Yurtman, Ersan

• Court: Court of Appeals of Texas
• Decided: April 15, 2015
• Docket: WR-43,115-04
• Status: Published

Opinion

NO-1993-CR-1511E-W4 U3, H5"-oq Ex Parte In the 186th Ersan Yurtman, § Judicial District Court Applicant Of Bexar Couggggjgggity § COURT OFCRIMINAL APPEALS § M* MIw.-.—ED * ^/u-a "Y^j^r>X . ^ Applicant's Motion For Eh Banc Consideration APR 15 2015 ! ^ ff- \ AS Traverse of the Trial Court:!s Order invocaticn of "law-of the Mta*ri« AbelA008KI,Cfelk ition For Judicial Notice of Court Records ' Altematively,Motion to withdraw Application Applicant,Ersan Yurtman,is an eighth grade educated convic

ted felon who has been incarcerated for twenty-two years for a

jury's finding of guilt at trial of Four-joint trial defendant's

charged with the sexual assault of a child on or about Febuarary

15,1994.The jury acquitted two defendant's and convicted two,

E'-R=n Yurtman, ^n^ Roqelio Guf^prrez recei"0^ a thirtv ve = " sentr.ii

ence.

Aftpr a w^-Mon for New T^al was denioH'on may 31.1994,The Fourth

Court of Appeals affirmed Yurtman's conviction(04-94-00206-CR)

on June 28i"h . 1 996-

The Trial Court entered an Order for this application on

March 13,2015,wherein the court states the district Attorney

received a copy of this application on February 26,2015.No re

sponse was served on applicant,so a general denial is atuttorily

assumed -

TRAVERSE

Applicant would move the Court to the pleadings submitted by

applicant with leniency and liberally-Applicant has not made the

required showing that the claims raised could not have been

raised previously.See;TCCP,Art.11.04,§4 (a)(2).

Applicant would show the Court that the pending application

is based on Newly Discovered Evidence which was not,and could

not have been,presented to the Court because the State Attorney

of Texas suppressed the evidence of the complainant's hosptal- ization of mental diagnosis to falsely potray the complainant's credebility- • ^^ Invoction of "Law of The Case"Doctrine

Applicant,as stated,was tried to a petite jury with four

co-defendants-He and Gutierrez ware convicted and sentenced

to prison.On or about April 14,2014,the Court of Criminal Appeals

granted Gutierrez relief from his conviction for Cause NO.WR-76-

513-05,because he established a serious Brady violation commi

tted by the District Attorney in suppressing the complainant's

psycological hospitalization and subsequent diagnosis of "Border

line personality disorder"and symptomatic compulsive lying."

Applicant now asserts that the Court granted Gutierrez relief

from his conviction that occurred with the same testimony,from

the same complainant,for the same offense in a joint-trial,

specifically for the Brady Violation the applicant is now pres

enting before this Court-

Applicant would show that a standard companion case is legally

capable of being designated the same parties;where the State is

prosecuting multiple defendants who are accused of committing the same offense,at the same time,assisting each other.

Motion for Judicial Notice

r :,'. '... of' courtrrecords

Applicant now moves the Court,pursuant to Tex,R,of Evidence, Article II,Rule 201(a),(b),(C),((d),(e),(f)-(West 2014)-

Judicial Notice of Adjudicated Facts::to take Judicial Notice of

the Court's Record in Cause NO.Ex parte Rogelio Gutierrez,

WR-76,513-05.

As stated,Rogelio Gutierrez is the applicant's co-defendant

in trial court cause NO.1993-CR1511E-The Court's record will

show that newly available evidence was introduced in the trial II. court for Gutierrez's fifth application for writ of Habeas

Corpus:which resulted in the reversal of his conviction. As applicant states in his .attached affidavit,he learned

of the relief given to Gutierrez in July of 2014:through corr

espondence received from Gutierrez.At the time applicant started trying tcvery avenue possible to acquire the record and evidence entered with his application for writ of Habeas Corpus-Applicant

has not been successful in obtaining a copy of the record now

in the State Law Library-While he continues to make every effort

he can to acqire these documents,the out come is not assured.

Therefor,he has attempted to present the claims for Brady Vio

lations as best he can.

Applicant believes he has met and exceeded the preponderance

standard for showing is actual innocence in a subsequent writ

application,but for Brady Violation no rational jurorcould have found the applicant guilty beyond a reasonable doubt -See;Exparte

Knipp,236S.W-3d 214(Tex.Cr.App. 2007). Should the Court deny applicant's motion to take Judicial

Notice for the Court's records,applicant will not have met his

burden to show a Constitutional Violation that likely caused

the conviction of an innocent man.Therefor,he would have to

move the court to allow him to withdraw his application until re

such time and he can provide the evidence necessary to meet the

required standard.

Wherefor/Applicant prays that the Honorable Court will hear and determine the merits of the aforegoing and DRANT relief with

III Judicial Notice of the Court'sRecord,and Remand the cause to the

trial court for factual determination of whether applicant has

met the threshold of invoking the "Law Of The Case"doctrine,and

thereby has established, by a preponderance of the evidence,

his entitlement to an evidentiery hearing on the merits of his

claim,with the appointment of counsel.

Respectfully Submitted,

Ersan Yurtman#682652 ProSe

899 FM 632 Kenedy,Tx.78119 Connally ,Unit

Dated April 12,2015

IV- Affidavitt.

I Ersan Yurtman,being of sound and competant mind do declare

this is true and correct to the best of my knowledge.

On July,2014,I was contacted by'Rogelioo Gutierrez(co-defendant)

that he was back in the county-Apperantly,his case was being

represented by the innocence project and they had found evidence

that the complainant,Corina Martinez,was in a mental hospital and

that she had been diagnosed with sometype of mental disorder.So,

I told my mother to go to the Bexar County Clerk's Office and try

to obtain any record she could on Rogelio's case but the Clerk

said that the record is not available to my mother except certain

papers so I told my mother to print those out-

She-;: printed out on 10-07-2014 an"event Log Display"from the

Bexar County Criminal Justice Information System.

On that display my mother printed out the Order Designating

Issues,from the 186th Judicial District- Com-*- <~>f Dp»ar County,

Texas regarding Cause Number 1993-CR-4909-W1-

This Order from Judge Maria Theresa Herr was the document that

brought to my attention that the allegations that Rogelio ..:. :crr

Gutierrez was making were true and that he was'nt lying on his

letter. Penalty of Perjury

I Ersan Yurtman,under the penalty of perjury declare that

this document is true and correct,and that I am presently in

carcerated at the Connally Unit in the Texas Department of

Criminal Justice.

Executed on l\fi^Vl '* \ 2.015. Respectfully j e c t r u x i y Submitted, buomittea, /i / i

Ersaiin Yurtman S^sSb*^) f\ ^^^nT^ V.