Zavala, John

Opinion

\· r· ,:. . Into and For the. Texas Court of Criminal Thlsdocumentcontains~~~@als,And Its Justices,Supreme Court Building, .pages that are of poor qlcHily West 14th Street I Room#l06, Austin, Texas 78701 at the tirne of imaging. , In Re John Za*ala(aka~JOE ZAVALA) § Inre:Cause#/Styled,C-396-010512- App~icant-Relator-Pro ~~' § 0943395-D RECEIVED IN . · Versus,· § COURT OF CRIMINAL APPEALS Judg~(Jtihn/Jane Doe),for the 396th § Judicail Dist~ict Court of Tarrant § County of the State Of Texas;Andra- § AUG 20 2015 Jacobs,AsstjAt~orney to C~iminal - §§ District Attotny to Fott Worth T~xas, ~o t ion f oAb)~AP.'='JS~~~~k' tricking Sharen Wilson,Fried McMillin,Crim.D.A, § ~llegal th~~~artt s Brief-under & Litigation Specialist-Post Conviction,§ Writ of Mandamus AndREddie D.Baker,Custodian of Record,et ~ al,for TDCJ-CID,et al .....

§

Relator's Application Fo~ An:Briginal Applicatibn FOR A W~it Of Mandamus Pursuant to § 22.22l(b) of the Texas Government Code,& Rtile 72.1}& 2 of The Texas Rules Of Appellate Procequre

To The Texas Court of Criminal Appeals-Justices: Comes now before your said Appellate Court,John Zavala,under number as 01310 - 27l(aka,but real name is Joe Zavala),and seeks for judicial Notice,and to l e t - there be understanding in this cause of action sub judice and thus,has submitted ,and filed [t]his Application for a writ of mandamus against above said Respondent ;,.- ( s) , and thus, d:nvoki ng the j ur isdi ct ion of this Court of Apge·al·s o; Texas, purosuant to Texas Government Code,§ 22.22l(b),and Rule 72.1 and 2 of the Texas-' Rule of Appell~te Procedure,as implemented with Article v~§5A of the Texas Contitution ,but that mandamus is sought against the presiding judge over the habeas corpus proceeidings under number case,cause C-396-010512-0943395-D,and in Court~

for the judicial District of Tarrant County,Texas;for committing abuse of Autho~.

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-ri ty, and arbitrary acts in her /his judi c_ial capacity, and discretion, in errorne,~ \· ... )~·.~.

nously failing to perform its/her/his ministerial duties empaneled by State la~;~-

and for suspending procedures for implementing the writ of habeas corpus,and deviating from the normal proceedings under article 11.07,§§ 1,2 & 3(a),& (b) ofthe Texas Code of Criminal Procedures,and application of the law and facts that is cited within this Relator's writ of habeas corpus,and it's findings of - facts and conclusions of law-attached to this Relator's Application for a writof habeas corpus,ad testificandum,and thus,these submitted petitions for Relate or's writ of habeas corpus were not heard or suppr~ssed and not determined uponthe law and facts shown by the trial Court's record,and reintroduced by Relator as his exhibits(42 items in all).Inwhich Relator's main issue presented is that the trial COURT and it's judge, rendered a void judgme-nt, based on the Prosecutor- -' (s)' false and fake indictment, and that srtipped the trial Court of any :(. ictic.n over the subject-matter, caus·e "'of action and all Parties of inte, Wrose yet,said Respondent has not acknowledged Relator's.actual claims l.Coat.

before it's Court,and intentionally failed to serve the corr~ct and legal Per-~­ son(s)-Party(s) of interest:Which would have been Eddie D.Baker,-who is the - Senior Warden and Custodian who the trial Court's habeas co~pus judge was to - issue ser~ice of process upon.Such as the summons and complaint,and thereafter [ ]ould have been compelled to appear and enter an appearance with the body of this Rel~tor,and then and there show cause why Relator[Applicant]should not bereleased from false imprisonment ?-i.e.,Bounmedine V.Bush,553 U.S.723(2008)(inpart ,''whetHer Petit~oner's legal due process of law was dehied,for not affordi~ ng Petitioher the right to a fair opportunity.in State Court to discover and present potentially exculpatory evidence that was not contained in the recordon appeal ?~");District Attorney's Office V.Osborne,557 u.s.52(2009)(same);U.S.- V.Moussaoui,365 F.3d 292,300-302,n.4-5(4th Cir.2004),citing Padilla V.Rumsfeld, 352 F.3d 695,709(2nd Cir.2003),cert.Gr~nted, U.S. ,124 S.Ct.l353,1358- (2004);Rumsfeld V~Padilla,542 U.S.426,124 S.Ct.27llil59 L.Ed.2d 513(2004),8:- Hamdi V.Rumsfeld,542 U.S.507,124 S.Ct.2633,159 L.Ed.2d 578(2004) ,8,2·72;RA'( ___ ,. BUSH,542 p.S.466,124 S.Ct.2686,159 L.Ed.2d 548(2004),9 ... HENCE,the legal-prop-

