_q§,aOLJ/(Bw
CAUSE NO; 007-0405-09-D
Ex PARTE § IN THE TEXAS coURT oF § cRIMINAL APPEALS §§ECEWED m DONALD MARGRAVES § AUSTIN» TEXA‘?:GURT oFchmN/\LAPPEALS _BRIEF 0PP0$1NG RECOWE§DATION oF sMITH coUNTY - ` MAY 26 2015
DISTRICT ATTORNEY TO "§UCCESSIVE APPLICATION" FOR WRIT OF HABEAS CORPUS '
AboBAsosia,CEezk TO THEJHONORABLE COURT OF.€RIMINAL APPEALS:
COMES`NOW, Donald Margraves, TDCJ #1585203, Applicant pro se, and submits this Brief Opposing Recommendation by Smith County District Attorney to what he says is a "Successive Application" for Writ of Habeas Corpus. Applicant will show this Honorable Court that, in accordance with pm£eizt case law, this application is NOT successive and that Applicant has met his burden under app- licable law to the Subsequent writ bar'found in Texas Code of Criminal Proc- edure, Article 11.07, section 4, the very statute used to bar this application. Applicant submitted a Memorandum in Support along with his writ application, which memorandum quotes precedent case law.that Supports his contention of facts found herein. Applicant will point out Specific case law in this brief t that will help this Court to determine an appropriate decision in this matter. Applicant also raised a claim of "Actual Innocence" of the status of Habitual Offender, which can be raised at any time.
(1) APPLICANT HAS NEVER CHALLENGED HlS CONVICTION.
ln Applicant's first application for relief, filed under Article 11.07, Applicant questioned only the affirmative finding of deadly weapon. Not a leg- ally sufficient "challenge toithe conviction". See Ex Parte Rawlinson, 958 SW 2d 198 (Iex.Crim.App. 1997), where the applicant sought to have the deadly wea- pon removed. At first this was ruled as a challenge to his conviction. Four months later, Ex Parte Evans, 964 SWZd 643 (Tex.Crim.App. 1998), en banc, was decided in which this Court stated, "We now disavow that language". "lt seems clear that, regardless of whether the prior claims were addressed on their mer- its, the issue is whether the prior claims constituted an attack on the conv- iction". §y§n§, @ 646, footnote 4, specifically addressing Rawlinson. This Court Said that their previous decision in Rawlinson was erroneous. The challenge to
deadly weapon allegation did not "present a claim regarding the validity of the
prosecution or the finding of guilt", and therefore, was not`a "challenge to the conviction". Article 11.07 § 4 should exclude matters such as affirmative findings from the ambit of'the section because an affirmative finding issue does not call into question the validity of the prosecution or the finding of guilt; rather it questions issues arising after the completion of the actual prosecution itself. lt does not alter the verdict or the actual punishment assessed; it only affects the defendant's eligibility for parole. Furthermore, in Ex Parte Kerr, 64 Sw3d 414 (Tex.Crim.App. 2002), this Court stated, "lf a writ of habeas corpus does not challenge the validity of the underlying judge- ment and would not result in immediate relief..., even if meritorious, it is not an initial application for purposes of statute which generally bars consid- eration of a subsequent writ after filing the initial application". Although §g££_was a death penalty case, and filed under Article 11,071, there is a similar Situation present. Again, this Court stated, "To constitute a document worthy l of the title §writ application§ filed pursuant to Article 11.0]1, the writ must seek irelief from a judgement imposing the death penalty'. A death penalty writ that does not challenge the validity of the underlying judgement and which, even if meritorious, would not result in immediate relief from his capital murder» Canviction or death sentence, is not an 'initial application' for purposes of Article 11.071 § 5 which generally bars consideration of the subsequent writ after the initial application. This same rule applies to non-capital writs b filed under Article 11.07. See Ex Parte Evans, 964 SWQd 643, 646-47 (Tex.Crim. App. 1998)." tx Parte Kerr, 64 Sw3d 414 (Tex.cr'im.App. 2002).'
