Medrano, Edward Fernandez

• Court: Court of Appeals of Texas
• Decided: June 12, 2015
• Docket: PD-0718-15
• Status: Published

Opinion

PD-0718&0719-15 RECEIVED m COURT OF CRIMINAL APPEALS Edward Medrano #1790103 Dalhart Unit TDCJ JUN 11 2015 11950 FM 998 Dalhart, Texas 79022 AbelAcosta,Clerk June ,.2015

Abel Acosta P.O. Box 12308/ Capitol Station Austin, Texas 78711-2308

RE: Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR Trial Court Cause Nos. CR-35988 & CR-36058

Sub: Motion for Out-Of-Time. Pro Se Petition for Discretionary Review with Attachment-A

Dear Clerk:

Enclosed please find for filing Petitioner's Motion for Out-Of- Time Pro Se Petition for Discretionary Review. Please file date stamp and bring to the attention of the Court.

Also enclosed, is a copy of this letterhead. Please file date same and return in the provided self addressed stamped envelope.

Thank you for your assistance on this matter.

Sincerely, Cn/|DT ^{-£0 IN CRIMINAL APPEALS

Edward Medrano #1790103 G ^Cos^. C/erk Petitioner Pro Se

EFM/ cc: Teresa Clingman, 500 N. Loraine, 2nd Fl., Midland, Texas 79701 FILE

Enclosures: Copy of letterhead Self addressed stamped envelope Edward Medrano #1790103 Dalhart Unit TDCJ 11950 FM 988 Dalhart, Texas 79022

June , 2015

Abel Acosta P.O. Box 12308, Capitol Station Austin, Texas 78711-2308

RE: Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR Trial Court Cause Nos. CR-35988 & CR-36058

Sub: Motion for Out-Of-Time Pro Se Petition for Discretionary Review with Attachment-A

Enclosed please find for filing Petitioner's Motion for Out-Of- Time Pro Se Petition for Discretionary Review. Please file date stamp and bring to the attention of the Court.

Also enclosed, is a copy of this letterhead. Please file date same and return in the provided self addressed stamped envelope.

Sincerely,

Edward. Medrano #1790103 Petitioner Pro Se

EFM/ cc: Teresa Clingman, 500 N. Loraine, <§nd Fl., Midland, Texas 79701 FILE

Enclosures: Copy of letterhead Self addressed stamped envelope N0._ _

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

EX PARTE § ORIGINATING IN THE 238th

§ DISTRICT COURT IN AND FOR

EDWARD FERNANDEZ MEDRANO § MIDLAND COUNTY, TEXAS

MOTION FOR OUT-OF-TIME PRO SE

PETITION FOR DISCRETIONARY REVIEW

On Appeal from the Court of Appeals

Eleventh District of Texas at Eastland

Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Edward Fernandez Medrano, Texas Department of

Criminal Justice(TDCJ)-ID #1790103, Petitioner pro sein the above captioned and styles cause, and files this Motion for Out-Of-Time

Petition for Discretionary Review(PDR). In support of this motion Petitioner will show this Honorable Court the following:

- 1 - I..

STATEMENT OF THE CASE

Petitioner was indicted on May 14, 2009, and then again on

June 3, 2009, for the offense of "Indecency With A Child By Expo

sure" in Cause No. CR-35,988' and for the offense of "Indecent Ex

posure To A Child" in Cause No. CR-36,058. The parties agreed to

consolidate te cases for trial.

The jury found Petitioner "guilty" in each indictment, and

assessed punishment at confinement for three years for the first

indictment, two years for the first count in the second indictment,

three years for the second count in the second indictment, and two

years for the third count in the second indictment. However, the

trial court suspended the imposition of Petitioner's sentence as

to the third count in the second indictment, placing Petitioner

on community supervision for a period of ten years.

The State filed a motion under Sec. 3.03 of the Penal Code

in which it sought to cumulate the four sentences assessed against

Petitioner. Penal § 3.03(West Supp. 2013). The trial court found

that each of the four offenses of which the jury convicted Peti

tioner was for indecency with a child under Sec. 21.11 and that

the victim in each case was a child younger than seventeen years

of age. The trial court granted the State's motion.

Petitioner appealed his conviction in the Court of Appeals

Eleventh District of Texas, appellate cause nos. 11-12-00222-CR &

11-12-00223-CR. The court affirmed the case on July 3, 2014, with

- 2 - II.