(

er Respondent with respect to the writ of habeas corpus petition; is the Person who has custody over the Petitioner/Applicant,and jurisdiction of the issaunce of the writ lies with the State OF Texas Court of Criminal Appeals,and each judge there6£-given-the-power-and-Authority to grant and issue the issuance of - writs of habeas corpus,and in Criminal matters[as herein~sub judice],the writof mandamus,etc.i.e.,Article 4.04,§ 1 & § 2(TCCP);Articl~ 5,§ SA Of the Texas- Constitution,and thus,over the Respondent-Eddie D.Baker-named in Relator's Memorandum of law,attached to his Application for a writ of habeas corpu§,along .,.. with his exhibation of itemized instruments material to RELATOR'S unconstitutional and illegal conviction(s) for Arson and Burgarly.Insupport of this want ofmandamus Application,Relator will further show this Said Appellate Court's Justices the following:

I.

A) Relator's plea for jurisdiction involves the validity of the judgment pronounced upon his imposed duplicitious Count indictment or the Prosecutor'(s) ownversion of an unauthorization of a grand JUry panel.Whicb judgment is void abinitio ,because the alleged defendant,John Zavala,was n~ver legally before thetrial Court and it's presiding trial judge.In fact,the indictment is so fatallydefective that it deprived the trial Court of subject-matter jurisdiction-Had -

defense Court appointed defense counsel(s) NOT elected too ~ommit.breach of his-

~-·· :her/their fiduciary duty and legal obligat{ons,he/she/thet would have objectedand complai~ed about deceBtive trade Practice acts by the prosecutor(s) and that there was no actual returned True Bills of Indictment(s).These issues are well pleaded in Relator's memorandum of law,as well as supported with his exhibitation of 42 items.Moreover,Relator can never waive his United States Constitutional rights guaranteed under the Fourteenth,and Fifth,Sixth,Eigftth:;.Ninth Amendments .Thetefote,Relator has not waived any absolute rights,and has reserved the - e s e said rights even p r i or to his coerced and i n d u c e d p 1 e a of qui 1 t Y ' and wi 11 -;;,~;;..:?

2.Coat.

reserve his right to amend this designation·so as to not have waived any errors of law preserved in the trial COURT.Since his main issue of claims raised is a. challenge to the trial Court's/judge's jurisdiction;over the[ir]2subject~ matter and Parties of interest.In the interest of just:ice,may .this Texas Court oi Cciminal Appeals take judicial notice,pursaunt to Rule 20l(a), (b),(c), (c), (d)T (e), . .

(f), . (g)-of

. .

the Texas. Rules of Evidence,that the fraudulent indictment issued under cause number C-396-010512-0943395-D,.is not a criminal complaint under the laws ofiTexas,and the trial Court's judge never acquired exclusive,nor competent j urs idi c\ion over .the subject-matter ',sub_,j udi ce. "Thus, lack of .

subject-matter j urisdiction over a[ny] Case.cause of action or citation renders a trial Court's - judgment void:Ex Parte Seidel,39 S.W~3d_221,224~25,n.4(Tex.Cr.App.200l);Hoang v. STATE,872 s.w .. 2d 6?4 ,Supra(Tex.Cr.App.l993)."A defect which renders a sentence void may be' ra'ised a·t· any time or s,tage,and for the fi_rst time of appeal~'Id.

'B) Relator states that the correct procedures for entertaining a ~rit of habeas copus has not been taked in this Case at bar.Nor has the correct legal and proper person been serv~d service of process.Because the trial Court's judge hasdeviated from the normal habeas corpus procudures.And in stead has arbitrarilyallow ~d~an illegal third party intervener(s) to file or and submittillegal imp-

'f,· roper baseless motions in opposition,but as third party under an Amicus Curiae's Response to Relator's [Applicant's] Applica~ion for a writ of habeas corpus.Thus, Se-rvice of process····,.h·as-·'·not been execut·ed on the Custodian of record; Respondent-

7 ·: :Eddie:D~B~keri(or;a·sutcessor if'reassigned,ett);pursunat·to:Articles ll.Ol,ll.-

102ill~03.;·.J:~i--.~64,ll.05,11~07,§ 3(a) & (b).ll.ll,ll.l2/ll.l4(l·t'.to {5),*11.15,*ll.- 16(TCCP) & 11.23,11.26,11.27,11.28,11.29,11.30(1) to (5).,11.'31.11.32,& 11.36-" The Applicant may be Brought before the trial Cour.t: •. These rule of law allowsor -permits service on the legal person having custody of the prisoner/Applicant or service on the legal government Official or Agency in the manner proscribedby these said State's laws(inaccord~with aforementioned federal-Supreme Court's precedent)for serving a summons or the like process on the correct legal Respondent (s):rd ..•. These said provisions are to be applied with the service of 'summons or like process'-under Texas Rule of Civil P~6cedure 106 or/and 2la-but - rule 106 provides that the initial citation(summons~ may be served by delivering a copy of the citation and petetion(complaint),in person,to RESPONDENT(s),orby mailing a copy of the citation and petition to the Responden~ of interest~via certified mail,returned receipt requested.The trial Court's judge,or and a Sharen Wilson,with Frieda McMillin have used illegal and unlawful motion practice to· cause the dismissal of Your Relator's Application for a writ.of habeas corpus, along with his memorandum of law's pleadings,and have departed from guidance of State law ,and have erroneously failed to act with reference to any guidingcprin ~tples of law,failed to analyze and apply the law correctly,and by suchd0~

