Gonzales, Jose Iii
Opinion
IN THE (
COURT OF CRIMINAL APPEALS
OF TEXAS
JOSE GONZALES 111, Petitioner/
THE STATE OF TEXSS/ Appellee.
COURT OF CRIMINALappeals PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS AUG 05 2015
THIRTEENTH DISTRICT OF TEXAS Abe) Acosta, Clerk
CAUSE NO. 13-13-00011-CR.
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
PAGE NO TABLE OF CONTENTS I.
INDEX OF AUTHORITIES II-IV.
STATEMENT REGARDING ORAL ARGUMENT Vo
STATEMENT OF THE CASE . o - . . VI .
STATEMENT REGARDING PROCEDURAL HISTORY.. VII.
GROUNDS FOR REVIEW • - VIII-I3i>:
ARGUMENTS AND AUTHORITIES 1-16.
CONCLUSION 16.
PRAYER FOR RELIEF. «... - 16.
CERTIFICATE OF SERVICE 16.
APPENDIX... end.
I. IINDEX OF AUTHORITIES
TEXAS CASE: PAGE NO. BELL Mr. STATE, 356 S.W.3d:528. ... 1.
DRAKE v.hSTATE, 686 S.W.2a 935,944 7. ERVlM:ivu; STATE, 991 S.W.2d 804,814 3. EX PARTE CASTILLO, 432 S,W.3d 457.... • ...4,5. EX PARTE CAVAZOS, 203 S=W.3d 333 4,5. EX PARTE DUFFY, 607 S.W.2d 507 16 = EX PARTE RATHNELL, 717 S.W.2d 33,36 .-5. GIRDY V. STATE, 213 S.W.3d 315,319 3. GARCIA V. STATE, 919 S.W.2d 370,381... . 2.
HOLLY V.STATE/ 469 S.W.2d 136,137...... 7. LACY V. STATE, 160 TEX.CRIM.9599261773 .W.2d 139^141 7. MENDOZA y. STATE, 1 S.W.3d 829 . . . 1. PHILLIPS V. STATE, 787 S.W.2a 391-95 5. RUSSEL V. STATE, 146 S.W.Sd 705,714..,.........^. 11. VAUGHN v.SSTATE, 239 S.W.3d 351 4. VON BYRD V. STATE, 569 S.W.2d 883,890-91.. ... 11. WILLIAMS V. STATE, 897 S.W.2d 351, CERT.DENIED 516 U.S. 946... 9-10. YGLESIAS V. STSTB/: 252 S.W.3d 733S(HDfii®E^^iREP'D 1. CRAWFORD V. STATE, 685 S.W.2d 343,349-50 ..x....,ll. LANDERS V. STATE, 957 S.W.2d 558r560... 5. FEDERAL CASES:
MAYOLA V. ALABAMA, 623 F.2d 992,998. (5TH CIR.1980) 11. U.S. V. DURHAM, 287 F.3D 1297,1304 (llTH CIR.2002). 2.
SUPREME COURT CASES:
BENTON V . •iHARYLAND , 395 U.S. 784 3. BLOCKBURGER V. U.S., 284 U.S. 294 3. BROWN V.OOHIO, 432 U.S. 161 3. FARETTA V. CALIFORNIA, 422 U.S. 806,821 .... 12. GRADY V. CORBIN, 495 U.S. 299 3- ILLINIOS V. VITALE, U.S. 410 3. STRICKLAND, 466 U.S. 688 ...............6,7,8,12,16 TRAVINO V. THALER/ 569 U.S.^ (2013). 16. UNITED STATES V. CRONIC, 466 AT? 656-57 . 12. U.S. V. DIXON/ 509 U.S. 688 3.
II. AUTHORITIES CONT:
PAGE NO^
TEXAS CONSTITUTION:
TEX.CONST. ARTICLE 1 § 14 3.
UNITED STATES CONSTITUTION:
U.S.C.A. CONST, amend 5 ......... 3, U,S.C.A. CONST. AMEND 6 1/2,6/8,12, 11/13.
U.S.C.A. (pClNST. AMEND 3j4 ......................................X,2/6,8,12, 11/13.
TEXAS STATUTES:
V.T.C.A. PENALCOODE § 19.03 (a)(2) ...4,7. V.T.C.A. PENAL CODE § 30.02(a)(2) ..4, V.T.e.A. PENAL CODE § 22.02 5. V.T.C.A. PENALCOODE § 8.01 13,14,15. V.T.C.A. PENAL CODE § 3.04 (a) 7. FAMILY CODE § 71.003 5. FAMILY CODE § 71.0021 (b) ....5. EAMILY CODE § 71.005 (b) 5. TITLE 7 PENAL CODE 7. TITLE 5 PENALCOODE .,..7.
V.T.C.C.P. ART.l.lOd) . . 3^ V.T.C.C.P. ART.1,14 8. V.T.C.C.P. ART.21.24. . . 5^7^ V.T.C.C.P. ART.31.01.. .....11. V.T.C.C.P-AART.31.03(a) .9. V.T.C.C.P. ART.42.12 (d)(8)(c)... 12. V.T.C.C.P. ART.46.03. . . 14. CRIMINAL LAW;
CRIMINALILaW KEYNOTE-144 4. CRIMINAL LAW KEYNOTS!620 . ( 3 ) . CRIMINAL LAW KEYNOTE-641.13 ( 2) 7. CRIMINAL LAW KEYNOTE-637 . 2 CRIMINAL LAW KEYNOTE-773 13. INDICTMENT AND INFORMATION KEYNOTE-127 INDICTMENT AND INFORMATION KEYNOTE-129(1) 6. OTHER STATUTES:
V.T.C.A. PENAL CODE § 3.01(a) .7.
III. AUTHORITIES CONT:
PAGE NO.
88 P.A.291 (1879) .16,
IV. STATEMENT REGARDING ORAL ARGUMENT
EETITIONER URGES THE COURT TO ALLOW ORAL ARGUMENT FOR THE FOLLOWING
REASONS; TO WIT:
petitioner's claim of double jeopardy is based on the Gavazos casg 203 S.W-3d 333 (Tex.Grim-App.2006) and the Castillo case that the State cited in its brief: Ex parte Castillo/ 432 S.W.3d 433 (Tex.App. -San Antonio 2014/no pet-h-). Furthermore/ this error is an error whether objected to or not. Petitioner briefed said error in his Pro/se brief which the 13th Court of Appeals failed to adjudicate oniits merits. Because their is a misjoinder issue in multiple count indictment Petitioner needs futher redress from the Court of Appeals to address said grounds. Also because the, record was fully developed before the Court Petitioner claimed ineffective assistance of counsels on both direct appeal as well as trial attorneys. Fetitoner should be given the full adjudication of ineffective assistance of counsel as outlined in Trevino v. Thaler/569 U.S. (2013). Furthermore/ Petitioner urges the Court for oral argument that Petitioner's attorney on direct appeal filed Anders brief and motion to withdraw/ the Court assigned Stephen W. Byrne as attorney who filed motion to withdraw based on ill-health and no Ander's brief. Because he was the attorney of record the 13th Court of appeals was in error and abused their discretion by ruling on Anders brief filed by attorney Fred Jiminez whom was no longer Petitoner's attorney of record and such Anders brief filed was moot by operation of law. Because the remainder of the errors are based on ineffective assistance of counsel Petitioner urges the Court to allow oral argument.
V. STATEMENT OF THE CASE
on December 12/ 2011 Jose Gonzales III, hereinstyled Petitioner was
charged with Capital Murder in the course of. committting a Burglary
of a Habitation of one Leslie Morin/ by shooting Leslie Morin with
a firearm. In Count 11/ Petitioner was charged with Burglary of a
Habitation on or about December 12/2011 in Nueces County/ Texas-
There and then Intentionally and knowingly enter a habitation with
out the effective consent of Vida,l Rodriguez who had greater right
to said property/ and attempt to commit or committed the felony
offense of Aggravated Assault with a Deadly Weapon.
Petitioner was employed as a Alice police officer in the City of
Alice/ Texas on the:: day of the offense- In a high profile trial
Petitioner was convicted on both counts by a biased and highly ^
prejudiced jury-
The court sentenced Petitioner to life with out parole on count 1/
and life with parole on count II. Wherein said convictions are constu-
tionally infirm- The trial was overwhelmed by the media, and public
pressure. Change of venue was warranted.
