Vernon, Eli III AKA Mims, Eli

• Court: Court of Appeals of Texas
• Decided: July 23, 2015
• Docket: WR-83,503-01
• Status: Published

Opinion

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cause No. `wR-33,503-01

IN'IHE CCIR[‘,OFCRIMINRLAPPEAIS OF']E(AS

TRIAL. CY-\USE I\K).. CR13-0053

Ex PARTE § § IN IHE 43rd ELI vERNON III _ § JUDICIAL DISTRICT- OOURT a.k.a; ELI MIMS §_oF PARKER cOUNTY, TEXAS

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CQURT 0@ emang APPEALS JUL 2 3 2015

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'IHAT.`APPLICANT'S APPLI(DTI(II FOR`WRIT OF',` HABEAS (X)RPUS`BE DENIB)

ELI vERNON III, #1863499 ALFRED STRJNGFELLOW UNIT 1200 F.M.l 655

ROSHARON, TEXAS 77583

RMENZE 'TABLE OF'AUTHORITI]ES PAGE # FEIXDAL S'l‘ATU'IES

28 U.S.C..§ 1746.....,.......... ......... _.. ................ ..... _12 28U¢S¢C¢§2254.((3).(-1),(2)'00¢¢oooo¢~.o-oo¢oo¢coooooooooc¢~¢‘¢~¢ 617

SUPREMECOURTREIUZ[‘ER.

DUREN v. MISSOURI,.99 S.ct. 664 (1979)............,........... 4 _ GmEsv.IuJMHS,lazsxx.zmj u%w)".~.~.n-n-n."..5 HUGHEs.v. RowE, 101 s.ct. 173 (1988)................,-.....,.; 1 sIRICKLAND v. wASHINGToN, 104 S.ct. 2052 (1984)............... 10,11

FE)ERALRE?UTHZ.

cRANE v. JOHNsoN, 178 F.3d 309 (5th cIR 1999);...........-..-. 11 MURPHY v. DRETKE, 416 F.3d 427 (5th cIR 2005)-.......-.-....2. 6 TREABLEY v. ANDERSQN, 534 F.2d 507 (Sth cIR 1999)...-......... 11 wIGGINS v. PROCUNIER, 753 F.2d 1318 (5th_cIR 1985)..,...,..... 1

EEDERAL SUPPIEVIENT.

'IREMBLEY V. ANDERS)N,. 439 F.SUPP. 1250 (1970)...........'...... ll TEXAS SI.‘A'IUI‘ES,

coDE oF cRIMJNAL PROCEDURES, ARTICLE 11.04.................... 1 coDE op cRIMINAL PRocEDuREs,.ARTIcLE"38.23(a),(b)............. 7,9,10 TEXAS PENAL GODE § 38.04(a)................................... 3 `

cADoREE v. sTATE, 331 S.w.3d 514 (TX.APP. [14 DIST] 2011)..... 8 coLESToN v. STATE, 511 S.w126 10 (Tx.cRIM.APP. 1974).......... 5 DAVIS v. sTATE, 989 S.w.2d 859 (TX;APP-AUSTIN-1999),-.....,... 5 DILLoN v. STATE, 79 3 S.w.2d 744 (TXtAPP-SAN ANT0N10'1990).... 4 DOWLER v. STATE, 44 s.w.3d.666 (IX.APP~AUSTIN'2001)........... 5 EX PARTE YBARRA, 629 S.W.2d 943 (TX.cRIM.APP. 1982).;......... 10 PARISH v. STATE, 939 S.w.2d 201 (IX.APP.-AUSTIN 1997)......... 5

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REFEREIKZE Mwmsl_. PAGE#

CDNT., SO[HHWESI‘ERN. .REPORTER,\

ROJAS_v. STA'IE, 797 S.W.2d 41 (TX.CRIM.APP. 1990)...... . ...... . v5 ST. GEORGE v. STATE, 197 S.W.3d 806 (TX.APP._.[Z DIST] 2006); .. .. 8 ST. GECRGE v. STA'I‘E, 237 S;W.3d'.720 (TX.APP. [2 DIST] 2006)...(§. 8

