Florez, Esteban Huerta

• Court: Court of Appeals of Texas
• Decided: July 8, 2015
• Docket: WR-83,486-01
• Status: Published

Opinion

§§.“W'O\

ESTEBAN H FLOREZ 3060 FM 3514 #1755424 BEAUMONT, TX 77705

ABLE ACoSTA,CLERK

CoURT oF CRIMINAL APPEALS BoX 121308, CAPITOL STATION AUSTIN, TX 78711

RE: w-21¢8734c-i=

Dear Mr. Acosta; (Greetings)

Please find enclosed a copy of Applicant’S Proposed Findings of Fact and Conclusion of Law to be provided to the presiding judge of the above Stated oause.

Sincerely Thankful;

`é)'\~\-\S

Esteban H. Florez(Pro Se)

PECE|VE"D IN

JUL 08 2015

%@M@@§@@,d@w<

NO. W-211873*C-1

EX»PARTE; § IN THE 25isT'DISTRIcT coURT FLoREz,`ssTBBAN HUERTA, § IN AND FOR (Appli¢ant) - § RANDALL couNTY, TEXAS

APPLICANT'S PROPOSED

FINDINGS OF FACT AND CONCLUSIONS OF LAW

.\. \,

On June 2, §015, the applicant filed the instant writ application in Cause No. W-21.873-C-l. In this application, the applicant raised the following three grounds of relief: (l). ineffective assistance of trial counsel- (2) actual innocence. and (3)

ineffective assistance of appellate counsel.

on June 16, 2015, the criminal niscricc Attornéy of Randaii Countv, Texas, filed its State's Answer to Application For Writ of Habeas Corpus, generally denvinq all alleqations contained

in the Application For Writ of Habeas Corpus.

The Court havinq considered the application, Resoodent‘s answer, .testimony of trial counsel, and select official court documents and records in Cause No. 21,873~€, makes the followinq findinqs

of fact and conclusions of law:

PROCEDURAL HISTORY:

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:

6.

_Judicial District Court of`Randall Count

and/or strike veniremembers who revealed

FINDINGS OF FACT

Applicant was indicted for the felony of

assault with a deadly weapon in Cause No

Applicant was represented by Mr. Jack Sw

A jury convicted applicant of aggravated weapon and assessed punishment at 20 yea

a $l0,000.000 fine.

Applicant was represented on direct appe

The Seventh Court of Appeals affirmed ap in an unpublished opinion delivered Janu

Cause No. 07-11-00013-CR.

Applicant alleged that Mr. Jack Swindell

assistance of counsel by: (l) failing to

the applicant and/or towards the State's proof, (2) failing to ask proper guestio to determine whether or not to use perem bias/prejudice, incapable, or unfit veni

to timely object to an inadmissible extr

statement made by a State's witness duri 2.

fense of aggravated . 21,873-€, in the ZSlst

y, Texas.

as trial counsel.

indell,

assault with a deadly

rs imprisonment and

al by E:Ric coATs ;

plicant's conviction

ary 26, 2012, in

provided ineffective challenge for cause bias/prejudice against required burden of

ns during voir dire ptory challenges upon remembers, (3) failing

aneous offense

ng direct examination,

lO.

ll.

(4) refusing to allow the applicant to testify on his own behalf when applicant requested to do so, and (5) failing

to investigate/interview witnesses for defense purposes. (Applicantls Writ Application, p.6-7); (Applicant's Memorandum,

9.8-36)

Mr. Swindell provided a sworn affidavit addressing each of Applicant's claims of ineffective assistance of counsel.

State's Answer, Exhibit-3.

THE COURT FINDS Mr. Swindell not credible in regards to his responses to applicant's claims of ineffective assistance

of counsel.

THE COURT FINDS, in regards to veniremembers, DUGGAN and SHARP, Mr. Swindell explained the applying law of the State's_ burden of having to find applicant guilty beyond a reasonable doubt, and both, DUGGAN and SHARP stated clearly that they would still convict applicant on a lesser burden of proof, the

"clear and convincing evidence" standard-

THE COURT FINDS, Mr. Swindell did not challenge for cause, or strike veniremembers DUGGAN and SHARP based upon their inability to follow the required law pretaining to the State's burden

of proof.