VI- STATEMENT REGARDING PROCEDURAL HISTORY
Petitoner was charged by indictment with one count of :Capital murder during the course of committing a burglary of a habitation, and one count of burglary of a habitation with the intent to commit aggravated assault or a felony. A, jury convicted him of both offenses as alleged in the indictment on December 6/ 2012. The Court assessed punishment at life without the possibility of parole for the Capital Murder charge and life in the Institutional Division of the Texas department of Criminal Justice-CID for the Burglary of a habitation charge- The Petitioner filed notice of appeal on December 10, 2012.
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IN THE (
COURT OF CRIMINAL APPEALS
OF TEXAS
JOSE GONZALES 111, Petitioner/
THE STATE OF TEXSS/ Appellee.
COURT OF CRIMINALappeals PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS AUG 05 2015
THIRTEENTH DISTRICT OF TEXAS Abe) Acosta, Clerk
CAUSE NO. 13-13-00011-CR.
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
PAGE NO TABLE OF CONTENTS I.
INDEX OF AUTHORITIES II-IV.
STATEMENT REGARDING ORAL ARGUMENT Vo
STATEMENT OF THE CASE . o - . . VI .
STATEMENT REGARDING PROCEDURAL HISTORY.. VII.
GROUNDS FOR REVIEW • - VIII-I3i>:
ARGUMENTS AND AUTHORITIES 1-16.
CONCLUSION 16.
PRAYER FOR RELIEF. «... - 16.
CERTIFICATE OF SERVICE 16.
APPENDIX... end.
I. IINDEX OF AUTHORITIES
TEXAS CASE: PAGE NO. BELL Mr. STATE, 356 S.W.3d:528. ... 1.
DRAKE v.hSTATE, 686 S.W.2a 935,944 7. ERVlM:ivu; STATE, 991 S.W.2d 804,814 3. EX PARTE CASTILLO, 432 S,W.3d 457.... • ...4,5. EX PARTE CAVAZOS, 203 S=W.3d 333 4,5. EX PARTE DUFFY, 607 S.W.2d 507 16 = EX PARTE RATHNELL, 717 S.W.2d 33,36 .-5. GIRDY V. STATE, 213 S.W.3d 315,319 3. GARCIA V. STATE, 919 S.W.2d 370,381... . 2.
HOLLY V.STATE/ 469 S.W.2d 136,137...... 7. LACY V. STATE, 160 TEX.CRIM.9599261773 .W.2d 139^141 7. MENDOZA y. STATE, 1 S.W.3d 829 . . . 1. PHILLIPS V. STATE, 787 S.W.2a 391-95 5. RUSSEL V. STATE, 146 S.W.Sd 705,714..,.........^. 11. VAUGHN v.SSTATE, 239 S.W.3d 351 4. VON BYRD V. STATE, 569 S.W.2d 883,890-91.. ... 11. WILLIAMS V. STATE, 897 S.W.2d 351, CERT.DENIED 516 U.S. 946... 9-10. YGLESIAS V. STSTB/: 252 S.W.3d 733S(HDfii®E^^iREP'D 1. CRAWFORD V. STATE, 685 S.W.2d 343,349-50 ..x....,ll. LANDERS V. STATE, 957 S.W.2d 558r560... 5. FEDERAL CASES:
MAYOLA V. ALABAMA, 623 F.2d 992,998. (5TH CIR.1980) 11. U.S. V. DURHAM, 287 F.3D 1297,1304 (llTH CIR.2002). 2.
SUPREME COURT CASES:
BENTON V . •iHARYLAND , 395 U.S. 784 3. BLOCKBURGER V. U.S., 284 U.S. 294 3. BROWN V.OOHIO, 432 U.S. 161 3. FARETTA V. CALIFORNIA, 422 U.S. 806,821 .... 12. GRADY V. CORBIN, 495 U.S. 299 3- ILLINIOS V. VITALE, U.S. 410 3. STRICKLAND, 466 U.S. 688 ...............6,7,8,12,16 TRAVINO V. THALER/ 569 U.S.^ (2013). 16. UNITED STATES V. CRONIC, 466 AT? 656-57 . 12. U.S. V. DIXON/ 509 U.S. 688 3.
II. AUTHORITIES CONT:
PAGE NO^
TEXAS CONSTITUTION:
TEX.CONST. ARTICLE 1 § 14 3.
UNITED STATES CONSTITUTION:
U.S.C.A. CONST, amend 5 ......... 3, U,S.C.A. CONST. AMEND 6 1/2,6/8,12, 11/13.
U.S.C.A. (pClNST. AMEND 3j4 ......................................X,2/6,8,12, 11/13.
TEXAS STATUTES:
V.T.C.A. PENALCOODE § 19.03 (a)(2) ...4,7. V.T.C.A. PENAL CODE § 30.02(a)(2) ..4, V.T.e.A. PENAL CODE § 22.02 5. V.T.C.A. PENALCOODE § 8.01 13,14,15. V.T.C.A. PENAL CODE § 3.04 (a) 7. FAMILY CODE § 71.003 5. FAMILY CODE § 71.0021 (b) ....5. EAMILY CODE § 71.005 (b) 5. TITLE 7 PENAL CODE 7. TITLE 5 PENALCOODE .,..7.
V.T.C.C.P. ART.l.lOd) . . 3^ V.T.C.C.P. ART.1,14 8. V.T.C.C.P. ART.21.24. . . 5^7^ V.T.C.C.P. ART.31.01.. .....11. V.T.C.C.P-AART.31.03(a) .9. V.T.C.C.P. ART.42.12 (d)(8)(c)... 12. V.T.C.C.P. ART.46.03. . . 14. CRIMINAL LAW;
CRIMINALILaW KEYNOTE-144 4. CRIMINAL LAW KEYNOTS!620 . ( 3 ) . CRIMINAL LAW KEYNOTE-641.13 ( 2) 7. CRIMINAL LAW KEYNOTE-637 . 2 CRIMINAL LAW KEYNOTE-773 13. INDICTMENT AND INFORMATION KEYNOTE-127 INDICTMENT AND INFORMATION KEYNOTE-129(1) 6. OTHER STATUTES:
V.T.C.A. PENAL CODE § 3.01(a) .7.
III. AUTHORITIES CONT:
PAGE NO.
88 P.A.291 (1879) .16,
IV. STATEMENT REGARDING ORAL ARGUMENT
EETITIONER URGES THE COURT TO ALLOW ORAL ARGUMENT FOR THE FOLLOWING
REASONS; TO WIT:
petitioner's claim of double jeopardy is based on the Gavazos casg 203 S.W-3d 333 (Tex.Grim-App.2006) and the Castillo case that the State cited in its brief: Ex parte Castillo/ 432 S.W.3d 433 (Tex.App. -San Antonio 2014/no pet-h-). Furthermore/ this error is an error whether objected to or not. Petitioner briefed said error in his Pro/se brief which the 13th Court of Appeals failed to adjudicate oniits merits. Because their is a misjoinder issue in multiple count indictment Petitioner needs futher redress from the Court of Appeals to address said grounds. Also because the, record was fully developed before the Court Petitioner claimed ineffective assistance of counsels on both direct appeal as well as trial attorneys. Fetitoner should be given the full adjudication of ineffective assistance of counsel as outlined in Trevino v. Thaler/569 U.S. (2013). Furthermore/ Petitioner urges the Court for oral argument that Petitioner's attorney on direct appeal filed Anders brief and motion to withdraw/ the Court assigned Stephen W. Byrne as attorney who filed motion to withdraw based on ill-health and no Ander's brief. Because he was the attorney of record the 13th Court of appeals was in error and abused their discretion by ruling on Anders brief filed by attorney Fred Jiminez whom was no longer Petitoner's attorney of record and such Anders brief filed was moot by operation of law. Because the remainder of the errors are based on ineffective assistance of counsel Petitioner urges the Court to allow oral argument.
V. STATEMENT OF THE CASE
on December 12/ 2011 Jose Gonzales III, hereinstyled Petitioner was
charged with Capital Murder in the course of. committting a Burglary
of a Habitation of one Leslie Morin/ by shooting Leslie Morin with
a firearm. In Count 11/ Petitioner was charged with Burglary of a
Habitation on or about December 12/2011 in Nueces County/ Texas-
There and then Intentionally and knowingly enter a habitation with
out the effective consent of Vida,l Rodriguez who had greater right
to said property/ and attempt to commit or committed the felony
offense of Aggravated Assault with a Deadly Weapon.