ion of the correct procedures,has acted in an arbitrarily and unreasonalbe marr-: er so inconsistent with legal and substantial due process of la~ as to render~ 3.Coat.

the trial Court's/judge's judgment void ... The unidentifiable habeas corpus-.· judgment may be an intruder1if not an elected or appointed judge under the-. provisions of the Texas Constitution1so as to express Respondent(s) ~andling­ Court is the 396th judi~ial District Court of Tarrant Co~nty1Texas-where S/heis ~uly acting in an judicial capacity1as a duly elected or appointed District Judge.Whatever its capacity for the trial Court1Relator seeks mandamus relief upon him/her or they1as a whole !for both failing to act upon the contents written in the me~orandum of law1and hampering1otherwise hindering1Relator's federal and State of Texas Constitutional rights1including State and federal lawrequirements of :[Equi table]access of inmate' ( s) 1 to a vai 1 himself to the Courts - for hearings under this civil action sub judice.Thus1said judge has committed abuse of power and authority when S/he fails to'perform her/his ministerail duties employeed by State law ... Relator has provided Eddie D.Baker1as Custodianover him1a copy of his separate1but attached memorandum of law1so Baker will - have prepared his trial Court's duplicated copied documentation,and produce it in the said trial Court-in showing whether Baker has any actual legal papersto justify Relator's imprisonment ... However1thus far1Responent(s) has not took legal-proper procudres to deliver your Relator to said-:-:-.-"·Responent who shoulEL- ·-

1

hav~n~ Relator under illegal and unlawful restraint ~r~~r~-Baker's Custody,and - - - -· .

said trial Court's judge must view the original exhibitation1''but only if demanded " ... and commanded that his[Baker] to produce and have your Applicant/Relator before said Court instanter.Article ll.27(TCCP)-& 11.31 states to WHOM the writ of habeas corpus is to be served1and [Shall]bring befoi!Se said habeasjj.uu~g:e

Who shall examine the writ'-Application/petition and the _papers attached to it; and then and there if no legal cause has been show~ for the false imprisonmentand restraint 10r 'if it appears that the imprisonment or restraint1though asif first legal,cannot for any cause be lawfully prolonged1the Applicant/Relator [Shall] be discharged.i.e.1Aricle ll.40(TCCP).And aforementioned federal precedent insupport ... of trying to comprehend why the habeas satia judge did not - chose to file the correct laws for procedures in habeas c6ipu~ proceedings subjudice ,rather than allowing a paper brief as the "STATE'S RESPONSE TO APPLICANT- 's APPLICATIC)N FOR A_ WRIT OF HABEAS. CORPUS ? '"and erroneously f~iled. to compel ~-11 .appearance .of Eddie B. Baker;~~·ut permitting Sharen Wilson and Andrea Jabobs (ADA) to. submit documents for improper1illegal and unlawful purpcises 1 and - CaUSe l:lOneCeSSary delays 1 and needleSS increase in the. CQ'S't Of -1 it iga ti0n • See Ryland V. Shapi-ro., 708. ·F .. 2d 96 71 97 2, n. 5 (5th Ci r. 1983) (ci•ta tion omit ted) ; Cf. Hall V.Mackeryl720 F-.Supp.26~,262(SSNY.l989)(Prison officiais sanctioned for causing delaya ~n proceedings);Boonie V.Elrodl706 F.Supp.6361638-39(ND.Ill 1989)(Sanctions imposed against jail Captains lawyers for baseless motions);Knop V.Johnsonl 667 F.Supp.5121515-22(W.·D.Mich.l989)(.sanctti6ns imposed for abusive motion practice)1aff'd i~ partinent part,977 F.2d 996,104(6th Cir.l992)1certldenir edlll3 s.ct.l4115(1993);Goka v.Bubbitt1862 F.2d 6461650-52(7th Cir.l988)("-

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Appellate Court directs consideration of sanctions imposed against prison- Officials lawyers);Cf.U.S.V.Winestock,340 F.3d 200,207 1 n.7(4th Cir.2003),cit± ing .Dunn V.Cockrell,302_ F._3d 491-~2,n.l(5th Cir._20(1)2) 'per .curiam) ,.c~rt.denied, U.S. ,123 S.Ct.l208.,154 L.Ed.2d. l01_3(2003) 1 in part:_ u An example of a proper Rule 60(b)(FRCP) claim(equivalent to Art.27.08-