TIMELINES

The Texas Rules of Appellate Procedures(TRAP), Rule § 48.4

provides that:

In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send a copy of the opinion and judgment, along with notification of the defend ant's rights to file a pro se petition for discretionary review un der Rule 68. This notification shall be sent certified mail, return receipt requested, to the defendant at his last known address. The attorney shall also send the court of appeals a letter certifying his compliance with this rule and attaching a copy of the return receipt within the time for filing a motion for rehearing. The court of ap peals shall file this letter in its record of the appeal, (eff. Sept. 1, 2007).

The deadline for filing Petitioner's pro se PDR was thirty

days after the court of appeals handed down its opinion and judg

ment affirming the conviction July 3, 2014, pursuant to Id., Rule

§ 68.2. Thus, causing the deadline date to reflect as being due

on or before August 2, 2014. Petitioner has not requested an Out-

Of-Time pro se PDR, nor has he requested an extension of time to

file a pro se PDR.

Petitioner's one-year period of limitations pursuant to the

Antiterrorism and Effective Death Penalty Act(AEDPA) as contained

in 28 U.S.C. § 2254(d), provides in part:

(1) A one-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody to the judg ment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclu sion of direct review or the expiration of the time for

- 3 - seeking such review; (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligance.

III.

STATEMENT OF THE FACTS

Petitioner's request for a Out-Of-Time pro se PDR is based

upon the following facts:

(a)'Petitioner sent inquiry to the court of appeals on his own

volition, May 27, 2015, requesting status of his appeal, (see Ex-

A, carbon copy of same);

(b) On May 29, 2015, Petitioner received a copy of the court of

appeals "Memorandum Opinion" from a family member, VIA mail;

(c) On June , 2015, Petitioner received notification from the

court of appeals that, his appeal had been denied and the convic

tion had been affirmed July 3, 2014. (see Exhibit B*);

(d) To date, appellate counsel has failed to:

(1) forward a copy of the Appellant and State's Briefs;

(2) notify Petitioner of the court of appeals' "Memorandum

Opinion" and judgment- or forward copy of same;

(3) Notify Petitioner of his right to file a pro se PDR,

the deadline for filing same, possible grounds for review

and their merits, and delinating the advantages and disad

vantages of any further review;

* Retyped copy of same.

- 4 (4) comply with Tex.R.App.P., Rule § 48.4; and

(5) comply with the court of appeals' request for a letter

certifying compliance with said rule, and a copy of return

receipt due on or before July 18, 2014.

(e) Appellate counsel's deficient preformance has deprived Pe

titioner of his right to file a pro se PDR;

(f) Had it not been for appellate counsel's deficient preform

ance, Petitioner would have timely filed a pro se PDR;

(g) Appellate counsel's deficient preformance has caused the

forfeiture of approximately 70% of the AEDPA one-year period of

limitations as contained in 28 U.S.C. § 2254(d);

(g) Petitioner has been denied his Sixth Amendment right to

effective assistance of appellate counsel;

(h) The TDCJ Dalhart Unit's mail room log will not reflect, or

indicate that, Petitioner has ever received any incoming mail ei

ther certified or not, return receipt, correspondence from the

appellate counsel or his office; and

(i) Petitioner was not informed that the court of appeals had

issued: its "Mandate" until June 3, 2015. VIA In-Cell-Phone-family.

ARGUMENT

Although there is no right to discretionary review, an ap

pellant ordinarily has a right to file a PDR in an attempt to

persuade the Court of Criminal Appeals to exercise their discre

tion. Losing the right to file a pro se PDR constitutes the de

privation of that entire proceeding. Ex parte Crow, 180 S.W.3d

135, 138 (Tex.Crim.App. 2005).

- 5 - The United States Supreme Court in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), established a

federal standard for determining whether an attorney rendered ef

fective assistance. The Strickland test even applies to an attor

neys preformance in handling an appeal. See Evitts v. Lucey, 469

U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821(1985)(due process requires

that a defendant have effective assistance on his first appeal).

An appellate attorney has the duty to inform appellant of the

result of the appeal and that he may, on his own volition, pursue

discretionary review in this Court. Ex parte Wilson, 956 S.W.2d 25,

27 (Tex.Crim.App. 1997); see.also TRAP, Rule § 48.4.

If appellate counsel's action or inaction denies a defendant

his opportunity to prepare and file a petition for discretionary

review, that defendant has been denied his Sixth Amendment right

to effective assistance. U.S.C.A. Const.Amend. 6; Vernon's Ann.

Texas Code of Criminal Procedure(CCP), art. 26.04; Id., at 26.

