ilNAL NO. PD-1322-15
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN. TEXAS
COURT OF CRIMINAL APPEALS ISAAC GONZALEZ,
Petitioner, DEC 09 2015
V.
THE STATE OF TEXAS, Respondent.
On Appeal From The Thriteenth District Court of Appeals Appeal No. 13-15-0034-CR
at Corpus Christi - Edinburg, Texas
ISAAC GONZALEZ'S
PETITION FOR DISCRETIONARY REVIEW
FILED IW COURT OF CRIMINAL APPEALS DEC 11 2015 Isaac tox****** * 1809453 French M. Robertson Unit
12071 F.M. 3522
Abel Acosta, Clerk Abilene, Texas 79601 (325) 548-9035 Petitioner, Pro Se
TABLE OF CONTENTS;
INDEX OF AUTHORITIES.... .... ii
STATEMENT REGARDING ORAL ARGUMENT.. iii
STATEMENT REGARDING LIBERAL SCRUTINY iii
STATEMENT OF THE CASE iii
PROCEDURAL HISTORY. iii
ISSUE PRESENTED FOR REVIEW 1
STATEMENT OF FACTS 1
ARGUMENT:
ISSUE ONE - The Court of Appeals for the Thirteenth District of Texas erred in dismissing Petitioner's appeal from the denial of his Motion for Appointment of Counsel for Habeas Corpus, where said dismissal was not based on the facts of Petiti oner's appeal, but rather that of another, unrelated Appe llant 3
AUTHORITY FOR APPOINTMENT OF COUNSEL 3
SUBSTANTIAL CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL 5
GUIDANCE OF OUR FOREFATHERS 5
STATEMENT OF INDIGENCE... 6
CONCLUSION 6
PRAYER 6
INMATE DECLARATION 7
CERTIFICATE OF SERVICE. 7
APPENDIX. END
-l-
INDEX OF AUTHORITIES;
Federal Cases;
• Brown v. Allen, 344 U.S. 445 (1953) iii 'Bushv. U.S., 823 F.2d 909 (5th Cir. 1987) iii • Ex parte Millingan, 71 U.S. (4 Wall.) 2 (1866) 5 • Haines v. Kerner, 404 U.S. 519-520 (1972) iii • Ibarra, 723 F.3d 599 (5th Cir. 2013) 5 • Irvin v. Dowd, 366 U.S. 717 (1961) 5 • Martinez v. Ryan, 566 U.S. 1 (2012) 4, 5 • Moore v. Dempsey, 261 U.S. 86 (1923) 5 • Trevino v. Thaler, 133 S.Ct. 1911 (2013) 5
State Cases:
• Beard v. State. 243 S.W.3d 783 (Tex.App.-Amarillo 2007) 4 • Ex parte Rieck, 144 S.W.3d 510 (Tex.Crim.App. 2004) 4 • Spigener v. Wallis, 80 S.W.3d 174 (Tex.App.-Waco 2002) 4 • Talbort v. Gibson, 67 S.W.3d 568 (Tex.App.-Waco 2001) 4 • Traveler's Indoor co. v. Mayfield, 923 S.W.2d 590 (Tex. 1996) 4
Statutes and Rules:
• Texas Code of Criminal Procedure, Article 1.051 iii,l,3 • Texas Code of Criminal Procedure, Article 11.074 3
-ii-
STATEMENT REGARDING ORAL ARGUMENT:
The Petitioner is an inmate in the Texas Department of Criminal Justice and thus is not eligible to present any oral argument before the Court; there fore, if the Court grants Discretionary Review and recognizes any issue as needing oral argument, Petitioner hereby requests the Court appoint counsel to represent him in such proceedings.
STATEMENT REGARDING LIBERAL SCRUTINY:
Petitioner is a layman of the law, unskilled and without experience in the drafting of legal papers; therefore, he is entitled to a review that comes under a less stringent standard than those formal proceedings submitted by an artful and skilled practitioner of the law; and thus, his litigation should be construed liberally under Haines v. Kerner, 404 U.S. 519-520 (1972); Brown v. Allen, 344 U.S. 445, 502 (1953); and Bush v. U.S., 823 F.2d 909, 910 (5th Cir. 1987).