Petitioner was employed as a Alice police officer in the City of
Alice/ Texas on the:: day of the offense- In a high profile trial
Petitioner was convicted on both counts by a biased and highly ^
prejudiced jury-
The court sentenced Petitioner to life with out parole on count 1/
and life with parole on count II. Wherein said convictions are constu-
tionally infirm- The trial was overwhelmed by the media, and public
pressure. Change of venue was warranted.
VI- STATEMENT REGARDING PROCEDURAL HISTORY
Petitoner was charged by indictment with one count of :Capital murder during the course of committing a burglary of a habitation, and one count of burglary of a habitation with the intent to commit aggravated assault or a felony. A, jury convicted him of both offenses as alleged in the indictment on December 6/ 2012. The Court assessed punishment at life without the possibility of parole for the Capital Murder charge and life in the Institutional Division of the Texas department of Criminal Justice-CID for the Burglary of a habitation charge- The Petitioner filed notice of appeal on December 10, 2012. Petitioner's attorney of record Fred Jiminez filed an Anders brief on July 18, 2013. On July 24, 2013 Attorney Fred Jiminez filed a motion to withdraw as attorney. On August 16, 2013 the trial court appointed Stephen W. Byrne to represent Petitoner. On September 8^ 2013 Stephen W. Byrne filed motion to withdraw citing ill-health and requested the court to appoint new counsel. No Anders brief was filed and no new attorney was appointed. Petitioner filed a motion in the 13th Court of Appeals for trial record. Petitioner filed his Pro/se brief on May 23, 2014, along with request for oral argument. Furthermore, Petitioner filed a motion in the 13th Court of appeals for his trial attorney to produce the psychological report generated from his court ordered evaluation. Such report was never, made part of the record- The State was ordered to file their brief. The case was due for submission on August 13, 2014. The State filed their brief on August 12, 2014 with a motion for an extension of time. Petitioner filed a motion to hold said appeal in abeyance in order to respond to State's brief. On August 14, 2014 the Court affirmed in an unpublished unsigned boilerplate opinion by Justice Dori Contreras Garza, which appear to be the work of a clerk or para-legal employed by said justice refering soley to the Anders brief that attorney Fred Jiminez submitted that should have been ruled moot. Petitioner filed motion for rehearing on August 30, 2014. The State filed brief agreeing with Petitioner's claim of double jeopardy wherein the San Antonio Court rendered relief for the exact same issue- Rehearing was denied on January 21, 2015-
VII - GROUNDS FOR REVIEW
GROUND ONE; PAGE NO.
TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES
IN VIOLATION OP U-S-C-A. CONST. AMENDS 6TH AND 14TH. TRIAL COURT INFRINGED UPON PETITIONR'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULTING PETITIONER'S
CLAIM-
GROUND TWO;
THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER FOR multiple BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFUL ENTRY, IN VIOLATION OF TEXAS CONSTITUTION ARTICLE I/§14 AND U-S.C.A. CONST. AMEND 5TH/ ALSO V.T.C.C.P. ART. 1.10. GROUND THREE;
INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT FILE PRETRIAL MOTIONS/ NOR OBJECT DURING TRIAL TO MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL/ SUCH OBJECTIONS
WOULD HAVE RESUffiED IN DIFFERENT OUTCOME. GROUND FOUR;
INEFFECTIVE OF COUNSEL; COUNSEL'S FAILURE TO FILE MOTION TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HENCE/ PROSE CUTION COMMENCED UPON THESSTRENTGH OF AWUNSIGNED INFORMATION. GROUND FIVE;
ineffective ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH V.T.C.C.P. ART.31.03/ WAIVER BY ATTORNEY PROCEDURALLY DEFAULTED PETITIONER'S RIGHT TO R'aSEiSE CLAIM FOR APPELLATE REVIEW. GROUND SIX:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING CHANGE OF VENUE AFTER IT BECAME IMPeSSIBEE.TO SEAT A JURY THAT WAS UNBAISED IN HIGH PROFILE CASE.
GROUND SEVEN;
INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL ABANDONED PETITIONER/ ACTING AS NO COUNSEL AT ALL/ MERELY FRIEND OF COURT.
VIII. GROUNDS FOR REVIEW CONT: GROUND EIGHT: PAGE NO,
PETITIONER'S COUNSEL FOR DIRECT APPEAL FRED JIMINEZ COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL BY PLACING A FRAUD BEFORE THE
COURT BY FILING FRIVOLOUS BRIEF, FOR SUCH ACTION WERE MOTIVATED BY POLITICAL ASPIRATIONS AND NEPOTISM/ AND THE HIGHiEjeOSSltEE NATURE OF
THE CASE. THE COURT ASSIGNED STEPHEN W. BYRNESAS APPEAL ATTORNEY/ RENDERING FRED JIMINEZ'S BRIEF MDOTi BY OPERTION OF LAW. STEPHEN W.
BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAW.
GROUND NINE: PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY
INSANITY/ AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE TIME OF OFFENSE.
IX". COMES NOW/ JOSES GONZALESIIII / HEREINSTYLED, PETITIONER/ FILES.; THIS PETITION FOR DISCRETIONARY REVIEW IN ACCORDANCE WI^H TEXAS RULES-^sAPPELLATE PROCEDURE RULE«68. TO WIT:
ARGUMENT
GROUND ONE:
TRIAL COURT ERRED IN ALLOWING PETITONER TO BE TRIED I=N SHACKLES IN VIOLATION OF U.S.C-A. CONST. AMENDS 6TH & 14TH. TRIAL COURT INFRINGED UPON PETITIONER'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL. INEFFECTIVE aSSlSTAHGE OF COHNSBIL FOR OBJECTING TO PETITIONER BEING SHACKLED AND THEREBY PROGEDURALLY DEFAULTING PETITtlONESFSSCCAIHa- Petitioner contends the trial court abused its discretion in requi ring Petitioner to wear shackles during trial/ and the wearing of shackles was not harmless. (RR.Vol.3/ Pg.l26/Line 3-13). From this colloquy between the court and the Petitioner ^estEaihtsr.as articulated by the court line 8, does not justify shackling of the Petitioner. The Court of Criminal' Appeals has repeatedly critized Nueces County Courts for rountinely shackling defendants without articulating a need for restraints. Criminal Law Keynote-637-2: Grounds and circumstances affecting the use of restraints in general. Essential State interest justifying shackling a defendant is found where there is a danger of escape or injury to the jury/ counsel/ or other trial participants. U.S. V- Banegas/ 600 F.3d 342. Criminal Law Keynote-637.2: Rountine shackling oi'defendants is prohibited. Bell v. Stated 356bS.W.3d 528/ rehearing overruled. (Tex-App.Houston[14th Dist.]2008).Generally a defen dant has right to be tried without being shackled/ whether or not the shackles are visible - to the jury? however/the trial r ^ants were visible to the jurors.. See Vol ^3 .pg. 126. The Petitioner was denied the persuiaptibn of innocence and every aspect of due process under the U.S. Const.14th Amend/ 6th Amends/ Equal Protection Clause. Ineffective Assistance of Gounseli To Wit: Because Petitioner's counsel did not object to petitioner being shackled/ said counsel procedurally defaulted said claim for purpose of appellate review and such deficient performance prejudiced the out come and because of this act and ommission there is a probability that the outcome would have been different. Shackling of•Petitioner without a demonstrative need compromised the formal dignity of the court and judicial proceedings and lead to harmful collateral effects- Such eff'ects cheifly included curtailing Petitioner's ability to communicate: freely v/with counsel because of the physical limi tations imposed by shackles and simply the distraction and embarrasment they caused the Petitioner. See/ United State/ v. Durham/ 287 F-3d 1297/ 1304 THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER FORMMUETIEEE BURGLARIOUS ENTRIES WHERE THERE WASOONEY (1) UNLAWFUL ENTRY. IN VIOLATION OF TEXAS CONST. ARTICE 1§14 AND U.S.C-A- CONST- AMEND. 5th AND V.T.C.C.P. ARTICLE 1.10. TO WIT: Petitioner was convicted in a single trial and given multiple punishments for the same conduct/ thereby invoking the jeopardy clause in the P»S. Const. & the Texas Const. Petitioner was charged by indictment in Count I with coniitting Murder in the course of a Burglary of a Habitation, and in Count II/ Burglary of a Habitation with Intent to Commit Aggravated Assault or a Felony- In Art- 1.10 V.T.C.C.P. States: No person for the same offense shall twice be put inr jeopardyief life-be it-b©rtyf snor shall a person be again put upon for trial for the same offense; after a verdict of not guilty in court of competent jurisdiction. The rule is a State may notpplace a defendant in doiable jeopardy; U.S. Const. V; Tex. Const. Art. I§14; Benton v. Maryland/ 395 U.S. 781 (1969). This means the State may not:. :.(1) prosecute a. defendant fGrvthd same offense after an acquittal; and (2) prosecute a defendant for the same offense after a conviction; or (3) obtain multiple punishments in a single trial for the same offense- Illinios v. Vitale/ 477 U.S. 410 (1980); Brown v. Ohio, 432 U.S- 161 (197? 