SWOPE V.. STATE,` 805. S'.W. 2d 442 (TX.CRIM.APP. 1991) ... . . . . . .. . ..... ., 4~ WRIGHT V. STATE, 932 S.W.Zd 572 '(TX.APP-TYLER 1995).... . .. .. . .. . 5

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cause ' No. wR-83, 503-01

IN 'I‘HE COUR'I‘ OF CRIMINAL APPEALS OF ’I‘EXAS

_'.[RIAL U\USE NO. CR-13-0053

Ex PARTE, §

§ IN THE 43rd ELI “ENJON' III' § JUDICIAL DISI'RICT coURT.. a.k.a. ELI MIMS_ § oF PARKER couN'I'Y', TEXAS

TJ]EXITIONS.'IO '.I.‘RIALCOURTS ORDERMING'H'IAT APPLICANT'S x APPLICATIU FDR WRIT_' OF 'HABEAS CORPUS BE IEN.[ED

TO THE HONORABLE JUDGE(_S) OF SAID'CI)URT: " `

COMES, NOW, Eli Vernon. 'II'I, _a.k.a.' Eli Mims, Applicant, pro-Se, in the » above styled anda numbered cause, and respectfully files this Applicant's Objections 1b Trial, Court'.s Order ,Recormnending.'lha,_t Applicant's Application For Writ Of Habeas Corpus§be Denied..` The Applicant, would Show the Honorable Court: the following in support thereof :

HUI‘ICE

The Applicant..prays the Honorable Court. not': hold him to the same stringent " standards,~ as \.a licensed “attorney.,‘ asi the Appllicant‘ has' no skills .or.'.~'training in the science’of law, pursuant to Wi.ggins v. Prowniler,_¢ 753; F.2d 1318 (5th Cir. 1985.), and.j}iug§' es..v..,Roae,_ 101 S,.Ct. 173 (1988)-'.._.. 1-. The Applicant would show the Honorable hurt that.‘ in. making 'its:'recommen'-' dations, the Trial, Court;_. Judge. failed to_ give the Applicant the due :'regard '

to his writ as,. required by Article. 11.04 V.A.C.C..P'. This is'easily.. seen

by the fact that the State .filed: their St'ate"s :Reply to.Applicant's;App'licati@n,

for writ of Habeas Corpus 4on 18 June '2015 at 4:56 p.m., without Serving

Applicant .any~ copy, and the~elrialt Judge filed hiszecommendation. o deny

it on 19 June, 2015,. et 2:46 p.m., when fi1ed_w`ith~the`nietriee c1erk._, Ana'

the~ Applicant received.-it (6)' six days later on 26 June, 2015. Where was .

the investigation' on' the1 issues clained? _This Trial Judge has shown bias throughout ~the, trial, 'and' hasl now vshown it in his appellate review. The epplicant. prays. the-‘Honorable Oourt disregard the Trial Court's recommenda- f tions, and hold its own evidentiary hearing or order seperate District Cburt to hear this appeal..» 2.. ISSUE ONE `- ‘Denial. of due process.and.equal protection when Applicant* was denied a jury of. his 'peers due to no African Americans being present on the Voir Dire panel;'

In the State!s Reply to Applicant!s~Application;for'Writ of Habeas Corpus," on pages. 4-6, the State submits to the Courtfthat\some.ZOO citizens are sum-

moned' for 'jury duty. They also admit out of 200, only 53 showed up for jury

duty. They admit, on page 5, that this "is about average'for our jury‘weeks“4

and 'that "this Court [the trial court1 is'fully'awareF of this;problem¢ Yet neither‘ the Court, nor 'the .State, have taken any measures to correct the41 evidently ongoing- problem. ' Had. the. 200f jurors showed up, the likelihood; of at least. one black, or 'nore Hispanic or an Asian citizen being onrthe* panel would. have increased» four ttimes- If the State creates a system by which the Jury' is‘ selected, but fails,to ensure that system's integrity is maintained, they deny defendants in jury trials due process and equal protec~ tion; under the law. In fact the State readily admits on page five of their

"Reply" that 4"it would not be unusual for no African-Americans citizens to

appear, on any ‘rand@mly :-‘ generated .list of only 200 potential jurors out<'

of a total`county population of over 120,000 people." By failing.to properly '

ensure the 200 selected show up or are replaced; the State guarantees the

the odds are substantially lessened.