(4)(TCCP)) is an allegation that the government agents perpetrated a fraud-uponthe -Courts during the collateral review proceedings~Id,at Winestock,340 .3d ~~e-

207,n.7;Ryland,at 708 F.2d at 972,n.5: 11 In relevant part: Of what avail is it tothe indivdual rights to arm him with a panoply of Constitutional rights if, 'w when he seeks to vindicate them,the Court-room can be hermetically sealed against him ' by a functionary,Who,by refusal or neglect,impedes the filing of hispapers 11 ; and 11 that ~- ..~_t:ate Clerk of the Court • s ·has negligently delayed the fi l---

ing of [this] Petitioner's petition.on appeal,and that the delay ~is intefferd· .·,_..

ing with this Relator's [Individual's] rights of access to the Courts~Id. C)The Respondent(s) are clearly and constructively denying Relator any means of equitably~availing himself to the common-law or and Constitutional Court,as said Respondent~ks) erroneous failures to perform it's ministerial function,under the facts of this case,means Repondent(s) has personally edit-ed and censored Applicant 's/Relator's documents and has refused to perform hisjher duties under its sworn Oath, 'unless it's an intruder who is interfering'ior a recalcitrant Clerk- (s) is participating in refusing to file Relat6i's properly-executed legal documents ,theny_IDandamus will draw-out the culpr::it or violator of rights,and make - Relator's legal matters a public record -r#( ::-existance. Even though Relator's sworn statements herein are in good faith , and at tempting to affirm the truth- .-silt intruder(s) and said judge are impeding the progress of any thing Relator has want[ed] to file,process and have docketed within the trial Court's record ... This relator±is-in a position as in Deleen V.District Clerk,l87 S.W.3d 4J3,474-_ 475,n.l,2,3,4,-5(Tex.Cr.App.2006).Hence,Relator is also seeking an Order instructing the District Clerk of Tarrant County to accepy his petition as is,file it, docket it and have it processed and then presented to the said Court's justicesfor due consideration upon the relief Relator seeks.Rather than harboring the - darker motivation of keeping the trial. judge's docket clear of R~lator's petitions ~Id.,citing Winters V.Presiding Judge o~ the Crim.Dist.Ct.Nu.3,ll8 S.W3d 773~ 775(Tex.Cr.App.2003).AS expressed through-out [t]his m?ndamus petition,this Re- .l.a.tor. has ~ ' -. .

shown he. has no other ade,quate remedy at law to pursue his requestedrelief other than with this Application.Even though the law established expres- ~

ses he has a clear right to the relief sought,and the merits of this Relator's claims for relief aie beyond dispute;as a legal right that necessitates that the law plainly describe~ the duty to be performed.Such that there is no room for - the exercise of discretion~Id. D) Andrea Jacqbs and Sharen Wilson are allegedly of the Criminal District Attorney '(s) Office of Tarrant COUNTY,Te:l{as,and together submitted and filed sO.;d- baseless and unlawful briefed motion inopposition,with the Tarrant County _-

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District Clerk's Office ,supposely on or about 7/23/2015,and joindly have misrepr-esented facts and misstated laws in this case at bar.First this issue of ~raudulen~ ,indictment, and void J~udgment to Relator's conviction/sentence does not fall under. the abuse of the writ act.So Relator never had to over come the f·al!=>ely impliea·6- subsequent bar to the writs filed or writ bar.See ...,oprecedent cited in RELATOR"S memorandum of law.Hamilton V.McCotter,l72 F.2d 171,183-84(5- th Cir.l985)(citation in original};Cf.State V.Johnson,821 S.W.2d 609.612,& n.2- (Tex.Cr.App.l99l}(four criteria in original),and State V.Terrazas,962 S.W.2d 38- supra(Tex.Cr.App.l998),''even though this Court did not .expressly decide at that time whether the defendant/Applicant is entitled to a dismissal for said ConstS itutional violations,it remanded the case to the trial Court/Appeals Courtfforit to consider (1) " Wether the defendant was in fact denied her/his right to due process of law";and_(2) "Whether dismissal was[is !] the appropriate means to neutralize the taint of the_Constitutional Violation of law:Id.

III.

A) RESPONDENT(s) has adopted baseless and unfounded Responses by Shareni.ilson, Frieda McMillin,and Andrtea Jacobs,"as ·if for Eddie B~Baker,failed to Complywith the certification reguirem~nts for this Relator's appeal and there procedures taken are with a substantial defect~tbat deprived the habeas corpus Court and its judge or intruder of jurisdiction over this case sub judice,and jurisdiction can not be retroactively obtained:State V.Riewe,l3 S.W.3d 408,supra(Tex. Cr.App.2000)(this Court did not allow the PROSECUTOR to amend its appeal):State V.Muller,829 S.W.2d 805,supra(Tex.Cr.App~l992}(the STATE'S notice of Appeal must be filed within 15-days in order to invoke the jpt~~d~sti¢~ao~•\th~dApp~~iliate . . ... _,.,- ..... · . -· .