7). What we are concerned here is; "that Count I for Capital Murder is predicated on a burglarious entry in order to be upgraded to Capital Mureder- See, Tex. Penal Code § 19.03. Count 11, under Penal Code § 30.02 Burglary of a Habitation intent to Commit Aggravated Assault or a Felony- The "same elements" test found in Blockburger v. U.S., 284 U.S. 299 (19- 32) questions whether the State is attempting to punish the defendant twice for the same offense- This test asks the Court to examine each of the statutes to determine whether each require a proof of:apdifferent element the other does not- The Court abandoned the "Same ebsdaet" test by overrulling Grady v. Corbin, 495 U.S. 508 (1990), in U.S. v. Dixon, 509 U.S. 688 (1993) . But in double jeopardy/mCiitiple punishment claims, Blockburger is not the solo focus- Ervin v. State$?991 S.W.2d 804,814 (Tex.Ceim.App.1999)- .IfIthe Court has actual legislative intent of the two statutes, that intent is the critical factor- If not then look at Girdy V. State/ 213 S.W.3d 315/319 (Tex.Crim.App.2006)(if the prosecution, in proving one element of one offense, also necessarily proves another charged offense; if so, there must be clear legislative intent to punish the offense seperately or multiple punishments are barred.) 3. GROUND TWO CONT: The allowable unit of prosecution is the individual entry for burglary is • not the number of individual crimes committed once the defendant makes the unlawful entry. Ex parte Gavazos* 203 S.W.3d 333 (Tex.Grim.- App.2006). Vaughn v. State/ 239 S.W.3d 351 (Tex.App.-San Antonio 2007). Here we have Petitioner sentenced to multiple punishments for one un lawful entry. See/ Ex parte Castillo/ 432 S.W.Sd 457 (Tex-Crim.App.-San Antonio 2014/ no petih; iDouble Jeopardy Keynote-4: Double jeopardy clause impose few/ if any/ limitations on the legislative power to esta blish and define the offense. U.S.C.A. Const.5th Amend. Double Jeopardy Keynbte-144: Convictions for Capital Murder during the course of commit ting Burglary of a Habitation/ and Burglary of a HabitatlgnrrinfefeBt to eommxt a Felony (Aggravated Assault) violated double jeopardy clause; even thou there were two victims/ the alloable unit of prosecution was the unlawful entry. Not the complainant/ and the defendant was punished multiple times' for a single entry. U.S.C.fiA 5; V.T.C.A. Pen. Code § 30.02 Ca). Double Jeopardy Kefnded-r32.1: Thie "most serious offense" which is retained when convictions violate double jeopardy clause is the offense of conviction which the greatest sentence was assessed; other::£getors such as the degree of the felony, range of punishment, and rules govern ing parole eligibility and awarding of good-conduct time/ are not consi derations; overrulfling Landers v- State/ 957 S.W-2d 58/ U.S.C-A. Amend 5. 'h The issue before us is convicting Petitioner of two burglarious entries each with a different complainant but arising from a single unlawful en try of a habitation constitute double jeopardy? The prosecutions theory in the charging instrument that Petitioner committed Capital Murder in the course of committing Burglary of a Habitation in Count:!. The pre requisite of felony murder upgraded to capital ..murder is outlined in V.T.- G-A. Penal Code § 19.03 (a)(2). Wherefore without the burglarious entry '"I Petitioner could only be convicted murder as defined. The integral part of the conviction in Count I is the burglary of a habitation- It was established at trial/ that Petitoner kicked in the front door/ shot/at:: Vidal Rodriguez/ then proceeded to the back bedroom and shot his estranged wife-multiple times. See, (RR.Vol.4/pg.11-17. The theory of the indictment differed from the theory at trial. Wherein the capital murder was placed in a stratigic position of appearing first/ when in fact it was the-' result of Count II/ Burglary of a Habitation intent to commit a Felony (Aggravated Assault). Burglary of a Habitation is complete once the unlawful entry is made, without regard tb whether the intended theft or felony is also completed. V.T.C-A. Penal Code § 30.02 (a)$2)/ V.T.C.A. i ! 4. GROUND TWO CONT: § 22.02 Aggravated Assault (1) Causes serious bodily injury to another, including the person's spouse; or (2) Uses or exhibits a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by by Sections 71.003/ 71.0021 (b)/ 71.005 (b), an offense under this statute is a felony of the second degreeif; (to end of statute)- The allowable unit of prosecution for assaultive offense is each complian- ant. See, Phillips v. State, 787 S.W.2d 391^95(Tex.Crim.App.(1990)(Assault) Ex parte Rathnell, 717 S.W.2d 33 ,36 (Tex. Grim. App .1986) (VoltiintaEy/Manslaugh ter) . Burglary, however is not an assaultive offense; rather, its place ment within Title 2 indicates that the legislature determined burglary to be crime against property. Thus the complainant is not the allowable Vinit-of prosecution in burglary, rather, the allowable unit of prosecution is the unlawful entry. When a defendant is convicted of two or more offense- s that are the "same" for double-jeporady purposes, our case law tells us that the conviction for the most serious offense is retained and the other conviction is set aside. See, Landers v. State, 957 S.W.2d 558/5S9— 60 (Tex.Grim.App.1997). Landers statesr^that the ^ni©st?sgf:ious" offense is determined by the degree of the felony range of punishment and sentence imposed. Landers is overruled by Ex parte Cavazos'. The third reason applies some what differently to the double-jeopardy ebntext than the misjionder context, we.fashioned a rule'designed to best ascertain what offense the State would elected to proceed upon upon at the time of trial. We did so because, in the misjionder context the State is not permitted to prosecute both offenses at the same time. Hence our evaluation of the seriousness of the offense coming into play only when the cahgejof punish ment and the degree of the offense being the same- It is this very rea son why Petitioner need competent legal counsel, for the complexity of such issue. Petitioner's counsel acted as No Counsel at All! We shall visit the misjionder doctrine in our next point of error. For the record reflects that double jeopardy has appeared from the record, to the degree that both sentences are equal in respect that Petitioner was sentenced to life on both Counts, and the Court has ruled in Gavazos, 203 S^W-3d 333 (Tex-Crim-2006)- The most serious offense retained.-In this case both sentences are equal, thereby jeopardy nullifying both- There being jeo pardy appearing from the record, said convictions should be remanded and aggHi^tal?/ or in lieu with instructions. See also. Ex parte Castillo/ 432 S.W.3d 457 (Tex.App.-San Antonio 2014, no pet. h.). 5. GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJIONDER OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT FILE PRETRIAL MOTION NOR OBJECT DURING TRIAL TO MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL. SUCH OBJECTION WOULD HAVE RESULTED IN A DIFFERENT OUTCOME. Criminal Law Keynote-620(3): Mandatory serverance of offenses only applies to joinder of property offenses. V.T.C.A. Penal Code § 3.06(a). Indictment and Information Keynote-127: State is prevented in the presence of objection/ from alleging more than one non-property offense in a single indictment/ regardless of the number of transactions involved. V.T.C-C-P. Art.21.24. Indictment and Information-Reynote-127/129 (1): For State to avoid joinder problems/ indictment for non-property offenses/ whether arising from one transaction or seperate transactions/ should contain only one Count in as many paragraphs as are necessary to allege various manner and means of committing the one alleged offense. V.T.C.C.P • ;\ART. 21.24 (a). Indictment and Information Keynote-196(7): To avail himself of pleading limitations with respect to non-property offenses, defendant should file pretrial motion to quash indictment orrurge/ sometime during trial/ that State make an election; failure to object will result in waiver of plead ing requirements. V-A.T.C.C.P- art- 21.24. Indictment and Information Keyn©te-127: Indictment was invalid on basis of misjoinder where indictment alleged more than r.pne:: rionproperty offense and property offense- INEFFECTIVE ASSISTANCE OF COUNSEL petitioner's counsel not filing Motion to Sever offenses/ nor Motion to Elect/ nor Objecting to misjionder/ resulted in Petitioner's claims to be procedurally defaulted for purposes of appellate reviex^. Prejudiced the outcome of the trial/ resulted in the convictions for two offenses for the same transaction which resulted In two life sentences- Because of counsels deficient performance thereri-s treasonable probability that the outca>!he would have been different- Such ommissions by the Petitioner's counsel gave the State a-tactical advantage over Petitioner/ which resul ted in the trial being unfair and biasd jury. U-S.C.A- Const- Amend- 6 & 14 Counsel's failure to file pretrial motion to quash/ or object was far "below the range expected of reasonable/ professional competent assistance of counsel." Counsel's performance thiis/ "did not measure up to the stan dard required in the holding in StricMand/v466 U.S. 688(1984), and [if it had/] there is a reasonable probability that the results would have been different in the sentencing phase." 