Simms, Donovan Dwight

• Court: Court of Appeals of Texas
• Decided: January 20, 2015
• Docket: WR-68,174-03
• Status: Published

Opinion

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f`!'\.\__lRT OF CR|M|NAL APPEALS

md ¢_~0'1/ 003 /LcGA

JAN 20 2015

Abe\ Acosta, C\eri\~

N0.1056045-C

In Re/ IN THE 230th DISTRICT COURT OF

§

. 1' `l:' [DoNo\/AN DWIGHT ,SIMM§@] HARRIS COJNTY' T"'>_

(Rule 73.4(2), Tx.R.App.P.)

PETITIONER'S OBJECTIONS TO STATES' FINDINGS OF FACT, CONCLUSIONS OF LAW/ AND ORDER

`Donovan Dwight Simms@% herein Petitioner,- in and for DONOVAN DWIGHT SIMMS§)as his authorized representative herein files this, his Objections to the States findings of Fact, conclusions of law, and order. Received on the 9th day of the 12th month in the v

lyear of OUR Creator, Two-Thousand and.Fourteen/zmmistates the Following:

As to Ground l: Actual Innocence- Newly Discovered Evidence

l. The Petitoner has brought forth Newly Discovered Evidence in favor of the Applicant [DONOVAN DWIGHT SIMMS§M in the form of an affidavit made by one named Moses Macauley, labeled ATTACHMENT A (herein incorporated by reference from habeas corpus application) . The Petitoner objects to the STATE and this court for ignoring the precedence set in Schlup v. Delo, 115 s.ct. 851, and Herrera, 113 s.ct. 853, 506 U.S.@404.

2. The State wrongly applied the "beyond a reasonable doubt" doctrine instead of following the precedence set in the two above cases and in Ex Parte Elizando, 947 s.w.2d 202 (1996) @ 207-08, which states "... a habeas;yatitionsr should, at a minimum, be able to persuade the court that the New evidence raises a reasonable doubt about his guilt... his claim for relief depends critically on the validity of his Strickland and Brady claim." Elizgndo goes even a step further to state that its, "... a gateway through which a habeas pet- -itioner must pass to have his otherwise barred constitiutional claim considered on the

merits."(emphisis added).

3. Thep@titionerstated in his memorandum@herein incorporated by reference) at pgs.2-3@3, that the affidavit shows that there was no Robbery(or assault for that matter) being committed and he witnessed the applicant walk away from the scene of the alleged incident.

There is no evidence, no corpus delecti to even point to a crime even being committed.

4- Thepetitionerrespectfully demands that this court reconsider this ground and hold an ' 13 Evidentiary hearingtxr thoroughly question and intéyiew this witness and get his verbal

testimony in court U)'thoroughly find the facts.

_l_

As to Ground 2: Ineffective Assistance of Counsel/Denial of Effective Counsel- v Actual Innocence (with newly discovered/available evidence)~ 5. In the petitioner's second ground, he brings forth a multi-claim ineffective assistance of counsel claim with newly discovered .evidence that has been recently made available lto him (particularly the affidavit made by Lacreta Adams), and supplied in the habeas corpus

writ(ll-O?) as ATTACHMENT B (herein incorporated by reference).

6. The STATE has deceptively stated to this court that the petitioner, "has failed to in- _

~clude sufficient specific facts establishing that the current... factual or legal basis for the claim LS] was unavailable...", yet the STATE never mentions this affidavit by Mrs. Adams or the fact that on pg. 4 and 9 of the habeas application and at pg. 8, U4 of h£e.mem- -orandum, the petitioner stated, "...at the time did not have (and could not have acquired with due diligence) the evidence needed to meet his burden of proof "on the ineffective assistence claim. Mrs. Adams affidavit was not made until August 13, 2014._

7. In Ex Parte Nailor, l49s.w.3d(Tex.Crim.App.2004) 125,@130-31 the court stated, "a defendant claiming ineffective assistance of counsel may re-urge a claim in a habeas corpus application that he previously raised... if he provides additional evidence to prove his claim." It is also stated in Schlup v. Delo, 115 s.ct.85l,864, "A petitioner must show

that the constitutional error 'probably' resulted in the conviction of the one who was

actually innocent."

8. Knowing this,the petitioner feels that his claim must be thoroughly investigated and a proper evidentiary hearing must be held to examine the evidence and witnesses/and to further look into any other evidence which may now be available. See; Wade v. Armountrout,w

798 F. 2d 304(8th cir. 1986)@306 ( a petitioner is entitiled to a hearing when the facts

alleged if true, would entitle him to relief. )

As to Ground 3: Void Nunc Pro Tunc order/Judgment

9. The petitioner's third ground was never answered by the State and the petitioner's claims must be answered in their entirety by the STATE. Therefore, the petitioner request' that

this court properly review his claim for ground 3.

Certificate Of Service I Donovan Dwight Simms@% hereby do certify that a true and correct copy of this document

Petitioner's Objections to Findings of Fact) Conclusions of law, and Order was sent to the below address on December ?, 2014, with the below also sent ot the Dist. Atty. Carolyn Allen, l by placing the same in the Prison Mail Syatem to be mailed First-class postage prepaid to:

Chris Daniel _

Harris County District Clerk

P.O. Box 4651 Houston, Tx. 77210-4651

H . Executed this the 72 ' day of the.i'?l"t month, 2014 A.D.

Respectfully Submitted/ //,4// flue/levee .l>/€ 656 /.\' @=.YF)ZWJ

X/€’M/%M{©

Donovan Dwight Simm$

i/

C.C.:Filed