Applicant has cited.many other cases in his memorandum that support this contention of what this Court calls "initial'application"; See Ex Parte Santana, 227 SW3d 700, 703 (Tex.Crim.App. 2007); Ex Parte Whiteside, 12 SW3d 819, 823 (Tex,Crim.App. 2000)3 Ex Parte McPherson, 32 SW3d 869 (Tex.Crim.App 2000); and Crone v. Cockrell, 324 F.3d 833 (5th Circuit 2003)§ §§9§§ states, "A prisoner's habeas corpus application is not 'second or successivei simply because it follows an earlier petition".
lhe Court of Criminal Appeals stated, "Both the definition of conviction and this Court's case law regarding writ applications lead us to the conclusion that the precedural bar of § 4 is limited to instances in which the initial applic- ation raises claims regarding the validity of the prosecution or the judgement of guilt. lt does not apply to claims regarding other matters, such as parole `
revocations or affirmative findings of deadly weapon. We conclude that the plain
language of § 4 unambiguous and does not lead to absurd results." _
Finally, while it is true that claims regarding the affirmative finding of deadly weapon, as well as parole revocation hearings are cognizable under Art- icle 11407, this is the proper avenue to challenge such decisions. See Board of Pardons and Paroles ex rel Keene v. Court of Appeals for the 8th District, 910 Sw2d 481, 488 (Tex.Crim.App. 1995). ln order to raise these claims pertaining to trial matters, an applicant must file his application in the court and county in which he is convicted. Ex Parte Woodward, 619 SWZd 179 (Tex.Crim.App. 1981); Ex Parte Alexander, 861 SWZd 921, 922 (Tex.Crim.App. 1993). Thus,'inaa general Sense, an applicant files a writ application attacking the judgement of conv- iction which has resulted in his confinement, regardless of the context of his actual claims. Woodward, 619 SWZd @ 179. Thus; although Applicantis claim of improper deadly weapon finding is cognizable under Article 11.07 § 1, it is not a challenge to the conviction under Article 11.07 § 4, because it does not call into question the validity of the prosecution or the judgement of guilt. Thus, Applicant is completely excepted from the ambit of Article 11.07 § 4 since this is NOT a successive application for habeas relief. The above-cited case law is found in Applicantis memorandum in support, pages 33-40.
Article 11.07 § 4(a) specifically states:'lf a subsequent application for~ writ of habeas corpus is filed after the final disposition of an initial appli- cation challenging the`same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application con- tains sufficient specific facts establishing that: (1) the current claims and issues have not and could not have been presented previously in an original app- lication or inza previously considered application filed under this article be- cause the factual or legal basis for the claim was unavailable on the date the applicantnfiled the application;_g£ (2) by a preponderance_of the evidence, but for a violation of the U.S. Constitution no rational juror could;have found the applicant guilty beyond a reasonable-doubt. (emphasis added). Section 5 adds: The Court of Criminal Appeals mgy_direct that the cause be docketed and heard as originally presented to said court or as an appeal. (emphasis added). By this clear meaning of § 4, Applicant's current writ application is NOT "successive" and should be decided on its merits.
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_q§,aOLJ/(Bw
CAUSE NO; 007-0405-09-D
Ex PARTE § IN THE TEXAS coURT oF § cRIMINAL APPEALS §§ECEWED m DONALD MARGRAVES § AUSTIN» TEXA‘?:GURT oFchmN/\LAPPEALS _BRIEF 0PP0$1NG RECOWE§DATION oF sMITH coUNTY - ` MAY 26 2015
DISTRICT ATTORNEY TO "§UCCESSIVE APPLICATION" FOR WRIT OF HABEAS CORPUS '
AboBAsosia,CEezk TO THEJHONORABLE COURT OF.€RIMINAL APPEALS:
COMES`NOW, Donald Margraves, TDCJ #1585203, Applicant pro se, and submits this Brief Opposing Recommendation by Smith County District Attorney to what he says is a "Successive Application" for Writ of Habeas Corpus. Applicant will show this Honorable Court that, in accordance with pm£eizt case law, this application is NOT successive and that Applicant has met his burden under app- licable law to the Subsequent writ bar'found in Texas Code of Criminal Proc- edure, Article 11.07, section 4, the very statute used to bar this application. Applicant submitted a Memorandum in Support along with his writ application, which memorandum quotes precedent case law.that Supports his contention of facts found herein. Applicant will point out Specific case law in this brief t that will help this Court to determine an appropriate decision in this matter. Applicant also raised a claim of "Actual Innocence" of the status of Habitual Offender, which can be raised at any time.