6. GROUND THREE CONT: Under the applicable State prcedures there would have been an election, and Petitioner would not have to face two offenses under the same jury. Turning to the prejudice issue: Counsel Abandoned His Client; The manda tory severance under §3.04 (a), applies to joinder of property offenses listed under Title 7 of the Penal Code. See/ Waythe v. State/ 533 S.W.2d 849 iiTex.Criin-App.1976) - Capital Murder is not a property offense. It is listed as an offense against the person, under Title Eive of the Penal Code. V.T.C.A. Penal Coddoig.03.. However , the right iso-foeeesaTi election# which follows from implicit statutory restrictions relating to the manner in which non-property offenses may be joined in an indictment/ is support- edbby precedent# it holds that the legilature/ by its amendment of art. 21i24 / has implicitly prevented the State::fromiiailegiagv. in a. single indictment two or more nonproperty offenses if those offenses arose out of the same criminal "incident/ act or transaction'."" Generally/"transac tion" has come to mean a criminal event and the various paetieulaf offenses committed within that event. See, Drake/ supra/ at pp.945-49/ (Petitioner's original Brief and Appendix pg.l6). Thereby counsel abandoning his client in a^critical stage of the proceeding resulted in inadequacy of representa tion. fhere being ineffective assistance of counsel appearing from the record/ said cause should be reversed and remanded with instructions. INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL'S FAILURE TO FILE MOTION TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED; HENCE PROSECUTION COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION. GROUND FOUR: TO V3ITi Petitioner's attorney failed to file motion to qaush the Information that does not have signature on it. We are left with the proposition that the case proceeded to a conconclusion with a documentation in the file to reflect that Mark Skurka or anyone else signed the Information charging Petitioner with an offense a further jurisdictional defect of itself. See, Holly v.State//i469 S.W.2d 136 ,137 (Tex .Crim.App. 1970) . See/ Exhibit "A" Pet- Appelate Brief). T-C-C-P- art- 21.21(a)/ Lacy V-State/ 160 Tex. Crim. 95/ 267 S'^;]W-2d 139/141(1948)- Because Petitoner is in need of aJity. at every stage of the proceeding it is emphasized here that attorney's knowledge and skill of the law and practices of the criminal trial and proceedings. Criminal Law Keynote-641.13(2): Performance of defense coun sel was not only unconstitutional unreasonable and ineffective, but coun sel abandoned required duty, of loyalty to his client; Counsel he acted with reckless disregard -for his client's best interest and at times, appearantl^ to weaken his client's case. Just simply poor strategic choices. U-S-C-A- 7. GROUND FOUR CONT: Const- Amend- 6th- It is emphasized that a "defendant need not show that counsel's deficient conduct more than likely altered the outcome of the case." Instead the defendant bears the burden of showing "that there is reasonable probability that/ but for counsel's unprofessional errors, the results of the proceeding^-/would have come /out different. A reasonable probability sufficient to, undermine, confidence in the outcome." Id-/ 694/ 104 S-Ct- at 2068/ T-C-C-P- art-1.14 Waiver of Rights: Punishing a lawyer's intentional and unintentional errors by closing the courthouse door to his client is both senseless and misdirected method of deterring the slight of State rules. It is senseless because unplanned and unintentional action action of any kind generally is not;, subject to deterrance; and to the extent that it is hoped that a; threatend sanction addressed to the defense induce greater care and caution on the part of trial lawyers, thereby forestalling negligent conduct and errors The potential loss of valuable State remedies would be sufficient to this end. And it is misdirected sanction because even if penalization of incompetence or carelessness will enciourage more legal trianing and trial. preparation / the Petitioner / \as oppossed to his lawyer, hardly is the proper recipient of such a penalty. Espicially with fundamental constitutional rights at stake, no fictional relationship of principal-agent or the like can justify holdingthe crimi nal defendant accountable for the naked errorscg^ his attorney. This is espicially true when so many indigent defendants are without any realistic choice in selecting who ultimately represents them at trial. Indeed, if responsibilty for error must be apportioned between the parties, it is the State through its attorney's admissions and certifications policies, that is more fairly held to blame for the fact that practicing lawyers too often are ill-equipped to act carefully and knowledgeably when faced with decisions governed by State procedural requirements. Hence, Petitioner agrees with the proper functioning of our system of criminal justice, necessarily places a heavy reliance on the professionalism and the judgment of trial attorneys. A system that ascribes absolute forefiture of Petition er's constitutional claim where his lawyer manifestly excercise no pro fessional judgment at ail-where carelessness, mistakes, or ignorance is the explanation of the procedural defaults. It is regrettable that certain errors/.that might have been cured earlier had trial counsel acted expediti- ously, must be corrected collaterally and belatedly. Hence, Petitioner s attorney was was deficient and such deficient conduct prejudiced the outcome of the trial. Because of attorney's acts and ommissions said cause should be reversed and remand with instructions- 8. GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH V-A-T-C-C-P. ART- 31.03. SAID WAIVER BY ATT0RNEY:EEFSUL"TED PETITIONER' S RIGHT TO RAISE GROUND FOR APPELLATE REVIEW. Petitioner complains that deficient perforraace by attorney defaulted his claim for appellate review, and prejudiced the outcome of trial. Petitioner an Alice police officer was the subject of extensive media coverage in the County and surrounding Counties wherein the instant offense took place. Furthermore/ the Internet and Social Media followed said case. Petitoner was the subject of a documentary/ wherein a series of local television stations broadcast the sventsrand circumstances surrounding the case. See/ (App- Brief Bxh3)li>it "G"). Under art. 31.03 (a)/ a change of venue may be granted in a felony ©r5at.misdemeanor case punish able by confinement on the written motion of the defendant. There was a dangerous combination against him instituted by very influential persons/ by reason of which he canot expect a fair trial. Said publicity was per vasive/ prejudicial/ and inflammatory. Here we aiee concerned with the attorney not filing motion for change of venue/ after it became apperant that Petitioner could not recieye a fair and impartial trial/ and if atorney's deficient performace prejudiced Petitioner? The court asked the panel anyone knows about the case? (RR'iVol .2/pg.30/ line:6-23) Over 70 jurors raised their hands who had:personal knowledge of the case- In VoJ'.2# pg.30/ line: 23S25.) 27 people had already made up their minds could not be fair and impartial. In (RR.Vol.2/ pg-58/1-25/pg.59/1-25 & pg.60/1-25)/ juror no.2 explains in detail about the coverage in the Callei Times. She describes the kidnapping of Petitioner's son/ wherein she has formed an opinion as to the violence of the case. Also defense attorney Woener Stated: "he never seen so many people who have made their minds up in a case/ even with more publicity. fVol.2/pg.56/23-24). Defense counsel should immeadiately filed a Motion for Change of Venues Kealizing from the percentage of potential jurors that had already formed an opinion about the guilt of the Petitioner/ that his elient could not recieve a fair an impartial trial, "a defendant must show an ability to obtain a fair an impartial trial." Coupled with counsel's disenchanment Petitioner could not have recieved a fair and impartial trial because defense counsel a'lready given up. See/ Williams v- State, 897 S.W-2d 351 {Tex-CriM*App.