Under.Dureniv. Missouri; 99 S.Ct. 664; 668, the Applicant has shown: 15 that. African-Americans,'are' a "distinctive" group.in the community; 2)'that“ (due to the State's failure to.maintain.the 200 citizen jury pool) that the' representation. of this group `in which juries are selected is not fair and" reasonable in relations to 'the number of such persons in the community;'and" 3) that this underrepresentation is.due to systematic exclusion of the group" in the jury' selection process." By the State already acknowledging the fact'j the failure of selected jurors (almost1 150 out of 200)_to appear is normal, and not showing. any remedialj actions_ to correct the ongoing problem, the State andj the~ trial. court psystematically deny all defendants.the right to a jury of their peers selected out of the legally procured 200 member jury“ pool as. the county jury 'selection laws mandate; Thus, the Applicant has been denied a proper jury selection process, which did in¢fact greatly reduce “

the chances any member of his race would appear on the Voir Dire Panel;

.3. ISSUE TWO: The Applicant states that.his:due,;processxrights were violated , :

by the State's failure to give "mens rea" when listing the charge on.the" indictment and/or charging instrument;~'Such held the State to a lesser burden of proof than was required by law.

The Applicant's sole alibi defense was that he did not know the vehicle' behind him was a police officer.\ This would:nequire the State to prove that the Applicant‘s fleeing’ wasv from a culpable mental knowledge that'he;was in fact fleeing from soneone he knew was a police officer;_

The State argues that the Penal Cb e § 38.04(a) provides "a person commits

an offense if he intentionally flees from a person he knows is a.peace officer'“' or federal special investigator attempting lawfully to arrest or detain him."

(State's Reply, pg. 10);

The State' told _the .Jury Fwe don”t have to.prove why the defendant fled`; from:. a person he knew to' bea police.'officer."' (RR.Vol. 3, .pg. 20,'1ns. z 9v10). `But the whole issue of "knowinglyf and intentionally fleeing is seen in, a different perspective if the= motive for the Applicant fleeing was that ' »he did, not ,know; it was a police officer chasing him;f'And this was in fact_ shown:. at triall when.officer; Cryer stated _that:',when.-the.'Applicant_ saw police ' outside `his; overturned zvehiclev he stated, "Bidn?t know it was you,": (R.R.f Vol.. 3, pg. 61, lns-t 17-19). Thus'the>State;was required to`disprove"the' Applicant's alibi 'defensei~ .By 'taking:the culpable mental state out of the charge, the State, was 'no nlonger. required:to show why'the Applicant'Fled;"" Just that\ he fled intentionally.. Arld:the"€ourt-sjhave,.alre<‘:ld§>f;'stated,.”i.,"I'--f"

The Applicant's due.process rights were denied because the State was not required to bear their full burden of proof.j 4. ISSUEl THREE: Applicant_ contends police officer did not have reasonable“ suspicion; to stop the Applicant due to,failure¢to_Showfthe¢level of suspicion:* EWHM'w\MMMYd%ammth@HmmnAsmnws%nthlme' discussion. between »the:-trial .judge, defense counsel, and'pnosecutor, Texasf" caselaw supports .the 'Applicant‘s'"contentions.a. This was also shown by the trial judge's own statement "this is‘a very narrow case;"

An anonymous caller called in.that_he believed a crime had been committed.. The dispatcher relayed false infornation.to:officers., Officer Cryer testified.

he pulledv up behind the Applicant in a car not normally used due to lack

of strobe. lights“ on the roof. He had his dashboard strobe lights on before ` he pulled'up_behind Applicant.4 Pursuant to ngl§£;!:_§§§§§;y44 S.W.3d 666, 667 (Tex.App.-Austin 2001).'it' was not enough information to justify the level of suspicion required to justify a detention. .Because the information given4 to police were easily obtainable, i.e. a black man driving a black Chevrolet Impala headed_ downf highway 20, at the time the information was provided;i' it did. not support a finding or reasonable suspicion that.the Applicant had committed a crime., (See Parish v. State;.939 S.W.2d 201,_203 (lex.App.-Austin 1997).