THE coURT FINDS, although Mr. swindell had used all his peremptory strikes, he did not request from the court additional strikes to be used against DUGGAN, SHARP, or Mr. THAXTON,

who also demonstrated bias/prejudice against applicant. The

Court would had granted such.reguests.

3_,

12.

13.

14.

15.

16.

17.

THE coURT'FINDS, Mrj Swindell, upon asking Mr. THAxToN if it would make a difference (judging the evidence fairly) if he knew in advance that the applicant had been through

the system before, Mr. Thaxton answered, "probably."_

THE COURT FINDS, Mr. Swindell did not challenge for cause and/or strike Mr. Thaxton for his bias and/or prejudice

opinion or beliefs, which clearly revealed his opinions or

, beliefs would prevent or substantially impair nis ability

to carry out his oath and instruction to not prejudge applicant based on any prior offenses applicant may have committed,

in accordance with the law.

THE COURT FINDS, although Ms. Donna Garcia testified during

direct examination that she knew of a previous time when

applicant had assaulted the complainanty Ms. Monica Gomez,

Mr. Swindell did not object to such statement being a prejudicial,

inadmissible extraneous offense.

THE COURT FINDS, based upon Mr. Swindell's own admission, the complainant, Ms. Monica Gomez, nor Ms. Sharon Spakes,

were never interviewed by Mr. Swindell prior to trial.

THE COURT FINDS, based upon applicant‘s credible affidavit, Mr. Swindell was informed of the exculpatory facts known by Ms. Spakes, but still failed to interview and/or call

her as a defense witness.

THE COURT FINDS, based upon applicant's credible affidavit,

Mr. Swindell refused to allow applicant to testify in order

4.

18.

19.

20.

21.

22.

to substantiate his self defense claim, even though applicant knew the consequences of him testifying, but still requested

to do so.

THE COURT FINDS, although Mr. Swindell raised a self-defense theory before the jury/ he failed to provide any bases for . the court to grant his request for self-defense instructions

to the jury by failing to allow applicant to testify.

THE COURT FINDS, although the prosecutor mentioned the`punishment range to the veniremembers during voir dire, the prosecutor,

nor Mr. Swindell, or the court ever asked if any veniremembers

could consider the full range of punishment.

THE COURT FINDS, although the prosecutor mentioned applicant’s right not to testify, to the veniremembers, the prosecutor, nor Mr. Swindell, or the court asked whether any veniremembers

would hold applicant's decision not to testify against him:

THE COURT FINDS, Mr. Swindell did not ask any veniremembers whether they would consider a police officer's testimony more credible than any other witness due to their status

as a police officer.

THE COURT FINDS, the veniremembers were not provided an opportunity to voice their views regarding whether, (l)

they could consider the full range of punishment, (2) they would not hold against applicant if he chose not to testify, and (3) they would consider an officer's testimony more credible due to his status as an officer. The veniremembers

were not asked to respond, or voice their opinion in regards

_ to these three guestions. 5{

APPbICANT’S ACTUAL INNOCENCE CLAIM

23.

24.

25.

26.

THE COURT FINDS, prior to trial, Ms- Gomez provided Mr. Swindell's investigator with a sworn written affidavit

asserting that, due to being extremely intoxicated on the

night of the alleged assault, she did not remember what actually

happened or how she received her injuries.

THE COURT FINDS, during trial, however, Ms. Gomez testified that her sworm written statement was false, and that she

had lied to keep applicant from getting into trouble.

THE COURT FINDS, Ms. Gomez testified that applicant had held her down on the living room couch with a knife to her stomach

and neck.

THE COURT FINDS, the testimonies of Ms. Gomez, officer Daniel Smithy and officer Ruben Coronadon version of events conflict within each other, whereas, officer Smith claimed to have witnessed applicant pushing Ms. Gomez over the back offa

couch with one arm on her chest, while holding a knife in

his right hand, and officer Coronadon claimed to have witnessed applicant holding Ms. Gomez.up against the front door, while holding a knife in his right hand against the back of Ms. Gomez's head. Both officers claimed to have witnessed their version of events during the same time period, standing next

to each other.

27,

28.