^ cert, denied/ 516 U.S. 946, 116 S.Ct.385, 133 L.Ed.2d 307 (1995). To 9. GROUND FIVE CONT: •gastify a change of venue based on reGen.tfarid'significant ^amounts of media coverage and that publicity regarding similar cases had the effect of creating greater prejudice/ bringing "some afore-thought to people' and making it "very hard" to find a fair and impartial jury. Petitioner's attorney could, have called upon a number of potential witnessesa that were listed on the prosecution's witness Irist for this eventuality. The , prosecution was prepared to fight a'change of venue motion/ witnesses from several television stations/ newspapers/ and other social media outlets were prepared to testify to the number of potential jurors exposed to these segments. See/ (Appellants Brief Exhibit "C"). Petitioner's attorney could have produced the requisite affidavits need to bolster his Client's positior See/ (C.R. pg-30/32/ and 43). Here you have .77 members of the array who have followed the case in the media, who have extensive knowledge of the case, including kidnapping of Petitioner's son/ (ah offense he was not on trial for), which further excebarrated the coverage and the amount of times this coverage was repeated in a course of a year was-astronomlcal- Therefore, even after the court conducted its vlbr.dire, it was clear from the record that the trial court tried to rehabilitate the remainder of this poisoned panel, we must also bear in mind, that the court was in a unique position of hearing the testimony of the .jurors and guaglng the. siacerity of ,their responses in light of the publicity about the case. Petitioner was entitled to a change of venue if he could show that the there;.was influences in the commiiiity which could affect answers on the vior dire. There are two things that distinguish this case from others in which a majority of the venire is familiar with- the case.. First the nature of the publicity is quite different because/ Petitioner was a police officer/ there was a buiglary/ a murder/ kidnapping/ an Amber alert went out/ there was a school lockdown/ there was a Swat-standoff/hostage situation. NewsrStationsrreport ed widely and did extensive coverage on the day of the offense/ and for a year after until the date of trial. Potential jurors had the oppertunity to watch it unfold. Second/ a large number of potential jurors could not set- aside their opinion. This strongly indicates that pretrial publicity result ed in actual identifiable prejudice to Petitioner. Also media coverage was not accurate and objective/ because it reported an actual kidnapp were there was none. Because Petitioner's attorney not filing the motion for change of venue, it rendered him deficient in his performance/ and because of -the ommission/ it is a probability that the outcome of the trial would have been different. It must be remembered that the court ordered a Gag Order on the case. See, (CR.pg.30). Here we have the acts and ommisssions 10. GROUNDdFIVE CONT: of said attorney / who effectively abandoned his his Client. Said cause should be reversed and remanded. GROUND SIX: TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING A CHANGE OF VENUE AFTER IT BECAME IMPOSSIBLE TO SBAffiCMJURYVTHIST WASiiHNBTASDCiNi'HIGH PROFILE CASE. In change of venue cases; T.C.C.P. art.31.01/ the trial judge should have filed her own motion to change venue after the vior dire revealed that Petitioner could not recieve a fair and impartial trial. Because the jury that was actually seated was tainted by the rest of the array, along with the fact that this case was tried in the media before the actual jury was pooled. The Sixth Amendment gives the Petitoner the right to, a fair and impartial trial/ it is the presiding judge who condu cts the vior dire. It was impossible to seat a- jury in this high profile, media driven trial, trial judge abused her discretion. The large number of venire panelist were disqualified for cause, because they could not not set aside their opinions of the. Petiioner's guilts See, (RR-vol.2/pg. 30/9,22/ & pg.31/13-25). See/ 14th Amend U.S. Const. Also/ V.T-C.C.P. art. 31.03 (a)/ Mayola v. Alabama/ 623 F.2d 992/ 998 (5th Cir.l980)/ Von Byrd v. State/ 569 S.W-2d 883/ 890-91/ Russel v. State/ $46 S-W.3d 705/714 (Tex,4App.Texarkana 2004) pet. ref d) / Crawfeord V. State, 685 S.W-2d 343/ 349-r350. The number of jurors that were unable to serve on the jury in this case demonstrates the extent of the pretrial publicity had permeated the community. Here out of 100 a large percentage more than %could be- impag/ tial and already formed their opinions. See, (RR.Vol.2/pg.31/22-25). These panelist could not set aside their opionions is reasn enough to consider the entire community 'infected" by the pretrial publicity and prejudice. Thp inflammatory atmosphere and those actually seated were polsioned by the others. For this reason said cause should be reversed and remanded, and said former trial judge should be taken on vior dire for her acts and ommissions. GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL FOR ABANDONING PETITIONER ACTED AS NO COUNSEL AT ALL: ACTING AS MERE FRIEND OF COURT. Said counsel abandoned his Client at critical stage of the proceedings. In the toality of representation by defense counsels', Mr. Mark Woerner, Mr. Steve Schiwetz, and Mr. Mark Gonzales abandoned their client. Mr. Woerner at the orjset of trial was not concerned about shackling of Client, nor did any othei: attorney object- Furthermore, Mr. Woerner told the 11. GROUND SEVEN CONT: that his client was guilty, which nullified any defense in regard to Count II/ and resulted in the jury bein^ biased. A strategy the Petitioner did not approve of/ nor able to communicate his disbelief about such remarks that infringed upon his persumption of innocence, the Supreme Court has longed recgonized that 'the right to counsel is the right to effective assistance of counsel'" under the Sixth Amendment/ Strickland v. Washington 466 D.S. 688 (1984); In this case, We find that the defease counsel did not put up any meaningful defense during the punishment phase/ nor file any,pretrial motion that Petitioner was never convicted of any felony in this State or any other State/ See, V.T.C.C.P. art.42-12(d)(8)(c) states: A defendant is eligible for community supervision under this section only if before the. trial begins the defendant files a sworn ai6£i6ft"to the judge that the defedant has not been previously convicted of a felony in this or any other state/ and the jury enter in the verdict a finding that the infor mation is true. See, (RR.Vol.2/pga9/l-I7). Because of the forceful argument by State's attorney Mr. McCaig that Petitioner was not eligible for proba tion/ Petitioner's attorney should have researched further in the same code to ascertain that Petitioner was eligible for probation. Furthermore/ counsel did not reasonably argue on his client's behalf during punishment phase/ espicially in regard to Count II. See/ (RR.Vol.5.pg.126/3-13). Furthe -more/ defense counsel failed to investigate the extensive media coverage/ Television Documentary which featured Petitioner in family violence^ failed to adequately prepare a defense/ nor subject the State's case to the advesa rial testing process/ by having fellow police officer's who were having illicit affairs with his wife there to testify. Nor did he interview them/ nor have them appear before the court/ Officers Noe Roel/ Emede Reyes/ Buzz esparza/ Luis Rene Ozuna/ and Frank Estrada. Defense Counsel did produce phone records.-See/ petitioner's appeal brief Exhibit "14-16"). That was the extent of the preperatxon:for..the capital murder trial. Eortheraore/ although court ordered physcological testing of the Petitioner/ there was no report by the psychologist included in the record/ nor was he called to testify as to the Petitioner's mental state at the time of offense. Once the attorney told the jury his client was guilty/ he was wholly unprepared to make a platable defense of his theory/ and effectively undermined the persumption of innocence in Count I and Count II. This was no defense at all/ but a tactical retreat/ and pure abandoment of his client. Even grant ing deference to counsel's choices/- we cannot conclude that he need-not undertake further investigation/ "before proceeding with an argument he was wholly unprepared to make. Burger/ 107 S.Ct. at 3126. The Court should find elSarly established that Petitioner's counsels' so abandoned their "overarching duty to advocate the Petioneir's cause/ that the State proceed- 10 GROUND SEVEN CONT: -ing were almost non-adversarial. Informing the jury that his client was guilty/ permeated that guilt thru both counts and destroyed any persumption of innocence f or Gccurit: II - Counsel's actions in regard to sentencing in Count II even more clearly indicate the abandonment of his duty of loyalty/ by switching -from