.1.1
Authorities
It is well-settled "that the writ of habeas corpus should not be used to
litigate matters which should have been raised on direct appeal." Ex parte
Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998), quoting Ex parte
Goodman, 816 S.W.2d 383,385 (Tex. Crim. App. 1991); seeExparte Groves, 571
1 Texas Rule of Appellate Procedure 73.1 provides in relevant part:
73.1. Form of Application in Felony Case (other than Capital) (a) Prescribed Form. An application for post conviction habeas corpus relief in a felony case without a death penalty, under Code of Criminal Procedure article 11.07, must be made in the form prescribed by the Court of Criminal Appeals in an order entered for that purpose.
Cantu filed his Writ Application in 2012. At that time, the September 1, 2012, version of the Writ Application was the most current. The preliminary instructions on that form stated:
(17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use page 10 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. S.W.2d 888,890 (Tex. Crim. App. 1978) (habeas corpus does not lie as a substitute
for an appeal).2 Thus, claims involving a violation of procedural statutes cannot
be asserted via habeas corpus. Ex Parte Banks, 769 S.W.2d 539, 540 (Tex. Crim.
App. 1989) ("[traditionally, habeas corpus is available only to review
jurisdictional defects ... or denials of fundamental or constitutional rights.")
(citations omitted). Indeed, even a constitutional claim is forfeited ifthe applicant
had the opportunity to raise the issue on appeal. Ex parte Gardner, 959 S.W.2d at
191.
That said, an ineffective assistance of trial or appellate counsel claim is
judged under the familiar two-pronged Strickland standard which requires proof
of (1) deficient performance by counsel and (2) prejudice to the substantial rights
of the defendant. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct.
2052 (1984); Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App.
2001). See also U.S. Const. Amend. VI; Texas Constitution, Art. 1 § 10.
In order to satisfy the "deficient performance" prong of the
Strickland standard it is thus necessary to allege and prove the existence of some
2Although Exparte Gonzales, 667 S.W.2d 932, 935 (Tex. App. 1984), purports to acknowledge and exception to this rule where double jeopardy is raised, this exception does not seem to apply where the double jeopardy defect could have been raised on direct appeal but was not. Exparte Gardner, 959 S.W.2d at 191 (even constitutional claims can be defaulted). underlying error of arguable or colorable merit apparent on the face of the record
which was not asserted by trial counsel, or cognizable on direct appeal but not
raised by appellate counsel. Cf. Hooks v. Roberts, 780 F.2d 1196 (5th Cir. 1973),
cert, denied, 414 U.S. 1163 (1974) (to prove ineffective assistance of appellate
counsel habeas applicant must show the existence of trial errors with arguable or
colorable merit); Exparte Miller, 330 S.W.3d 610, 624 (Tex. Crim. App. 2009)
(applicant proves ineffective assistance of appellate counsel if he demonstrates
that defaulted claim has "indisputable merit under well-settled law and would
necessarily result in reversible error").
Applicant's writ form thus properly alleged meritorious constitutional
claims which should have been raised at trial and then on direct appeal but were
not as a necessary part ofhis ineffective assistance ofcounsel claims and not as
"multiple grounds" improperly "raised on a single page." For example, Ground
Three alleges ineffective assistance of counsel for failing to assert a meritorious
due process claim arising out ofthe District Court's violation ofa state procedural
rule during sentencing, i.e. Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1) and (d),
which could have been reviewed on direct appeal had it been properly preserved
by objection and might now be deemed forfeit as an independent claim in state
habeas proceedings. Ex Parte Banks, 769 S.W.2d at 540. Ground Four alleges ineffective assistance ofcounsel for failing to assert a meritorious double jeopardy
claim arising out ofdeficient jury instructions which allowed for a non-unanimous
jury verdict which Could have been reviewed on direct appeal even without proper
objection, see Fergerson v. State, 09-04-391 CR, 2006 WL 2075199 (Tex. App.
July 26, 2006) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)
(op. on reh'g) and Exparte Smith, 185 S.W.3d 455 (Tex. Crim. App. 2006) for the
proposition that failure to object to jury charge error does not forfeit appellate
review but does raise the standard of review), and might now be deemed forfeit
as an independent claim in state habeas proceedings.3 Ex parte Gardner, 959
S.W.2datl91.
Because Cantu's ineffective assistance of counsel claims required him to
plead and prove both the existence and legal merit of underlying trial error as a
3 The procedural history of the underlying substantive claim is especially relevant here. On direct appeal Cantu's appellate counsel raised the following point of error: The trial court committed reversible error in submitting the charge to the jury without including separate unanimity instructions in the application paragraphs as to counts one and two. Appellant's Brief at 41-45. The "unanimity" at issue in the appeal was unanimity as to the same, single, specific criminal act. The Court of Appeals overruled the error. Memorandum Opinion at 12-14. In a post-opinion motion for rehearing and reconsideration en banc, new appellate counsel argued that the complained-ofjury instructions improperly allowed the jury to consider the allegations/ evidence regarding both victims for both counts which resulted in double jeopardy violations and allowed for the possibility of a non-unanimous jury verdict. The Court of Appeals refused to consider the unassigned charge error based on violations of the prohibitions against double jeopardy and a non-unanimous jury verdict and denied the petition for rehearing and reconsideration en banc. part of those claims the Court ofCriminal Appeals incorrectly held that Cantu had
raised "multiple grounds" on a single page in violation ofTexas Rule of Appellate
Procedure 73.1. If counsel amends Cantu's writ application to separate the
substantive underlying claims from the ineffective assistance ofcounsel claims as
the dismissal order tacitly suggests should be done, he risks having the substantive
underlying claims denied as forfeited without making a decision on the merits, and
the ineffective assistance of appellate counsel claims in turn be denied for failure
to prove the merits of the forfeited claims. The net effect of such a procedure
would mean that, Cantu could never present his claims in a format sufficiently
satisfactory to this Court to get his ineffective assistance of counsel claims
considered and decided in this Court or in the federal courts on the merits.
Conclusion and Prayer
Applicant respectfully, prays that this motion for rehearing or
reconsideration be granted, the original opinion be withdrawn and the case be
considered and decided on the merits taking into consideration Applicant's timely
filed objections to the District Courts Findings of Fact and Conclusions of Law. Respectfully Submitted,
Wgaret Schmucker Attorney for Defendant Texas Bar No. 24030874
Law Office of Margaret Schmucker 2301 S. Lakeline Blvd., Suite 800-53 Cedar Park, Texas 78613
Phone:(512)236-1590 Fax: (877) 465-7066 E-Mail: M.Schmucker@AppellateCourtLaw.com
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4
This document is not specifically subject to a type-volume limitation imposed by
TRAP 9.4(1). Nevertheless, counsel advises that it contains 1,359 words. This
document has been prepared in a proportionally spaced computer generated
typeface using Times New Roman in 14 point Roman type for the body of the
document and 12 point Roman type for the footnotes.
Respectfully Submitted,
Mar£ [araarsF Schmucker Attorkey for Defendant August 20, 2014