STATEMENT OF THE CASE:
This is an appeal from the erroneous denial of Petitioner's motion for appointment of counsel for habeas corpus, under Texas Fair Defense Act, Art. 1.051 V.A.C.C.P., as well as the Court of Appeals erroneous dismissal of the appeal in this matter.
PROCEDURAL HISTORY:
In a trial before a jury, Defendant was convicted of Aggravated Sexual Assault and two counts of Indecency with a Child, on August 22, 2012. On Sept ember 6, 2015, Defendant was sentenced to LIFE in the Texas Department of Cri minal Justice for the Aggravated Sexual Assault, and 15 years in the Texas Department of Criminal Justice for each count of Indecency with a Child. The original Notice of Appeal was filed on September 14, 2012. The appeal was per fected and filed with the 13th Court of Appeals, who affirmed the convictions on August 8, 2013. A Petition for Discretionary Review was then filed with this Honorable Court on November 8, 2013; and said petition was refused on January 15, 2014. On June 12, 2015, Petitioner filed a DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL FOR HABEAS CORPUS, UNDER TEXAS FAIR DEFENSE ACT, ART. 1.051 V.A.C.C.P., along with a DECLARATION OF INABILITY TO PAY COST. The trial court subsequently denied said motion on June 19, 2015, although the Order is » * •
-in-
general and non-specific as to why said motion is denied. On July 15, 2015, Petitioner filed his Notice of Appeal to said denial, as well as another Decl aration of Inability to Pay Cost, Request for Designation of Court Reporter's Record, and Request for Designation of Clerk's Record. On July 28, 2015, Peti tioner received a letter from the 13th Court of Appeals, dated July 24, 2015, stating that "it appears that the appeal has not been timely perfected." Upon receipt of that letter and on the same day of such reception, Petitioner sent a letter back to the Court notifying it that everything had been timely filed. On August 6, 2015, Petitioner received another letter from the 13th Court of Appeals, this time notifying him that there had been a defect in the previous letter, and it now "appears that there is no final, appealable order." Petiti oner was instructed to correct this defect within ten (10) days from the rece ipt of that letter. Petitioner did not respond to such letter, because he is not sure how there is no appealable order, when he is in possession of the trial court's ORDER DENYING DEFENDANT'S REQUEST FOR APPOINTMENT OF COUNSEL. Due to Petitioner's inability to correct the defect that the Court alleged, since there was no defect, Petitioner's appeal was dismissed for "Want of ,.•&,- Jurisdiction" on September 3, 2015. With the only remedy being to seek relief from this Honorable Court, Petitioner filed a Motion for Extension of Time to File Petition for Discretionary Review on September 29, 2015. Said request was granted and the deadline was extended to December 4, 2015. In accordance with the "prison mailbox rule," this Petition is hereby timely filed.
LThis space intentionally left blank]
iv.
ISSUE PRESENTED FOR REVIEW:
1. The Court of Appeals for the Thirteenth District of Texas erred in dismis sing Petitioner's appeal from the denial of his Motion for Appointment of Counsel for Habeas Corpus, where said dismissal was not based on the facts of Petitioner's appeal, but rather that of another, unrelated Appellant.
STATEMENT OF FACTS:
On June 12, 2015, Petitioner filed a Motion For Appointment of Counsel For Habeas Corpus, Under Texas Fair Defense Act, Article 1.051 V.A.C.C.P., as well as a Declaration of Inability to Pay Cost, in support of his need for the appointment of counsel, as he is unable to afford to retain such counsel. On June 19, 2015, the trial court denied Petitioner's motion, in a general denial that was non-specific as to why it was being denied. Petitioner timely filed his Notice of Appeal on July 15, 2015, along with the other necessary motions to pursue appeal; such as Request for Designation of Court Reporter's Record and Request for Designation of Clerk's Record.