Court).However,whether the illegal third party interveners or the habeas judge, ARTICLES 27.08(4),or & 44.01 does not preclude this Relator from filing a petition for a writ of mandamus to correct judicial action that is clearly contrary to well-settled law,whether that law is derived from a statute,rule, or Opinion of a Court.e.g.,State ex rel.Healey V.McMeans,884 S.W.2d 772,supra(Tex~Cr.App.-· 1994).Relator's notice to with draw his unlawful and illegal guilty plea,as incoerced and induced is-an appeal for jurisdictional defects,and Article 44.39- (TCCP) can be applied too,because the Relator in this habeas corpus case is detained by a person other than an Officer,and thus,the Sheriff of Anderson County of the Stat~ of Te~a~that must recieve the_mandate of this Appellate Court,who commands that an immediate cause of action be to the person so held to be discharged .,.-and-t<hatt[sjc?]t~ the mandate Shall ·be sufficient authority therefro:Id. B) In this instant cause of action,this Court of criminal Appeals can hold that Relator has shown that he has no adequate remedy in law to compel the habeas - Court's judge or intruder,to issue an Order and issue the writ of habeas corpus to the right legal person holding Relator unlawfully against his will,and to issue an ORDER that all or any amicus or illegal third part~'s briefing filed ±n this Case at bar,be STRICKEN from the record.Mainly because ~0 authori- ~ation h~s been n~oed for p~rmitting Third Party's illegal motions or brief-

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.<.

Response-as-an a~swer on the stationary of -A-"STATE in opposition and is - holding herself or their selves out as an attorney under Amicus Curiae,as if for· Eddie D.Baker,and his .business with the Texas D~partment of Criminal Justice .This intervener'(s) briefing is not legal,and it should be beyond the scope ·of any reasonable interpretation of the role of amicus curia~ and is nothing more than an advocacy by unathorized attorneys on behalf of_their/.her alleged Clients ... which are responses being presented for improper,illegal purposes,suc-" ch as to cause·impediments and obstruct the due course of j~stice.This saidimpediment {s contrary to Article I,§ 16 of the Texas Constitution,and is app~ licable to this case at bar,as it precludes the interfering with contracting rights,and precludes the hinderance of liberty interest vested rights under - .legal and substantive(rights ) due process of law and the Equal protection ofthe law.Any Predepositive Court order would be a nullity,and void,as it impair -~- and interfers with Relator's absolute rights to obligations of contractsand negotiations.SeeHHarkins V.State on Behalf of ~exas,773 S.W.2d 401,403-04,- ···n.l-3,4--S(Tex.App-Houston [14th Dist.] l993),citing Alford V.City of Dallas,-

738 S.W.2d 312,318,ante III & N.7:

~Texas Constitution,Article I,§ l6,expresses-that there shall be no lawspassed of Bills of Attainder.Ex post Facto, [n] or retroactive laws~Id.

·See also the .Fourteenth Amendment,§ l's Clause{citation omitted). Then ind~~d,in the American Judiciary systems,the Exe~utive Branch,and the Congress are alike and the[ir] totality of power is denied to either the National or the State governments or and to any component part of [Our] federalism.Also see Artie! I,§ 9,subsection 2 & 3,can be found to be in~ccord with Article I,§ 12 of the Texas Constitution and Article 11.07,§ 3(b)(TCCP).Thus,the State of Texas People do have a Statutory and Constitutional rights .to th~ privileges - of the Writ of habeas corpus-issuance against procedural ~f ~tbitrary judicial directives,for the[ir]purpose of Bills of Attainder,but prohibited by the laws of the Land.Ibid ... And see u.s.v,Frady,456 u.s.l52,163,n.l4(1982)(cit~tion omitted ).Mandamus against the Respondent(s) is to cure deviation from the legal - rule -that- is error of law and in this Case sub judice,said noted errors have not been waived by Relator.And his Court appointed State defense Counsel had - no legal authority to waive such plain errors of law.Not .even with Relator's - or Counsel's Consent.As they are errors of none-waivable,nor can they be forfeited .e.g.,Keeter V.State,lOS S.W.3d l37,142,n.8-9,& n.l0-l2(Tex.App.-Waco 20- 03),citing Marin V.State,85l S.W.2d 275,279,280,28l-82(Tex.Cr.App.l993). It follows,that "this is not a question of evidence but of subJect-matter jurisdiction .Coleman V.State,918 S.W.2d 37-38,43(Tex.Cr,App.l996);State V.Moff,- 154 S.W.3d 599,60l,n.l-2(Tex.Cr.App.2004).This Case will always be uncorrected and void until! corrected i~ th~ interest of justice,and whether illegal or improper jurisdiction,the tolling of statute of limitation will be authomatically applied,so there is no statute of limitation for frauJupon-the-Courts.Parter V. Cumming,216 S.W.3d 905,908,n.2(~ex.App.-Eastland 2207)(same);Davis V.State,227- S.W.3d 733,736,n.l-3(Tex.Cr.App.2007),~lack of subject-matte~ jurisdiction,as Court' document[indictment]not purporting to be a charging instrument~Id.