"To justify a .police officer”s conclusion 'that a crime has been or is being conmitted, the officer_generally cannot rely alone on a police broadcast."z of van anonymous. phone.call to establish probable cause or reasonable suspi~ cion." wrig§c_v. state,._932 s.w..-2a.572,_ 576 (Tex.App.-.Tyier 1995);\l Rojas.v.c - ' _§§§§§, 797 S.W.2d 41, 44 (Tex.Crim.App. 1990); 'Goleston ve State, 511 S.W.2d lO, 12 (TeX.Crim.App..1974)j Davis ve State, 989.S.W.2d 859, 863 (Tex.App.~Aus- tin 1999). `

But this is exactly what occurred in the case at bar§ And then the call from the dispatcher failed to relay correct data to the officers. As stated in Gates v. Illinois¢ 103 S.Ct. 2317 (1983);4 1 4 v

|"The opinion in_§§§§§ recognized that an anonymous tip alone seldom demon+ strates. the-informantfs basis of knowledge or veracity in as much as ordinary“ citizens generally' do. not provide extensive.recitations.of the basis of the" everyday observations,.and ygiven'_the veracity of persons supplying anonymous tips is 'by hypothesis largely unknown; and'unreliable;" Id at 2332. "The call provided virtually nothing from_which one might conclude that [the caller] is either honest or his information reliable." Id at 2326.

Because officers did not have reliable information, they had no reasonabde`

suspicion to detain¢the Applicant. In fact, even when all evidencewas pre-

sented, there was no stolen credit card as alleged; there was no stolen jewelry and all the jewelry had invoices showing they were the.property of the Appli-

cant. The Sole reason the`Applicant ms even charged of a crime Was because

.he ran from the lpolice. But why would he have cause to r'un, when no crime

had been committed? Testimony revealed Officer Cryer was in a'vehicle that

Applicant' recognized as the same make, model,. and color as the vehicle driven

by robbers who had robbed him on a prior occasion. .Until the Applicant:t`led,

police had no reasonable cause to detain him, or. even have strobe lights

on in the first place.' The detention was illegal by'law, and as such this

convictions should be reversed and van acquittal granted.

5. ISSUE.FOUR: j The Applicantargues that the ’I‘rial Court~ erred in its failure to grant the Motion for Directed.Verdict'based von fact police officers did

not have enough reliable information 'to form reasonable suspicion required

to justify the detention.

’Ihe` Applicant argues ~ that the trial judge made a decision that only the Jury should have-made - was the detention legal. Withoutthe Jury's decision von this issue, the directed verdict was ministerial .'

The State argues that this,issue was-already decided in direct appea-l,_ and as such was_ not appealable issue. Ho/vever, '.'Under AEDPA, this Court may not grant relief on a_ claim the state court has adjudicated on the merits 'unlessv the adjudication of. the claim...resulted in la,decision that wasn con- trary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,e. .or resulted in a decision that was basedon an unreasonable determination of ' the facts in light of the evidence presented nin the State Gourt proceeding"'."

28.U.S.C. § 2254(d)(1) and (2); HIqhy V. Dretke, 416 F.Bd 422, 432 (5th

Cir 2005). v In the Opinion of the Eleventh Court of Appeals, dtd. September 25, 2014,

the Honorable Justice Mike Wilson states on pages 3-4, "Officer Cryer testified that, on November 14, 2012, he was notified by dispatch that the driver of a black Chevrolet 'Malibu, later confirmed to be Appellant, was reportedly in possession of stolen jewelry and/or a stolen credit card. Officer Cryer then headed, to Appellant's location in his marked patrol car. Officer Cryer eventually caught up to Appellant's .vehicle and turned on his lights and

siren." (Opinion, pags. 3-4).

In trial transcripts it was determined Applicant was driving a black Chevro let Impala. It was also testified that Officer Cryer had his Strobe lights on even -before he found the Applicant- It was also testified the police car had no visible markings on front of the police car, and no Strobe lights en the reef. (R.R_. vel. 3, pge 136_138; 145-146').

Thus;' as required by 28 U.S.C. § 2254, the Appellant Judge's opinion was based on an "unreasonable determination of the facts in light of the evidence presented in State Court proceedings.” The officer had initiated his deten- ~tion of the Applicant even before he found him, And even then, the car des- _cription` was. incorrect, the report that the Applicant attempted to sell a_ "stolen credit card" was wrong information, and the call was anonymous. A11 make for lack of reasonable suspicion as required by both State and Federal law. Thus, the.Applicant is entitled to bring this claim before this.Honorable Court. This, conviction' should be reversed, and either an acquittal or new trial granted.