29.

30.

THE COURT FINDS, although evidence' was presented during trial that indicated Ms. Gomez suffered injuries to her face, nose, and head, she also testified that during her attempt to jump out of their moving vehicle, applicant reached over frantically and grabbed her hair, pulling her back into the vehicle. lt was indicated there is*a reasonable probability

Ms. Gomez's injuries occurred from applicant saving her life.

THE coURT FINDS, although Ms. Donna Garcia testified she had witnessed applicant and Ms.-Gomez struggling and fighting from her kitchen window, Ms. Garcia did not state she witnessed

any knife in applicant's hand.'

THE COURT FlNDS; after trial¢ Ms. Gomez provided applicant's appellate attorney with another sworn written affidavit similiar in content to her first affidavit, except in her

second affidavit she asserted that applicant had taken a

' knife away from her during the period of time when the police

officers arrived on the scene and witnessed the incident

through the living room window.

THE COURT FINDS, the second and last affidavit provided by Ms. Gomez to be credible and considered as newly discovered evidence due to reason it was stated for the first time, within the second affidavit, that applicant had taken the

knife away from Ms. Gomez for self defense purposes_ The

jury was not provided with this exculpatory evidence._

31. THE COURT FINDS, during the submission

32.

INEFE`ECTIVE ASSISTANCE OE` APPELLA'I'E COUNSEL

33-

34.

35.

36-

.for new trial raising an actual innocen

_the police arrived.

of applicant's application

for writ of habeas corpus, he also submitted his Memorandum

in support thereof, providing his voluntary affidavit aS

Exhibit-A. Applicant's affidavit was not sworn to, nor signed

and dated.

THB COURT FINDS, applicant filed a Moti

Record with a sworn to, signed and dated affidavit,

is identical to his original affidavlt. his motion and supplemented the records

signed and dated affidavit, which the C

THE COURT FINDS, applicant was represen

by ERlc coATs .

THE COURT FINDS, appellate counsel file

to Ms. Gomez's post-trial written state could not remember what actually occurr question do to her being extremely into

applicant was trying to take the knife

THE COURT FINDS, this court had no juri the untimely filed motion for new trial

not granting review and/or an evidentia

THB COURT FINDS, had a timely motion fo

to the trial court, raising an actual i

8.

on to Supplement the which The Court granted with his sworn to,

ourt holds credible.

ted on direct appeal

d an untimely motion ce claim in regards ment, asserting she ed on the night in but believes

xicated,

away from her when

sdiction to entertain and did not err by

ry hearing.

r new trial been presented

inocence claim based

l. The claims asserted by applicant pretai

on Ms.

VIRGIL V. DRETKE, 446 F.3d 598 (Sth Cir

Gomez's post-trial affidavitl t granted a requested evidentiary hearir

whereas, Ms. Gomez's post-trial affida

discovered facts which were not preser Ms. Gomez's pretrial affidavit. Namely had taken the knife away from her at t on the scene. Such self-defense assert

during the trial on the merits.

CONCLUSIONS OF LAW

assistance of trial counsel for failure

or strike veniremembers, DUGGAN, SHARP,

be reviewed by the standards enunciated

466 U.S. 648 (1984), whereaS/

state's case to a meaningful adversary

In the alternative, even if applicant's

assistance of counsel for failure to ch

strike veniremembers DUGGAN, SHARP, and

by the standards enunicated in STRICKLA

U.S. 668 (1984), which requires a revie whether trial counsel's representation: objective standard of reasonableness: a applicant was prejudiced by trial couns representation} prejudice is presummed

to object to the sitting of at least th

UNITED STATES V. MARINEZ-SABAZORL 528 U

9.

counsel f

he court would had g/review of said motion, vit asserted newly

ted at trial, or in

, she believed applicant he time police arrived

ions were not presented

ning to ineffective to challenge for cause and/or THAXTON, must

in U.S. V. CRONIC,

ailed to subject the

testing process.

claim of ineffective allenge for cause and/or or THAXTON, is reviewed ND V. WASHINGTON, 466 wing court to determine (i) fell below an

nd, if so, (ii) whether al‘s deficient

for counsel's failure ree bias jurors.