·See also Brown V.Edwards,72l F.2d l442,1448(5th Cir.l984),''probable Cuase ?.Coat.

issue in civil action not barred by Prisoner.'s prior guilty plea when not - actually litigated in prior proceedings;since illegal arrest & no valid warrant .existed,and thus,mandamus was available):Rooding V.Peters,92 F.3d 579-80- (7th Cii.l996)~·· Action to recover damages for UNCONSTITUTIONAL incarcerationdid · not accure Untill Prisoner prevailed in mandamus action and,thus,Writ of - mandamus not res judicata,where violations accured in prior litigation~Id.

However,these cited and invoked cases all hold that the present issue can be raised at ~ny hime,or any stage of a civil action proceeding;and those said - cases simply cite to their antecedents with established- Constitional and statutory authorities for the proposition that a jurisdictional d~fect can never - be cured by procedure default,or abuse of the Writ act.Hamilton,supra,l72 F.2d at 183-84:Garcia V.Dialf596 S.W.2d 524,52528,n.6,9,19,20 & 530(Tex.Cr.App.l980). This Texas Court of Criminal Appeals has jurisdiction to issue a Writ of Mandamus in this cause sub judice,pursuant to_ Article %§,5Aof the Texas Constituion and pursuant to Article A~04(TCCP). Wherefore Pemi~es Duly co~sidered,the r~lief sougth1by Relator to prohibit illegal third Prty's brief from being adopted,nor acted upon,and instruct the trial Court's habeas judge to strick,.and stricken Sharen Wilson's,Andrea Jacobs .. and or Frieda McMillin's brief-ed motion,and it's attached Order1but stricken from the record as unlawfui,illegal motion practice,and to then and there sua sponte its Order to serve the correct and legal habeas corpus RESPONENTlEddie D.Baker)~ according to Texas rule of Civil Procedure,& Texas Rule Of Appellate Procedure aforementioned-within (14)days of entry·of its Order;and any other relief this Court:of Appeals justices find deem and necessary.To meet the ends of justice. may said Court's justices keep consideration Relator's motion for ~anctions under both federal and State laws-~isement during the pedency of this'civil actionsub judice. Executed This day of)];/--/, 2015 ...:.:_;;?l'o/~ ~~~ ~ · Respe~ly Submitted, ~

~

J.14L-~ a a

___

J"i0271

An inhabitant of the Mark Wayne Michael;Unit,2664 F.M.2054,Tennessee Colony,Texas -located In Anderson County,of the State of Texas.75886.And as a Relator,! hav€ submitted My--Thegal Affidavit of Truth--And Certificate of Service •...

I,John(actually Joe !!)Zavala,am herein declaring and stating under statutory laws,and Civil laws of Texas,otherwise I affirm under penalty of perjury,that I have read these statements of mine for a writ of mandamus,and that because of My poverty,! can not pay or prepay the docket fee,costs for said mandamus.! believe I am entilted to redress of My petitions in the above styled,caption and numbered cause,case or and civil action.Inwhere,I have read My own attached petition for a Writ of mandamus,and swear that the above allegations/accusations of fact contained therein are true,accurate,torrect,and complete to the best of my knowledge, and resourses.My affidavit hereintoo,sould,also be considered as specifically in~ corporating by reference as the facts stated in·My writ·of·habeas·corpus application .Jand its attached memorandum of law,along with all my exhibits;·insuppott-·o·f -'--· the facts asserted in this writ of mandamus petition,that are not specifically - addressed herein,and are such' facts being reported to the appellate Court,as those facts in the habeas petitio~may not appear from the District Cl~rk's record. This Affidavit of Truth is made on information discovered in my trial records,and thus, I swear under penalty of perjury ,pursuant.~ Te~FJ- vj. Pract. & Rem. Code,§§ 132. -001-132.003;18 u.s.c.§ 1621;29 u.s.c~:§ 1746._,2.£2~.::;rr'k'd.L.r-I have also providedthe tria), Court~' p esiding judge a copy of the sa. , y r~ Pos al Se11vi _es. pn- _ the .3/.4 day of (} , 2015. ,/ ' .3//2...¥'-!.· . elat r p~lica -Pro Se

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FILED

,. TH9~~~80~~!~1~~RK JUL 23 2015

NO. C-396-010512-0943395-D TIM _ _ _ _ _ __ BY_ _ _ _ _ DEPUTY -

EX PARTE § IN THE 396th JUDICIAL § § . DISTRICT COURT OF §

JOHN ZAVALA § TARRANT COUNTY, TX

STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS CORPUS

.II I, . 4 ; ~ .. . . ' -':. :,.

TO THE HONORABLE JUDGE OF SAID COURT: - l ~ 'i \.