(1) APPLICANT HAS NEVER CHALLENGED HlS CONVICTION.
ln Applicant's first application for relief, filed under Article 11.07, Applicant questioned only the affirmative finding of deadly weapon. Not a leg- ally sufficient "challenge toithe conviction". See Ex Parte Rawlinson, 958 SW 2d 198 (Iex.Crim.App. 1997), where the applicant sought to have the deadly wea- pon removed. At first this was ruled as a challenge to his conviction. Four months later, Ex Parte Evans, 964 SWZd 643 (Tex.Crim.App. 1998), en banc, was decided in which this Court stated, "We now disavow that language". "lt seems clear that, regardless of whether the prior claims were addressed on their mer- its, the issue is whether the prior claims constituted an attack on the conv- iction". §y§n§, @ 646, footnote 4, specifically addressing Rawlinson. This Court Said that their previous decision in Rawlinson was erroneous. The challenge to
deadly weapon allegation did not "present a claim regarding the validity of the
prosecution or the finding of guilt", and therefore, was not`a "challenge to the conviction". Article 11.07 § 4 should exclude matters such as affirmative findings from the ambit of'the section because an affirmative finding issue does not call into question the validity of the prosecution or the finding of guilt; rather it questions issues arising after the completion of the actual prosecution itself. lt does not alter the verdict or the actual punishment assessed; it only affects the defendant's eligibility for parole. Furthermore, in Ex Parte Kerr, 64 Sw3d 414 (Tex.Crim.App. 2002), this Court stated, "lf a writ of habeas corpus does not challenge the validity of the underlying judge- ment and would not result in immediate relief..., even if meritorious, it is not an initial application for purposes of statute which generally bars consid- eration of a subsequent writ after filing the initial application". Although §g££_was a death penalty case, and filed under Article 11,071, there is a similar Situation present. Again, this Court stated, "To constitute a document worthy l of the title §writ application§ filed pursuant to Article 11.0]1, the writ must seek irelief from a judgement imposing the death penalty'. A death penalty writ that does not challenge the validity of the underlying judgement and which, even if meritorious, would not result in immediate relief from his capital murder» Canviction or death sentence, is not an 'initial application' for purposes of Article 11.071 § 5 which generally bars consideration of the subsequent writ after the initial application. This same rule applies to non-capital writs b filed under Article 11.07. See Ex Parte Evans, 964 SWQd 643, 646-47 (Tex.Crim. App. 1998)." tx Parte Kerr, 64 Sw3d 414 (Tex.cr'im.App. 2002).'
Applicant has cited.many other cases in his memorandum that support this contention of what this Court calls "initial'application"; See Ex Parte Santana, 227 SW3d 700, 703 (Tex.Crim.App. 2007); Ex Parte Whiteside, 12 SW3d 819, 823 (Tex,Crim.App. 2000)3 Ex Parte McPherson, 32 SW3d 869 (Tex.Crim.App 2000); and Crone v. Cockrell, 324 F.3d 833 (5th Circuit 2003)§ §§9§§ states, "A prisoner's habeas corpus application is not 'second or successivei simply because it follows an earlier petition".
lhe Court of Criminal Appeals stated, "Both the definition of conviction and this Court's case law regarding writ applications lead us to the conclusion that the precedural bar of § 4 is limited to instances in which the initial applic- ation raises claims regarding the validity of the prosecution or the judgement of guilt. lt does not apply to claims regarding other matters, such as parole `
revocations or affirmative findings of deadly weapon. We conclude that the plain
language of § 4 unambiguous and does not lead to absurd results." _
Finally, while it is true that claims regarding the affirmative finding of deadly weapon, as well as parole revocation hearings are cognizable under Art- icle 11407, this is the proper avenue to challenge such decisions. See Board of Pardons and Paroles ex rel Keene v. Court of Appeals for the 8th District, 910 Sw2d 481, 488 (Tex.Crim.App. 1995). ln order to raise these claims pertaining to trial matters, an applicant must file his application in the court and county in which he is convicted. Ex Parte Woodward, 619 SWZd 179 (Tex.Crim.App. 1981); Ex Parte Alexander, 861 SWZd 921, 922 (Tex.Crim.App. 1993). Thus,'inaa general Sense, an applicant files a writ application attacking the judgement of conv- iction which has resulted in his confinement, regardless of the context of his actual claims. Woodward, 619 SWZd @ 179. Thus; although Applicantis claim of improper deadly weapon finding is cognizable under Article 11.07 § 1, it is not a challenge to the conviction under Article 11.07 § 4, because it does not call into question the validity of the prosecution or the judgement of guilt. Thus, Applicant is completely excepted from the ambit of Article 11.07 § 4 since this is NOT a successive application for habeas relief. The above-cited case law is found in Applicantis memorandum in support, pages 33-40.