On July 28, 2015, Petitioner received a letter from the Thirteenth Cou rt of Appeals, dated July 24, 2015, stating that "it appears that the appeal has not been timely perfected." Upon receving that letter, Petitioner sent a back to the Court of Appeals, letting them know that everything had in fact been timely filed up to that point. On August 6, 2015, Petitioner received another letter from the Thirteenth Court of Appeals, this time claiming that it now "appears that there is no final, appealable order." Said letter further stated that if the defect was not corrected within ten days of the receipt to that letter, the appeal would be dismissed for want of jurisdiction. Since Petitioner is in possession of the trial court's order denying his motion, he waited for such dismissal, so that he could file this petition, in hopes of correcting the errors of the Court of Appeals, as well as the trial court.
On September 3, 2015, the Thriteenth Court of Appeals dismissed the appeal for "Want of Jurisdiction." Petitioner thereby sought an extension of time from this Honorable Court to file this Petition for Discretionary Review, which was granted on October 8, 2015, extending the deadline to December 4, 2015.
2
In the opinion issued by the Thirteenth Court of Appeals, the Court stated that Petitioner "attempts to appeal the May 20, 2015 decision of the Texas Court of Criminal Appeals' denying his petition for writ of habeas corp us under article 11.07 of the Texas Code of Criminal Procedure in cause number WR-64,680-03. Specifically, the Court of Criminal Appeals "denied without wri tten order the application for writ of habeas corpus on the findings of the trial court without a hearing." (See attached EXHIBIT A, pgs. 1-2).
As stated above, Petitioner is appealing the denial of his Motion for Appointment of Counsel for Habeas Corpus, not an 11.07 - Writ of Habeas Corpus. As this Honorable Court's records will show, Petitioner has not yet filed an application for Writ of Habeas Corpus - 11.07. the Court will also notice that the writ number WR-64,680-03, cited in the Court of Appeals opinion, does not belong to Petitioner, but rather a Phillip Bernard Jackson.
Petitioner's appeal has obviously been dismissed in error, and should be remanded back to the Court of Appeals for further proceedings, if not back to the trial court with an order to appoint counsel.
L This Space Intentionally Left Blank j
3
ISSUE ONE - (restated):
The COurt of Appeals for the Thirteenth Distrcit of Texas erred in dismissing Petitioner's appeal from the denial of his Motion for Appointment of Counsel for Habeas Corpus, where said dismissal was not based on the facts of Petitioenr's appeal, but rather that of another, unrelated Appellant.
To be straight forward and to the point, what this case amounts to is a terrible confusion on the part of the Thirteenth Court of Appeals of Texas. They have obviously gotten Petitioner's appeal mixed up with that of another appellant; specifically that of a Phillip Bernard Jackson. Petitioner is not sure how a Court of that magnitude would make such a tremendous error, but perhaps as humans we are all capable of making mistakes.
As stated above in the Statement of Facts, the Thirteenth Court of App eals dismissed Petitioner's appeal for "Want of Jurisdiction." The Court of Appeals claimed that Petitioner was appealing the denial of his petition for a writ of habeas corpus. With that false understanding and error on the part of the Court of Appeals, Petitioner would agree that said court would not have an allowable jurisdiction to hear such an appeal. Petitioner understands that you would not appeal a higher court's decision to a lower court. That simply would not make any sense, and that is not what Petitioner has done.
Petitioner is attempting to appeal the denial by the trial court of his Motion for Appointment of Counsel for Habeas Corpus, under Texas Fair Defense Act, Article 1.051, V.A.C.C.P.; even more applicable by the recent enactment of Article 11.074.
The reinstatement of Petitioner's appeal should be a given in this case, considering the fact that the Court of Appeals erred in dismissing it in the first place. However, Petitioner further requests this Honorable Court to take JUDICIAL NOTICE of Petitioner's right to the appointment of counsel for habeas corpus, in this case, where Petitioner has substantial claims of ineffective assistance of counsel at trial.