COl\tiES NOW THE STATE OF TEXAS, by and through its Tarrant County

Criminal District Attorney, and in opposition of the Application for Writ of Habeas ' i

Corpus respectfully states the following to the Court based on its information and . . i •

belief:

I. IDSTORY OF THE CASE

The applicant, JOHN ZAVALA ("Applicant"), pled guilty, pursuant to an

open plea, to the offenses of first degree felony arson and first degree felony burglary

of a habitation on June 7, 2005. See Judgment, No.- 0943395D; Written Plea

Admonishments ("Admonishments"), No. 0943395D, p. 1. The court assessed

punishment at two concurrent terms. of confinement -for forty-five years in the Texas ; r • '

Department of Criminal Justice - Institutional Division. See Judgment.

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.; The Seventh Court of Appeals affirmed Applicant's conviction on December

2, 2005. ·See Zavala v. '

State, No. \07-05-0250-CR, 2005 WL 3272364 {Tex. App. - ·

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Amar~llo, Dec. 2 2005, no pet.) (not designated for publication).

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On January 10, 2006, Applicant's first and second applications for writ of

habeas corpus were dismissed as premature as Applicant's direct appeal was-

pending. SeeEx parte John Zavqla, Nos. WR-63,888-01-02, .Nos. C-396-007542- . ' I I . : 0943395-A, C-396-007453~09433~5-B (Tex. Crim. -App. Jan: ·10, 2006) (White • ~-

Card).

On August 30, 2006, Applicant's third application for writ of habeas corpus

-. was denied without written order dn trial court's findings without a hearing. See Ex ' . '

parte John Zavala, No. WR-63,888-02, No. C-396-007765-0943395-C {Tex. Crim.

App. Aug. 30, 2006) (White Card).

ll. APPLICANT'S ALLEGATIONS

Applicant alleges his confinement is illegal because (1) the trial court lacked

subject-matter jurisdiction. See Application, p. 6-7.

ID. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF THE RECORD

There is no need for an expansion of the record. The State submits that the

record before the trial court is sufficient to resolve Applicant's grounds for relief.

Applicant ~eed NOT be brought baclc to Tarrant County for 'a hearing.

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N. ARGUMENTANDAUTHORITffiS

A. Applicable Writ Law I .:! •. . In a habeas corpus proceeding, the burden of proof is on the applicant. . Ex : parte Rains, 555 S.W.2d 478; 481 (Tex. Crim. App. 1977). An applicant '~must·

prove by a preponderance of the evidence that the error contributed to his conviction··

or punishment." Ex parte William~, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In · I . . , . . ~rder .

to prevail, the applicant mus~\pre~ent facts that, if true, v.vould entitle him to the ' .

relief requested. Ex parte Maldonado, 688 S.W.2d 114, 114 (Tex. Crim. App. 1985).

i ' Relief may be denied if the applidnt states only conclusions, and not specific facts.

·Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, aD. applicant's sworn allegations alone are not sufficient to prove his Claims. Ex parte

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Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).

B. Applicant's application should be DISMISSED because the application fails to allege sufficient speCific facts to overcome the subsequent writ bar.

Applicant argues he can file this subsequent application because he did not

discover the issues until he received the trial transcripts. See Application, p. 3.

Howeyer, that is not a permissible exception. The Code of Criminal Procedure

provides that:

(a) If a subsequent application for writ of habeas corpus is filed after fmal disposition of an initial application challenging the same convjction, a court may not consider the merits of or, grant relief based

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ol1 the subsequent applicatiqn unless the application contains sufficient specific facts establishing that: _ ·. . · - - - -I - - (1) the current-claims and issues have not been and could not have been ; presented previously in ari original application- or in a · previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed - the previous application; or

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(2) by a preponderance of the evidence, but for a violation of the United . States ,Constitution no ratidnal juror could have found the applicant gul'ltybeyond areasonable d.Oubt. . . ···:··::········.·:::-:··>:···.-··:·---,,,,, . .... _" ...- ---- "" ------ ........ :...._

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- _,___ .

...- . . ----~·-"'-•

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(b) For purposes of Subsebtion (a)(1), a legal basi~- of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recogniz,ed by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that'date. · -

(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

Tex. Code Crim. Proc. Ann. art. 11.07 §4.

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The purpose of this statute is to limit a convicted person to "one bite at the

apple". Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000). This

statutory provision also bars the litigation of claims which could have been

formll;lated at the time of the original application for Writ of habeas corpus. See Ex

Fontenot, 3 S.W.3d 32,34 (Tex. Crim. App. 1999).

Becaus'e Applicant's claims are based on the trial record, the factual basis for '

his claim was available on or before the date he filed his first application. Likewise,

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~pplicant's claims are based on ~ell-founded legal principles which existed at the I . ; time he filed his first applicati~n. See Application; Memorandum. Finally, ii . ~ ! '

Applicant presents no evidence ihat he is actually· innocent. ·See· Application; · · i Memorandum. In order to prevail on the exception that no rational juror would have

· found him guilty, an applicant must make a prima facie showing that he is actually-

innocent. Ex parte Brooks, 21;9 S.W.3d 396, 401 (Tex. Crim. App. 2007). .I . . rnerefore, ~pplicant has failed to\_present sufficient specifi~facts· to overcome the._ .... ,..._'::·.· --~-.:~-=~-

subsequent writ bar. Tex. Code Crim. Proc. Ann. art. 11.07 §4.