Article 11.07 § 4(a) specifically states:'lf a subsequent application for~ writ of habeas corpus is filed after the final disposition of an initial appli- cation challenging the`same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application con- tains sufficient specific facts establishing that: (1) the current claims and issues have not and could not have been presented previously in an original app- lication or inza previously considered application filed under this article be- cause the factual or legal basis for the claim was unavailable on the date the applicantnfiled the application;_g£ (2) by a preponderance_of the evidence, but for a violation of the U.S. Constitution no rational juror could;have found the applicant guilty beyond a reasonable-doubt. (emphasis added). Section 5 adds: The Court of Criminal Appeals mgy_direct that the cause be docketed and heard as originally presented to said court or as an appeal. (emphasis added). By this clear meaning of § 4, Applicant's current writ application is NOT "successive" and should be decided on its merits. If Applicant somehow is held to the dic- tates of section 4, he complies by satisfying the above-emphasised portion, preponderance of the evidence. Applicant has provided the record as Exhibit A,
which was called State's #1 used against Applicant in court on June 29, 2009.
lt is clear that Applicant was not proven to be an habitual offender. His priors were not proven to be "final" convictions to allow their use as enhancements in the sentencing phase of the instant charge of DWl. See memorandum in.support, . pages 20-29, Thus, applicant has filed this innocence claim, claiming he is innocent of habitual offender status.
According to Article 11.07 § 5, this Honorable Court may_direct that the cause be docketed and heard. Applicant respectfully requests the Court to consider his current 11.07 application, docket the cause and hear the matter on its merits. instead of following the recommendation of the trial judge, who was lead astray by the Smith County Assistant District Attorney's erroneous recommendation and incorrect quotes of the 11. 07 statute, specifically section 4.
Further, Applicant respectfully directs the Honorable Court to the State' s Answer To Successive Application For Writ Of Habeas Corpus, pages 84-88 of writ package submitted by the 7th District Court of Smith County, Texas; specifically page 86 (top) where the Smith County D. A. erroneously quotes 11. 07§ 4, in which the D.A. leaves out important statute wording (i.e,,' 'challenging the conviction' '). lhe D.A. further goes on to misquote section 4 by inserting words of his own choosing (i.e., "regarding the same convictionT). lhe statute is clear, "chall- enging the same conviction". The Smith County D.A; has essentially changed the entire emaning of the statute (section 4) to disallow ALL second or successive applications. lhat was not the intention of the legislators\when they enacted the section. The D.A. goes on to misquote Ex Parte Whiteside, 12 SW3d 819, 820 (Tex.Crim.App. ZOOO) by saying, on page 86, "subsequent applications include all applications for writs of habeas corpus regarding the same convictionv, when Whiteside actually says, "Under the plain language of the statute, once an app- licant files an application challenging the conviction;`all subsequent applica-
tions regarding the same conviction must meet one of the conditions set forth
n § 4(a)(1) or (2). lhese misquotes are deliberate and may be confusing to the judge if taken at their meaning by the D.A. lt is for this reason, Applicant respectfully requests.the Honorable Court to hold a hearing on this cause and¢ determine the appropriate action on the merits contained therein. Applicant avers that he does not intend this request to harass, vex or delay the Court. He
only wants justice served in this instant cause@
PRAYER WHEREFORE, PREMlSES CONSlDERED, Applicant Donald Margraves prays that the
Honorable Court of Criminal Appeals in Austin, lexas will docket the above
cause and hear the cause on its merits and make appropriate determination that Applicant has never challenged his conviction and,¥therefore, accept this 11.07 application as non-successive. Applicant prays for relief as requested in the -
application and all other general relief as the Court sees appropriate and just.
'Respectfully,
Donald Margrave #1585203 Dalhart Unit ' ‘11950 FM 998
Dalhart, Texas 79022
CERTlFlCATE OF SERVICE
l, Donald_Margraves, Applicant pro se, hereby certify that a copy of my Brief Opposing Recommendation of Smith County District Attorney to "Successive` Application"for Writ of Habeas Corpus was served by U.S. Mail, on May 20, 2015 by placing same in the care of Dalhart Unit mail-room personnel, postage pre-3
paid, first class, and properly addressed as follows.
Court of Criminal Appeals P.O. Box 12308
Capitol Station
Austin, Texas 78711
Donald Margraves H5585203