AUTHORITY FOR APPOINTMENT OF COUNSEL:
The trial court is authorized by Article 1.051(d)(3), Texas Code of Criminal Procedure, to appoint an attorney to represent the Petitioner in this
4
matter, if he is indigent and the Court concludes the interests of justice require representation. TEX.CODE CRIM.PROC.ANN., Art. 1.051(d)(3)(Vernon's 2014). See Beard v. State, 243 S.W.3d 783, 786 n.3 (Tex.App.-Amarillo 2007).
Section 24. 016 of the Texas Government Code also authorizes the trial court to appoint counsel to represent an indigent civil litigant in exception al cases in which the public and private interests at stake are such that the administration of justice may be best served by the appointment. TEX.GOV'T COD ANN., Sec. 24.016 (Vernon's 2014). See Traveler's Indoor Co. v. Mayfield. 923 S.W.2d 590, 593 (Tex. 1996); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex.App.- Waco 2002). See also Talbort v. Gibson, 67 S.W.3d 368, 372 (Tex.App. - Waco 2001)(incarceration of indigent "primary exceptional factor" warranting appoi ntment of counsel due to fact that incarceration creates significant limitati on upon litigant's ability to conduct adequate investigation and obtain evide nce supporting his claim); and Ex parte Rieck, 144 S.W.3d 510, 515-516 (Tex. Crim.App. 2004)(habeas corpus proceedings, including those seeking relief from confinement in criminal justice system generally considered to be "civil" in nature).
Recent decisions by the United States Supreme Court indicate that the interests of justice warrant the appointment of counsel in this case, by the trial court, for the purpose of representing Petitioner in meaningfully seeki ng initial collateral review and adjudication on the merits of his substantial claims of ineffective assistance of trial counsel.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that a "procedural bar" by default would not prevent a federal court from hearing a substantial claim of ineffective assistance of trial counsel if, in the State initial review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective. The Court explained that, because initial review in a collateral proceeding of a prisoner's ineffective assistance of trial counsel claim is in many ways the equivalent of his Direct Appeal as to that claim, if ten State does not appoint an attorney to assist the indigent priso ner in the initial review collateral proceeding, he is denied fair process and the opportunity to comply with the State's procedures and obtain an adjudicat ion on the merits of his claim, similar to instances in which no attorney is appointed to pursue the Direct Appeal or in which the attorney appointed to pursue Direct Appeal is ineffective.
5
Subsequent to the Martinez decision, the Supreme Court decided a Texas case similar to that of Martinez with the same results. See Trevlno v. Thaler, 133 S.Ct. 1911 (2013). In Trevino, the Supreme Court concluded that where, as in Texas, the state procedural framework, by reason of its design and operati on, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on Direct Appeal, the Court holding in Martinez applies. See also Ibarra, 723 F.3d 599 (5th Cir. 2013).
SUBSTANTIAL CLAIMS OF INEFFECTIVE ASSISATNCE
OF COUNSEL EXTANT IN THIS CASE:
Substantial claims of ineffective assistance of counsel exist in this case based on, but not limited to, the following errors/omissions by trial counsel and appellate counsel:
• Failure to object to admittance of video interview of involuntary statements. • Failure to call exculpatory witnesses, as defendant rewuested.
• Failure to object to use of State's evidence that was not timely provided to the defense.
• Calling witness who had nothing probative to offer, but whose testimony was damaging to the defense. • Failure to object to prosecutorial misconduct of vouching and bolstering the credibility of witness (victim) in closing argument. • Failure to object to sentence imposed as excessive and disproportionate. • Failure to raise viable and/or preserved issues on Direct Appeal.
