Hamer, Richard

• Court: Court of Appeals of Texas
• Decided: October 29, 2015
• Docket: WR-84,092-01
• Status: Published

Opinion

WR-84,092-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/29/2015 10:06:52 AM Accepted 10/29/2015 10:16:22 AM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK FOR THE STATE OF TEXAS AUSTIN, TEXAS RECEIVED COURT OF CRIMINAL APPEALS 10/29/2015 ABEL ACOSTA, CLERK EX PARTE § § § NO. WR-84,092-01 § RICHARD HAMER §

APPLICANT’S OBJECTIONS TO FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES the Applicant, RICHARD HAMER, and submits the following

objections to the Findings of Fact, Conclusions of Law and Order entered in this case and

would show the Court the following:

I.

The trial court failed to enter any independent findings or conclusions in this case.

Rather, the trial court simply signed an order adopting the state’s proposed findings. Art.

11.07, Tex. Code Crim. Proc. requires the Court to make its own findings, and not simply

rubberstamp what the state proposes.

II.

The trial court signed the state’s findings after the state obtained an affidavit from

defense counsel for Applicant in the trial court. Applicant was not given an opportunity to

respond to the affidavit. A response to the affidavit of defense counsel has been filed.

Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 1 III.

Moreover, an evidentiary hearing is necessary in this case. Applicant has raised issues

in this writ application regarding ineffective assistance of counsel. An affidavit from counsel

has been presented. However, Applicant requests an evidentiary hearing where he will have

an opportunity to cross-examine counsel for Applicant. Ex parte Byars, 176 S.W.3d 841

(Tex. Crim. App. 2005) (Presiding Judge Keller recognizing that the most effective way of

determining the reliability of witness testimony is through the crucible of cross-examination).

IV.

Additionally, Applicant objects on the basis that the Court has not seriously

considered, or adequately analyzed, his arguments.

Ground One alleged that Hamer received ineffective assistance of counsel. He was

involved in a vehicle accident that resulted in the death of another person. Defense counsel

advised Hamer to enter an open plea of guilty to manslaughter to the court and allow the

court to set punishment. The court set punishment at 15 years in prison. There was a

legitimate and meritorious defense to be presented to the manslaughter charge which defense

counsel did not present. This defense was that, if Hamer was guilty at all, it was of the

offense of criminally negligent homicide, rather than manslaughter.

Counsel was ineffective in advising Hamer to plead guilty to manslaughter and not

fully explaining his options to him. Had counsel fully explained the evidence and difference

between the charges of manslaughter and criminally negligent homicide, Hamer would not

have entered a plea to manslaughter. Had counsel fully explained the evidence in this case,

Hamer would have entered a not guilty plea and taken the case to trial. Under the facts of Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 2 this case, Hamer would not have been found guilty of manslaughter or received 15 years in

prison.

Ground Two alleged that Hamer’s guilty plea was involuntary. In the case at bar,

Hamer entered a guilty plea without knowing what the State was required to prove and

without knowing that the evidence in fact showed that he was guilty only of the lesser

offense of criminally negligent homicide. He was clearly not aware of the full circumstances

concerning the law and facts of this case and therefore his plea should be set aside. Hamer

would not have entered the plea in this case had he been fully aware of all of the facts, law

and circumstances.

A guilty plea must be voluntarily and knowingly entered in order to be valid. When

a court entertains a plea agreement, it must assure itself that the plea is entered voluntarily

and knowingly. A defendant is required to be informed of all of the direct consequences of

the plea. See Fielder v. State, 834 S.W.2d 509 (Tex. App. - Ft. Worth 1992); Ex parte

Chandler, 684 S.W.2d 700 (Tex. Crim. App. 1985).

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970), the Court stated the

following:

“That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so--hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial--a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 3 In the case at bar, Hamer was not aware of the full consequences of his plea and the

fact that, if he was guilty, it was only a lesser offense. Thus, his plea was involuntary.

V.

Based on the foregoing, Applicant prays that the Court reject the findings, conclusions

and order in this case.

Respectfully submitted,

/s/ Gary A. Udashen GARY A. UDASHEN Bar Card No. 20369590

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 fax

Attorney for Applicant

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the foregoing Applicant’s Objections to Findings of Fact, Conclusions of Law and Order was mailed to the Harris County District Attorney’s Office, 1201 Franklin Street, Suite 600, Houston, Texas 77002, on this the 29th day of October, 2015.

/s/ Gary A. Udashen GARY A. UDASHEN

Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 4