the jury to sentence/ to judge/ and failed to put on any mitigating factors/ and failed to advo cate his client's position. The most striking indication of counsel's performance and failure to fufill his duty of loyalty to his client is from his behavior at the t r i a l itself. "Counsel at the summation of the trial / counsel reffered to the difficulty his client had presented to him. See, (RR.vol.5.pg.99 / line 20-25/ Pg.lOOllilne 1-20) . Counsel is in fact telling the jury he could not present any mitigating eirCQmstances/ when evidence against his client is so overwhelming. In closing counsel lamenated : (RR.Vol.5/pg.102/13-16). Petitioner's attorney did not simply make poor choices; he acted with reckless disregard for his client's case. Whatever the reason the record supports that counsel turned against his client. There is no apperent reason for counseil's behavior/ although he repeated many times that his client was guilty and how difficult this case was. This conflict in loyalty unquestionably affected his represen tation. A defense attorney who abandons his duty of loyalty to his client and effctively helps the State in an effort to obtain a conviction suffers from an obivious conflict of interest^ Sich an attorney/-like unwanted counsel/ ''represent' the defendant only through a legal fiction." See/ Faretta v. California/ 422 D-S- 806#821 (1975). In fact an attorney is burdened by a conflict between his client's interest and his own sympa thies to the prosecution's position is considerably worse than an attorney with loyalty to other defendants/ because the interests of the State and the defedant are necessarily in opposition. As the Supreme Court has assereted: "The right to effective assitance of counsel M thus the right of the accused to require the prosecution's to survive the crucible of meaniningfuii adversarial testing. . . [i]f the process losses its character as confrontation between adversaries/ the constitutional guarantee is violated." See# Cronic# 466 U.S. at 656-57. Petitioner urges the Court/ that reversable error has appeared from the record because of sadd coun sel's deficient performance that prejudiced the outcome of the trial. Said cause should be reversed and remanded. Ground Eight: S>fiT!DafM®^R;';S counsel for direct appeal FRED JIMINEZ COMMITTED lENEFFEC- ASSISTANCE OF COUNSEL BY BLACING A FRAUD BEFORE THE COURT BY FILING 1 3. GROUND EIGHT CONT: FRIVOLOUS BRIEF, FOR SUCH ACTIONS MOTIVATED BY POLITICAL ASPIRATIONS^ NEPOTISM/ AND THE HIGH PROFILE NATURE OF THE CASE. THE COURT ASSIGNED STEPHEN W. BYRNE AS APPEAL ATTORNEY/ RENDERING FRED JIMINEZ'S BRIEF MOOT BY OPERATION OF LAW. STEPHEN W. BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAW- Erejudice/ whether necessary or not/ is established under any applicable standard. Petitioner was.charged with several crimes/ the State assi^^edf counsel Fred Jiminez to represent him on his direct review of convictions. Fred Jiminez's wife was the District attorney for Nueces County/ (Anna Jiminez)/ whose office prosecuted the Petitioner. Becausg -of the conflict of interest ,.iand the high profile nature of the case, said attorney filed a frivolous v, brief/ knowing well that Petitioner's case was filled with meritorious claims. Such insidious intent is demonstrated by the fraudulent document foisted upon the Court as an Anders brief. Because of the political aspirations of Attorney's wife and the high profile nature of'.: the case/ who was at the time of the filing of brief embattled with the State over corruption charges while she was in office/ said attorney did not bring his legal-skill and knowledge to bear. Petitioner would have succeeded . Because Stephen W.. "Brynd was the counsel chosen to repla ce Fred Jiminez / because the court was not satisfied with Fred .jiminez's representation. -The purpose of the SiuxaarAiriend guarantee: is to insure that defendants are represented by counsel and not have to face lybrinth of the criminal justice system unawares. Judicial scrutiny of cioxttk®!''^ performance must be differential (highly)^ Petitioner urges the Court because -the record was fully developed/ Petitioner should be allowed to proceed with ineffective assistance of counsel claims as postulated by the opinion in Trevino v. Thaler/569 U.S._(2013)(citation ommitted). Because of the con flict of interest (See/ Exhibit "D" Appellate Brief)/ and attorneys abandon ing etitioner there is a probability that the outcome would have been different. Because revers.ible error has appeaared in the record,/ Petitione urges the Court to allow him to take said attorneys on vior dire to further develop the record/ as well as reverse and remand said cause. . GROUND NINE: PETIiETIONER' S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY, AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE TIME OF OFFENSE. Ciriminal Law Keynote-773: If evidence from any source raises the issue of insanity, the trial court must include an instruction on insanity defense in jury charge.V.A.A.C.P.art.46.03; V.T.C.A., Penal Code §8.01. u 14.' GROUND NINE CONT: When considered with the facts and circumstances concerning an accused and defense/ lay opinion testimony may be sufficient to raise the defense of insanity. V-T.C.A./ Penal Code § 8.01. During the trial on the merits/ Petitioner's counsel raised the issue of Petitioner's mental state that lead up to the commission of the offense. See/(RR.Vol.5/pg.99 line 25#pg. 100 line 1-2G).From the foregoing by Petitioner's counsel demonstrates that he was of the opinion that his client "snapped." Which is eln off color remark of insanity.Petitioner's attorney filed motion for psychological testing which was granted by the court. See/ (CR-pg48). It appears from the record that counsel was headed towards this defense/ then abandoned thi, defense/ even thou that was the agreement between Petitioner and attorney. Knowing that; Petitioner was a former Border patrol Agent/ got hurt on this assignment/ suffered from Post Iraumatic Stress snydrome from this assign ment. Also/ as an Alice Police Officer/ which greatly effected his physco- logical well being/ coupled with the fact that Petitioner's wife was having multiple affairs with Petitioner's co-workers who were Police Officers. Also/ the amount of stress that police officers' experience on a day to day level/ such amount of stress police officers' on a national level is well documented, and the amount of domestic violence involving officers' and members of the armed Forces in like situations. Petitioner's attorney was derilict in his duty for not preparing for this defense, soi if by moral insanity it be understood only a disorder or perverted state of affections or moral powers of the mind/ it cannot soon be disgarded as -affording any shelld from punishment for crime: if it can be truly said that one indulges in violent emotions/ such as remorse/ anger/ shame/ grief/ and the like is afflicted with homocidal insanity/ it would be diffucult/ yes/ impossible/ to say. where sanity ends/ and insanity begins* We say to you/ as a result of our refelections on this branch of the subject/ that if the prisoner was actuated by an irresistable inclination to kill/ and was unable to control or subjugate his intellect... he is entitled to acquittal. (|te Justice PaxsoH/ 88 PA.291/Jan.20/1879). What then is that form of diease/ Dominated Ho'irtocidal Mania/ which will excuse one for having committed a Murder? Cheif justice Gipson calls it that unseen ligament pressing on the mind and drawing it to the consequences which it under coecerion which/ while it results are clearly percieved-/ is incable of resistance-aii invisible inclination to kill. It was error for trial counsel not ask for instructione punishment stage of trial due to insanity/ furthermore/ Petitioner's attor ney and State's attorney Ms. Dorsey put the charge together/ so it was ineffective assitance of counsel that his attorney subjected his cl to such eregrious harm both great and apperant. Ex parte Duffy/ - / is:. Ground Nine Cont: S.W.2d 507 (T6x.Criin.App.1980) . This standard requires that the court evaluate complaint of;ineffective assistance at the punishment Stage deter mining first/ whether counsel was reasonably likely to render ineffective assistance of counsel/ and second/ whether counsel reasonabley rendered ineffective assistance. The record is replete with the litanies of the grave and fatal errors committed by counsel in this case- These errors jctp^ged by the totality of the repesentation / denied him a fair trial. Mer- ly showing that they had some conceivable effect on the proceedings is inadequate. Strickland/ 466 U.S. at 693. Petitioner urges the Court to rev.