GUIDANCE OF OUR FOREFATHERS:
Petitioner hereby respectfully requests this Honorable Court to be min dful that the paramount focus in this particular judicial matter "is not the LDefendant'sj innocence or guilt, but solely whether Lhis] constitutional rig hts have been preserved." Accord Moore v. Dempsey, 261 U.S. 86, 87-88 (1923); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961)(habeas corpus relief availab le to redress due process violations "regardless of the heinousness of the crime [and] the apparent guilt of the offender"); Ex parte Millingan, 71 U.S. (4 Wall.) 2, 118-19 (1866)("U3t is the birth-right of every American citizen
6
when charged with a crime, to be tried and punished according to the law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from puni shment, no matter how great an offender an individual may be, or how much his crime may have shocked the sense of the country, or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamours of an excited peo ple.").
DEFENDANT IS INDIGENT:
Defendant continues to be indigent and unable to retain the services of a licensed attorney, to represent him in pursuit of appellate review of his substantial claims of ineffective assistance of trial counsel.
CONCLUSION:
It is quite obvious that Petitioner's appeal from the denial of his Motion for Appointment of Counsel for Habeas Corpus was dismissed in error. It is apparent that the Thirteenth Court of Appeals of Texas mistakenly confused Petitioner's appeal with that of another appellant, thereby finding that it did not have jurisdiction to hear Petitioner's appeal. Such a finding was in error and must be corrected, as the interests of justice require such.
PRAYER:
WHEREFORE, PREMISES CONSIDERED, Petitioner asserts that the Court of Appeals for the Thirteenth District of Texas erred in dismissing his apeal of the denail of his Motion for Appointment of Counsel for Habeas Corpus. Petiti oner prays this Honorable Court will GRANT discretionary review and find that the Court of Appeals erred.
Petitioner further prays this Honorable Court will take judicial notice of his right to be appointed counsel for habeas corpus, and order the trial court to appoint counsel to assist him in pursuing his substantial claims of ineffective assistance of trial counsel.
In the very least, Petitioner prays this Honorable Court will order the Court of Appeals for the Thirteenth District Court of Appeals to reinstate his appeal from the trial court's denial of his Motion for Appointmant of Counsel
7
for Habeas Corpus.
Petitioner prays for general relief and any other relief which he may be entitled/given.
INMATE DECLARATION:
I, Isaac Gonzalez, TDCJ # 1809453, being presently incarcerated at the French M. Robertson Unit of the Texas Department of Criminal Justice in Jones County, Texas; do hereby verify and declare under penalty of perjury that ALL statements and other references made within this PETITION are both true and correct, as well as offered in good faith.
[Tex.Civ.Prac.& Rem.Code § 132.001-003 et seq./Title 28 U.S.C. § 1746]
(A signed/dated copy of this raiuON shall have the sane validity as its original) SIGNED AND EXECUTED on this the 3rd day of December, 2015.
RESPECTFULLY SUBMITTED,
Petitioner, Isaac Gonzalez # 1809453 French M. Robertson Unit
12071 F.M. 3522 Abilene, Texas 79601
(325) 548-9035
CERTIFICATE OF SERVCIE:
The above signer hereby certifies that a true and correct copy of the foregoing ISAAC GONZALEZ'S PETITION FOR DISCRETIONARY REVIEW has been forward ed to ALL parties in this matter, via 1st Class U.S. Mail, Postage Pre-paid, deposited in the outgoing prison mailbox on this the 3rd day of December, 2015; addressed to:
• Abel Acosta, Clerk • Stephen B. Tyler, Dist. Attorney Texas Court of Criminal Appeals Victoria County, Texas P.O. Box 12308 205 N. Bridge St., Suite 301 Capitol Station Victoria, Texas 77901 Austin, Texas 78711
c
• Attorney General of Texas (State Prosecuting Attonrey) P.O. Box 12017 Austin, Texas 78711
IG/awr-File
APPENDIX
- EXHIBIT A - Memorandum Opinion 13th Court of Appeals No. 13-15-00334-CR September 3, 2015 (3 pages)
-J
NUMBER 13-15-00334-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ISAAC GONZALEZ, APPELLANT,
THE STATE OF TEXAS, APPELLEE.
On Appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria Memorandum Opinion Per Curiam
Appellant, Isaac Gonzalez, proceeding pro se, attempts to appeal the May 20,
2015 decision of the Texas Court of Criminal Appeals' denying his petition for writ of
habeas corpus under article 11.07 of the Texas Code of Criminal Procedure in cause
number WR-64,680-03. Specifically, the Court of Criminal Appeals "denied without written order the application for writ of habeas corpus on the findings of the trial court
without a hearing."
On August 3, 2015, the Clerk of this Court notified appellant that it appeared that
the order from which the appeal was taken was not an appealable order, and requested
correction of this defect within ten days or the appeal would be dismissed. Appellant has
failed to respond to the Court's directive.
As a general rule, an appeal in a criminal case may be taken only from a judgment
of conviction. See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961).
However, there are certain narrow exceptions. Wright v. State, 969 S.W.2d 588, 589
(Tex. App.—Dallas 1998, no pet.) (listing exceptions). The order appellant complains of
is not a judgment of conviction nor does it fall within any exception to the general rule.
See id. Moreover, this court has no jurisdiction in criminal law matters pertaining to
habeas corpus proceedings seeking relief from final felony convictions. See Tex. Code
Crim. Proc. Ann. art. 11.07 § 3 (West, Westlaw through Ch. 46 2015 R.S.).
The Court, having examined and fully considered the documents on file and
appellant's failure to respond to this Court's notice, is of the opinion that the appeal should
be dismissed for want of jurisdiction. Accordingly, the appeal is hereby DISMISSED
FOR WANT OF JURISDICTION. Pending motions, if any, are likewise DISMISSED.
PER CURIAM
Do not publish, Tex. R. App. P. 47.2(b).
Delivered and filed the 3rd day of September, 2015.
THE THIRTEENTH COURT OF APPEALS
13-15-00334-CR
Isaac Gonzalez
v.
The State of Texas
On Appeal from the
24th District Court of Victoria County, Texas Trial Cause No. 12-3-26,449-A
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed for want of jurisdiction. The Court
orders the appeal DISMISSED FOR WANT OF JURISDICTION in accordance with its
opinion.
We further order this decision certified below for observance.
September 3, 2015
APPENDIX
- EXHIBIT B -
DOCKET SHEET
Case No. WR-64,680-03 Shows Wrong Facts Applied To This Case (1 Page)
Court of Criminal Appeals Docket Sheet Case Number: WR-64,680-03 Date Filed: 04/16/2015 2:55PM
Style: Applicant JACKSON, PHILLIP
Original Proceeding: No
Case Description: 11.07 HC
Punishment: 12 YEARS; $110 COURT COSTS BondAmount: In Jail: False
Trial Court Information
County Court Name Case# Judge Court Reporter Nueces 105th District 00-CR-2318-D ; Court
COA Information
COA Case Number Published Cite COAJudge Disposition Code 13-03-000495-CR
Events and Opinions
Event Date Stage Event i Event ;Disposition :Grouping : Order Submis fDescription |Type sion
09/24/2015 IHABEAS MISC •WRIT ']
,
CORPUS REC DOCUMENT '-1107-HC RECD
05/20/2015 HABEAS ACTION WRIT HCRDEN/NH HCDEN CORPUS REC TAKEN EAR W/O ORD -1107-HC ONTC FIND W/O HRG
04/22/2015 HABEAS WRIT CORPUS REC SUBMITTED I- 1107-HC
04/16/2015 jHABEAS 'WRIT WRIT ]CORPUS REC ^RECEIVED ;- 1107-HC
Report Prepared on: 10/6/2015 2:32:40 PM 1 of 1
Isaac Gonzalez # 1809453 French M. Robertson Unit 12071 F.M. 3522 Abilene, Texas 79601 P|\/|
DEC ^ 7 DEC 7 ; 2015 I 20] f;
£.:.»:'-•V^wMjji^i^S^l'filasSii^ i!!^
ABEL ACOSTA, CLERK
TEXAS COURT OF CRIMINAL APPEALS P.O. BOX 12308 CAPITOL STATION AUSTIN, TEXAS
78711