Most recently, in Ex parte Crow, Id., at 138, this Court held

that, the failure of appellate counsel to follow the requirements

of Wilson, will be measured by the Sixth Amendment standard for

prejudice that is more "limited" than the ordinary standard that

Strickland calls for. Id. This Court applied this "limited" pre

judice requirement to the failure of appellate counsel to inform

Petitioner of his right to pursue a pro se PDR, noting that al

though an appellant has no right to discretionary review, he has an absolute right to "attempt to persuade this Court to exercise

its discretion." Crow, 180 S.W.3d at 138. see also CCP art. 44.45

(d) (1) ; TRAP 66.1.

- 6 - Petitioner pled "not guilty," filed his "notice of appeal,"

and appealed his conviction. This strongly militates in favor of

finding that the Petitioner would in fact have proceeded further

in continuing his appellate process and filed a pro se PDR as

well, as alleged in his affidavit. See Ex parte Owens, 206 S.W.3d

670, 676 (Tex.Crim.App. 2006)(see Exhibit C).

Yet due to ineffective assistant of appellate counsel, Peti

tioner has lost his right under the Sixth Amentment to file a PDR

in hopes of persudaing this Court to exercise their discretion.

Id., 956 S.W.2d at 26.

Petitioner need not show that the proceeding the counsel's

ineffectiveness deprived him of would have resulted in a favorable

outcome; he need only show that he was deprived of that proceeding

and he would have availed himself of the proceeding had his

counsel's conduct not caused the forfeiture of the proceeding in

question. Id., 180 S.W.3d at 138;^ See also Ex parte Owens, 206

S.W.3d at 676.

CONCLUSION

Petitioner's request for an Out-Of-Time PDR, is not for or a

form of delay, but is so that Petitioner may be afforded his right

and a fair opportunity to petition this Court to exercise their

discretion for review and exhaust all of his post-conviction rem-

idies made available by law. A right that has been forfeited at no

fault of Petitioner, but due to ineffective assistance of appell

ate counsel, in failing to comply with Id., Rule § 48.4.

Therefore, this Court should grant Petitioner's motion for an

- 7 Out-Of-Time PDR in hopes of persuading this Honorable Court to re

view the issues Petitioner will present to the Court.

The Court should also reinstate the AEDPA's one-year limita

tions to reflect this Court's calculations for a renewd begin

date so that Petitioner has a fair and impartial outcome to this

proceeding.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honor

able Court grant this Motion for Out-Of-Time PDR so that he may be

afforded an opportunity to petition this Honorable Court for their

discretionary review on issued presented and reinstate the AEDPA's

one-year limitations period lost to Petitioner at no fault of his

own. So prayed.

Respectfully submitted,

Edward Medrano #1790103 Dalhart Unit TDCJ 11950 FM 998 Dalhart, Texas 79022 Petiitoner pro se

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above

Motion for Out-Of-Time Pro Se PDR was sent to the State, VIA-Mail,

in accordance with the Texas Rules of Appellate Procedure, to:

Teresa Clingman, 500 N. Loraine, 2nd Fl. , Midland, Texas 79701.

Executed on this the day of June, 2015.

- 8 - Edward Medrano #1790103 Petitioner Pro Se

UNSWORN DECLARATION

I, Edward Medrano, TDCJ-ID #1790103, being presently incar

cerated in the Dalhart Unit of the TDCJ in Hartley County, Texas,

verify and declare, under penalty of perjury that I had read the

foregoing statements and facts contained within this petition and

the attached "Affidavit" and same are true and correct.

Edward Medrano #1790103 Petitioner Pro Se

- 9 - ATTACHMENT-A THE STATE OF TEXAS §

§

COUNTY OF HARTLEY §

AFFIDAVIT OF "EDWARD FERNANDEZ MEDRANO"

I, Edward Fernandez Medrano, affiant, first being duly sworn hereby depose and say:

My name is Edward Fernandez Medrano, I am a resident of Texas

being presently incarcerated in the TDCJ Dalhart Unit. I am over

the age of twenty-one(21) and of sound mind. The following is a true and correct, factual statement concerning the Motion for an

Out-Of-Time Pro Se PDR in connection with appellate cause numbers

11-12-00222-CR and 11-12-00223-CR.

"If my appellate attorney would have followed the strict re

quirements as outlined in the Texas Rules of Appellate Procedure,

Rule § , 48.4, and not only notified me that the court of appeals had issued their decision and "Memorandum Opinion" in the denial

of my appeal but, informed me of my right to prepare and file a

pro se PDR, I would in fact have petitioned the Court of Criminal

for them to exercise their discretionary for a review of issues

presented, and timely continued with my post-conviction remedies

until fully exhausted.

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