6. vISSUE FIVE: The Applicant argues that pursuant to Article 38. 23(b), V.A.C.C.P., the Trial Judge had a duty to give Jury instruction on the issue

of reasonable suspicion.

The State argues there was no "material" disputed issue of fact which required an instruction.

Pursuant to Cadoree.v. State, 331. S.W.3d 514 (Tx.Cr.App.-l4 Dist 2011), "There are three requirements that a defendant must meet before he is entitled to the submission of a jury.instruction to disregard evidences l) the evidence heard by the' jury must raise an issue of fact; 2) the evidence on that fact must. be 'affirmatively_ contested, andv 3) that contested factual issue must. be material to the lawfulness of' the challenged conduct in obtaining the

evidence; a cross examiner!s questions do not_create a conflict in the evi- dence, although the witness's.answers to those questions might." Id.

The facts were that an anonymous caller [not known prior to this occassion- by dispatcher, or police], said a black man driving a black Chevrolet Malibu, [the Applicant. drove a black Chevroletv Impala], tried to sell him stolen jewelry, [dispatcher radioed police» it was a stolen credit card; Nothingy stolen was found]. The fact .is Officer Cryer took off in his patrol car with his strobe lights`on, even before he found the Applicant driving a black Chevrolet Impala. The issue, of1 fact - where was the reasonable suspicion that a crime was, or had been committed? This issue was contested at trial by defense counsel during the request fora directed verdict hearing. .And finally, this factual issue is material to the lawfulness of the detention> started by Officer'Cryer. And'under the "fruit of poisonesstree doctrine", evidencev found. after the initiation of the detention may not be used.against the Applicant. (See.St. Geg§§e v. State; 197 S.W.3d 806, p.d.r. granted, 237 S.W.3d 720 (TX.Cr;App. 2 Dist. 2006).

1 Article 38.23(b) V.A.C.C.P. directs the Trial Judge to give Jury instruc- tion if there` has been raised the legal issue of reasonable suspicion. lThe

Applicant was denied due process when the lrial Judge took upon himself the

duty of Juror.. The Applicant requested Jury Trial. This conviction should be reversed and Applicant granted an acquittal or_a new trial.

7. ISSUE SIX: The Applicant argues that defense counsel was ineffective for his failure to: l) challenge the composition of the Jury; 2) have jury’ charge/ indictment corrected; 3) request Jury instructionspursuant to Article

38.23 (a) V.A.».C.C.P. in regards to whether police had reasonable suspicion

to stop the Applicant;` 4) failure to Object to incorrect Jury instruction in closing arguments of guilt/innocence phase of trial and during Voir Dire'. These derelictions on the part.of defense counsel denied Applicant his 5th, 6th, andl4th Amendment‘ right to effective assistance of counsel. Note, the Trial Court conducted no investigation on this issue denying Applicant a proper review of this.issue. The defense counsel has not been given oppor- tunity to respond. v

The first issue of. failing .to ckallenge the Jury composition shows ineffec- tiveness, or for a better mrd, relinquishing the Applicant's.right to a Jury of his peers. Defense counsel has merely conformed to ignoring Parker County's failure: to ensure potential jurists show up for jury duty.. _'I‘he State's Reply to this issue, that on'ly'53 out of 200' jurors showing up was normal .. The failure of defense counsel to challenge this constitutional violation~will`continue unless effective counsels challenge it.

This was ineffectiveness in failing to protect the rights of his client.

The second issue- of failing to have the Jury'charge/indictment corrected cannot in any way be construed'as sound trial strategy when it involves the Applicant's alibi defense. State and federal law require that ."mens rea" or a culpable mental state be included in the indictment/ jury charge. The issue of "knowingly" was not included in the charge. .Such renders the indict-

ment void. But more importantly, allowed the State a lesser burden of proof.

They were not required to. "prove" that the Applicant ‘did not know a police officer "was chasing him, or`that his belief it was-robbers was a lie. Again, this cannot be said to be sound trial stratagy, as it was his client's sole

line of defense.