- said cause and remand with instructions . , CONCLUSION Petitioner would urge the Court/ that he falls under the narrow ruling in Trevino Th4ier/ wherein the record was fully developed and the errors of his attorney were plain and apperrant. Said trial was overwhelmed by media and public pressure/ which resulted in the impossibility to seat a fair and impartial jury^/Petitioner was forced to wear leg shackles during the entire trial with no demonstrative reason by trial judge/ and counsel did not even object/ because he was assisting the State in helping to obtain -a conviction - Counsel rendered ineffective assistance on numerous occasions/ destroying Petitioner's persumption of innocence when he decided to abandon the temporary insanity defense and just throw his client to the wovles. Petitioners appellate attorney completely missed the double jeopar dy issue/and affadavit and information not being signed, as well as was motivated by nepotism and other factors and filed a frivolous brief. From the numerous litanies and acts and ommissions of counsels' in this case.' Said cause should be reversed and remanded. PRAYBB Petitioner Prays that the Court grant him this PDR and any and all relief requested herein. CERTIFICATE OF SERVICE A true and correct copy was hand delievered to the Nueces County district attorney Hark Shurka on 7/ /15. At the litieces County Courthouse/ 901 Leopard St- Corpus Christi# Texas 78401/ also Atty/General P.O.Box 12405/ Aastin/ Texas 78711. Respectfully ^ubnj^tte^ By: Jose (^nzales All #1832029 James v. Allred unit 201 FM 369 N. Iowa Park/ fexas 76367 16-. APPENDIX NUEOES COUNTY COURTHOUSE CHIEF JUSTICE 901 LEOPARD. 10TH FLOOR ROGELIOVALDEZ CORPUS CHRISTI, TEXAS 78401 361-888-0416 (TEL) JUSTICES 361-888-0794 (FAX) NELDAV. RODRIGUEZ DORI CONTRERAS GARZA HID/M.GO COUNTY G!NAM.BENAV!DES ADMINISTRATION BLDG. GREGORY T. PERKES NOPAL LONGORIA Coitrt of 100 E. CANO. 5TH FLOOR EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ tS^irteentj) Bisttrict of tlDexasi 956-318-2403 (FAX) August 14, 2014 Hon. Adoifo Aguilo Jr. Hon. Fred Jimenez Assisfent District Attorney Attorney At Law Nueces County Courthouse 509 Lawrence, Suite 301 §©TteDprard - Room 206 Corpus ChristIi TX 78401 Corpus Christi, TX 78401 * DELIVERED VIA E-MAIL * DELIVERED VIA E-MAIL * Mr. Jose Gonzales III Hon. Mark Skurka TDCJ #1832029 District Attorney James V. Allred Unit 901 Leopard Street, Room 205 2101 FM 369 North Corpus Christi, TX 78401 Iowa Park, TX 76367 * DELIVERED VIA E-MAIL * Re: Cause No. 13-13-00.011 -CR Tr.a.No. 11-GR^14W , Style: JOSE GONZALES III v. THE STATE OF rEXAS Enclosed please find the opinion and judgment issued by the Court on this date. Very truly yours, Dorian E. Ramirez, Clerk DER:dsr Enc. cc: State Prosecuting Attorney (DELIVERED VIA E-MAIL) 105th District Court (DELIVERED VIA E-MAIL) Hon. Patsy Perez, District Clerk (DELIVERED VIA E-MAIL) Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region, (DELIVERED VIA E-MAIL) THE THIRTEENTH COURT OF APPEALS 13-13-00011-CR JOSE GONZALES III V. THE STATE OF TEXAS On Appeal from the 105th District Court of Nueces County, Texas Trial Cause No. 11-CR-4141-D JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court orders the judgment of the trial court AFFIRMED. We further order this decision certified below for observance. August 14, 2014 NUMBER 13-13-00011-CR OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOSE GONZALES III, Appellant, THE STATE OF TEXAS, Appellee. On appeal from the lOSth District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza and Benavldes Memorandum Opinion by Justice Garza Ajury found appellant Jose Gonzales III guilty of capital murder, a capital felony offense, see Tex. Penal Code Ann. § 19.03(a)(2), (b) (West, Westlaw through 2013 3d C.S.), and burglary of a habitation to cpmn^it afelony (aggravated assault), a first-degree felony offense. See id. §30.02(a)(3), (d)(1) (West, Westlaw through 2013 3d C.S.). The trial court assessed appellant's punishment for the capital murder offense at life without parole, see id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.), and assessed punishment for the burglary of a habitation offense at life Imprisonment, with the sentences ordered to run concurrently. Appellant's court-appointed counsel has filed an Anders brief. See Anders v. Califomia, 386 U.S. 738, 744 (1967). We affirm. I. Anders Brief Pursuant to Anders v. Califomia, appellant's court-appointed appellate counsel has fired a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. See id. Counsel'sbrief meets the requirements ofAnders as itpresents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 262 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503,510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App. June 25, 2014), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error inthe trial court's judgment. Counsel has informed this Court, in writing, that counsel has; (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provided the appellant with copies of both pleadings; and (3) informed the appellant of appellant's rights to file a pro se response, and review the 1The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigient appellant believes thecourt should consider in deciding whether the 2 record preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 2014 WL 2865901, at *3, Stafford, 813 S.W.2d at 510 n.3: see also In re Schulman, 252 S.W.3d at 409n.23. The record shows that appellant was provided a copy of the record on October 21, 2013. After this Court granted several motions for extension of time in which to file his pro se response, appellant filed his pro se response on May 23,2014. Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75,80 (1988). When an Anders brief and a subsequent pro se response are filed, a court of appeals reviews the entire record, and: (1) detemriines that the appeal is wholly frivolous and issues an opinion explaining that it finds no reversible error; or (2) determines that there are arguable grounds for appeal and remands the case to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826^ 27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal. Id. We have reviewed the entire record, counsel's brief, and appellant's pro se response, and we have found nothing that would arguably support an appeal. See id. at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that itconsidered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); case presents any meritorious issues." Inre Schulman, 252 S.W.Sd 403,409 n.23(Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693,696-97 (Tex. App.—Waco 1997, no pet.)). 3 Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the judgment of the trial court Is affinmed. In accordance with Anders, appellant's attorney has asked this Court for pemiission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jefferyv. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no jaet.) ("[I]f an attorney believes thei appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attomey must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise him of his right to file a petition for discretionaiy review.^ See Tex. R. App. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n,35: Ex parte Owens, 206 S.W.3d 670,673 (Tex. Crim. App. 2006). DORI CONTRERAS GARZA, Justice Do not publish. fEX.-R.App.P.47.2 ^ No substitute counsel will be appointed. Siiould appellant wish to seel {/, omaoJ priority UNITED STATES ★ MAIL t ^'•u^' roJ^ /7^,: ^POSTAL SERVICE i express' • by ACCOUNT (If applicable) tOBIGlN (POSTAL SERVICE USE ONLY) • dpo OPTIONS ^Customer Use Only) .•2-Day • Mililary • • 1-C3ay Scheduled Dellvety Data Postage PO ZIP Cods (MM/OD/YY), J • f i:3'7.o£> )ptlona Saturday Dellvety (delivered next business day) zma Dale Accepted (MM/DD/YY^ iduled D.iillve_ry,'nma Insurance Fee ^.^- ,day/HoIlday Dellverv Required (additional (se, v.ha™ a«l able ) 10:30 AM •3;o6pM $ MAM Delivery Required (addlUonal lee, where actable ) tartoUSPS.cnm' orlocal Pnst Ottlce for avallabllllY. g. .S-.- /6 •*12 noon • '" 10:30 AMDeliveryFee Return Receipt Fee-' Uiva Animal TransportationFee vSEPRI^ Time Accepted _ .76rAM - a 'BO Sunday/Holiday Premium F« P^ QKhJ2^- WelgHV . •FlalRate $•• \rA vO- )4 '.•J'V. . /lerr-i • / oL Acceptance Efnpl,<^a Initials 9-^<0 "1- •^O • I j ^cir- IbELIVERr(POSTAL SERVICE USE ONLY) Ennployee Signature \ )r:t- • - Deliveiy Attompl (MM/DDA^ U.S. • am • PM Employee Signature pelivery Attempt (MM/DDA^ Oam Ickup or USPSTracking", visit USPS.com or call 800-222-1811. • PM 00 insurance Included. 3-ADDRESSEE COPY label 11-B,JANUARY 2U14 PSN 7690-02-000-9996 ,s ,© ..e Q .r?\ © © I• Q E mnrnJsmES s MLSJUfllL ' n P<^MSERVIC& ******^- ^ FREE SUPPLIES ONLINE1. ARGUMENTS CONT:
2. GROUND TWO:
II. Independent Review
III. Motion Tb Withdraw
Gonzales, Jose Iii (Gonzales, Jose Iii) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.