.S. 305 (ZOOO);

. 2006): and

GARCIA V. STATE, 919 S.W.Zd 370, 389 (Te {The 6th amendment guarantees criminal d 'by an impartial jury. The bias or prejud juror is endugh to violate that guarante presence of a biased juror cannot be har

requires a new trial without a showing o

THE COURT FINDS, based upon Mr. Swindell

he explained to veniremembers, DUGGAN an was required to prove each and every elem offense beyond a reasonable doubtl howey

they would still find applicant guilty o

of proof, by "clear and convincing evide

he was required to challenge for causes but failed to do s

DUGGAN and MS. SHARP/

jurors expressed their opinions or belie

x.Crim.App..lQQ€) efendants a verdict ice of even a single e. Accordinglv, the The error

mless-

f actual prejudice)

's own admission,

d SHARP that the state ent of the charged

er. both jurors stated n the lesser burden

ice."

's own admissionl and/or strike Mr. D, even after both

fs, preventing and/or

substantially impairing them from carring out their oaths

and instructions in accordance with the

THB-COURT FINDS, for the above stated re rendered ineffective assistance and'prej

Thus, a new trial should be granted.

Deficient representation, alone, does no

assistance of counsel under STRICKLAND, supra.,

Law.

asonl Mr. Swindell

ldice is presumed.

t constitute ineffective

and to prevail

an applicant must also demonstrate prejudice by showing a

reasonable probability that, but for counsel's errors,

the

result of the trial proceedings would have been different.

To prevail on a post-conviction writ of applicant bears the burden of proving, k ot the evidence, not only that his trial

was deficient,

‘habeas corpus, the y a preponderance

counsel's performance

but that there is a reasonable probability

that the outcome of the trial and/or appellate proceeding

would nave been different had trial cour not been oeticient. Ex PARTE cHANDLER, J

(Tex.Crim-App. 2005).

sel's performance

82 S.W.$d 350, 353

Applicant has clearly shown deficient and prejudicial performance

based on the following ineffective assistance of trial and/or

appellate counsel:

Trial counsel failed to challenge for ca

veniremembers; DUGGAN, SHARP, and THAXTC

prejudice against applicant and/or towar

use and/or strike N, who revealed bias/_

ds the State's required

burden of proof, which the defense is entitled to rely upon;

Trial counsel failed to ask proper quest

dire to determine use of peremptory cha]

prejudicial,

incapable and/or unfit venl

ions during voir lenges upon bias/

remembers;

Trial counsel failed to make a timely and proper objection

to inadmissible extraneous offense statement made by a state

witness, Ms. Donna Garcia;

Trial counsel failed to allow applicant

own behalf, despite applicant's request

to testify on his

to do so;

e. Trial counsel failed to investigate and/or interview witnesses

f.

10. THE coURT F;NDS and REcoMMENDs, appliea

THEREFORE IT IS THE ORDER OF THIS COURT THAT:

a.

C.

Appellate counsel failed to timely file

`for new trial.

-record of this court1

`That the preparation of these matters be

for defense and/or mitigating purposes;

THE COURT FINDS, applicant has clearly s

that trial and/or were not engaged in reasonable trial str

of the court stated above.

6th and 14th amendment right to effecti\

and that his conviction was unlawfully c

and foregoing reasons, applicant should

custody of Randall County, Texas, Sherif

the allegations of the charged offense,

a meaningful motion

hown, based upon the appellate counsel§

ategy by the findings

nt was denied his

e assistance of counsel >btained. For the above be released into the

f Department to answer

either by a new trial,

or an order of acquittal due to his actual innocence claim,

The Clerk of the Court certify all pleadings and affidavits

and supporting transcripts filed in this matter and prepare

a record for forwarding to the Clerk of

Appeals;

That the Official Court Reporter of the

the Court of Criminal

Court prepare a record’

of the proceedings in this matter for forwarding to the Clerk

of the Court of Criminal Appeals, and

9 at COUDCY @XQGHSG.

lt is considered recommendation of this court that applicant's

request for relief be in all things GRANTEJ.

£).» cl b.(1 0 |_.`. b l C l y_ Ll'l o

Signed on this

Presiding Judge ZSlst District Court

Randall County, Texas.