Strickland'.v. Washingt¢n, 104 S.Ct. 2051, 2061 (1984) has stated, "if

there is only one plausible line of defense, counsel must conduct a reasonable substantial investigation into that line of defense, since there can be no strategic choice that renders such an investigation necessary. The same duty exists if counsel relies at trial on only one plausible line of defense, although others are ~available. It must include an independant examination of the facts, circumstances, pleadings, and'laws involved.'.' Id. at 2061. Defense counsel failed to hold the State to their'burden of proof of every element of the crime charged, to include "mens rea", 3a culpable mental state. 3. Defense counsel had._a duty to the Applicant to request Jury inst-ruc- tions pursuant .to.Article 38.23(a,) V.A.C.C.P. He had argued the reasonable suspicion issue at trial. He allowed the Trial Judge to decide a crucial

issue that should,have been the Jury's decision alone.

v "It is fundamental that an attorney must have a firm command of the facts of the case, as well as the law before he can render reasonably effective effective assistance.~" Ex Parte Ybar'ra, 629 S.W.2d 943 (Tx.Crim. App. 1982).

Defense counsel failed to render effective assistance when it was needed.

Finally, ' during the Voir Dire and in closing arguments of the guilt/inno- 'cence phase of trial, the prosecutor instructed the Jury that they were not required to prove why the Applicant fled from police. This lessened the burden of proof upon the State to prove culpabl'e mental state. Yet there was'no objections to this argument by the defense counsel.

"If an attorney makes a serious mistake which could effect the verdict,

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reversal is required; even if the attorney was generally competent." !§§m: bley v. Anderson, 439 F.Supp. 1250 (1970) affirmed, 584 F.2d 507 (5th Cir 1978),

The Applicant was required to show that defense counsel's performance was deficient,. and that the deficiency_prejudiced.the defense. (See Str]'.ckland supra, at 2052; Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).7 He has done this.

CONCLUSION

The conviction .and sentencing under which the Applicant is imprisoned is unlawful and void due to the multiple violations of the Applicant's rights to 'due process and equal protection under the law, effective assistance of counsel, and an unbiased appellate review. The Trial Judge has denied the Applicant this appellate review.

The Appellate prays the Honoratde Court disregard the Trial Court's Order Recommending that Applicant's Application for writ of Habeas Corpus be Denied, and l) Order an evidentiary hearing» on all the Applicant's issues be heard in

a different District Court; or 7 2.) This Court hold its own evidentiary hearing on all the issues presented

in the Applicant's Writ; Or 3) Grant the Applicant an acquittal or new trial.

IT IS SO PRAYED

~ . r_”' rESPEcTFULLY sUBMITTED, (jzu,¢/i;p,¢m¢,¢,eiLL¢L Eli vernon 111, TDcJ-cID #1863499

Alfred Stringfellcw Unit 1200 F.M. 655 b Rosharon, Texas 77583

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VERIFICATION_

I, Eli Vernon I~II, .Applicant, pro-se in the above styled and numbered cause, being presently incarcerated at the AlfrediStringfellow Unit, of the TDCJ-CID, in Brazoria Coun_ty,' '1‘exas, do hereby verify under penalty of l perjury that all the statements contained in this'Objections To Trial Courts Order 'Recommending that Applicths Appli'cation for lwrit Of `Habeas Corpus

be Denied are true-and Correct. 'Affir'n‘ation trade pursuant to 28 U.S.C. § 1746.

£LL/WF l /\§’ j&[[. /S/

Eli Vernon III, TDCJ-CID #1863499

Applicant , Pro-Se

I, Eli Vernon; III, Applicant, pro-se,f do hereby certify that'a true and correct copy of this Obj'ections to, Trial Judge?s Order Recommending That App-licant's Applicationy .'for_' writ of Habeas Corpus Be. Denied has been served ' by placing a copy of the same in~the.U.S. mail,` first class .mail, postage

pm%id, addressed to:

Parker Coutny’District Attorney A'ITN: Mr..‘-Edward D. Lewalled, Asst.. D.A. 117 Fort V\brth Hwy._ Weatherford, Texas

24 /M;r /5 ja 4 /5 Eli.Vernon III, TDCJ-CID #1863499 ' Alfrea stringfenew Unit- 1200 F.M. 655 Rosharon, lean 77583

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