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Thus, this application should be DISMISSED AS A SUBSEQUENT

. APPLICATION.

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V. CONCLUSION .,

Wherefore, premises consi~ered, the State prays-that this Court recommend . !

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!that Applicant's application ~be DISMISSED -AS ' A SUBSEQUENT-· i APPLICATION.

·Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County

Andrea Jacobs, Asst. Criminal District Attorney State Bar No. 24037596 401 West Belknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant, Mr. John Zavala, . . TDCJ-ID# 01310271, Mark Wayne Michael Prison Facility, 2664 FM 2054, Tennesse~ Colony, Texas 75886 on the~ay of July, 2015.

~r-~ ~~~------------

. Andrea Jacobs

CERTIFICATE OF COMPLIANCE

:I certify that the total number of words in this State's Response is 1235 words

as determined by Microsoft Office Word 2010.

Andrea Jacobs

_, . ·I ·I NO. C-396-010512-0943395-D I EX PARTE . I

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§ IN THE 396thJUDICIAL l '

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' { § DISTRICT COURT OF §

JOHN.ZAVALA § TARRANTCOUNTY,TX ORDER

The Court finds that the application of JOHN ZAVALA.-("Applicant") does bot meet the t r~quirements • •

for '

con~ideration as a subsequent application for- writ of I · · --

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fabeas cotp~s- and recommends rat it be DIS:MISSED ~S A.SUBSEQUENT·--_ -· .·.. APPLICATION pursuant to article 11.07§4 of the Texas Code of Criminal Procedure. The Court further orders and directs:

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1. The Clerk of this Court to file this Order and transmit it along with the I I

·writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.

2. The Clerk of this Court to ·furnish a copy of· the these findings to Applicant, Mr. John Zavala, TDGJ-ID# 01310271, Mark Wayne Michael Prison Facility, 2664 FM 2054, Tennessee Colony, Texas 75886 and to the post-conviction section of the Criminal District Attorney's Office.

SIGNEDANDENTEREDthis _ _ dayof _ _ _ _ _ _____;J2015.

JUDGE PRESIDING

···~,

C ~3Jb'.-.CJ/C)5i2"#L:Kjt;5n5~-d) FILED. · Case No. . . .· . . . TH~~.41'b8o~~T. CLERK (The Clerk of the convtctmg court wtll fill thts hne m.) • EXAS JUL 09 2015

IN THE COURT OF €RIMINAL. APPEALS OF TEiAfJQ§~·-----

fN:______ --

DEPUTY

APPLICATION FOR A WRIT OF ~EAS CORPUS ' SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

Joe ·zavaiaCaka~John Zayala)

.NAME: -----'r---'-"-----

.DATE OF BIRTH: -~~----=--------..;......._--------­ .PLACE OF CONFINEMENT: _;;,:.Maara...k::.....,;,:W:Ja'""'ylLinu.e'"--~M:;:.t~·c~oo.~hwaill.leliO.ola.,___~---------

.TDCJ-CID NUMBER: ~!_3_1_0'-2_71_·._ _ __ SID NUMBER:

(1) .. This/plication concerns (check all that apply):

o/" a conviction · o · · parole

/ a sentence 0 mandatory supervision

. o time ~redit __ out-of-time appeal or petition for discretionary review .

(2) What district court .entered the judgmept of the conviction you want relieffrom?

(Include the court number and county.)

396th Distric~.Court .Tarrant Coun~y -~exas ·.t -·-~....... - -

(3) What was the case number in the trial court?

0943395D(for C-996-007542-0943395-A:C-396-007543-B)

(4) What wa~ the name of the trial judge?

Georg~ Gallaqher

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Revised: September 1, 2011· ATC-11.07

(5) Were you represented by counsel? If yes, provide the attorney's name:

Ray Hall-· Junior

(6) What was the date that the judgment was· entered?

June 7th,2005

(7) For what offense were you convicted and what was the sentence?

alleg·edlv Arson (8) If you were sentenced on more than one count of an indictment in the same court at the same -time, what counts were you convicted of and what _was the Sentence in each count?· · ·

(9) z e pie&you entered? (Check rme.)~ guilty-open plea o guilty-plea bargain o not guilty o nolo contendere/no contest ·

· If you entered different pleas to counts in _a multi-count indictment, plea_se explain:

.71/z

(10) What kind of trial did you have?

~ .

o jury for guilt and punishment

o jury for guilt, judge for punishment

(11) Did you testify at trial? If yes, at what phase of the tri did you testify?

(12) Did you appeal from the judgment of eonvietion? ~ J / oyes _ ~/?ow~~.

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Revised: Septe_!ll~er 1, 2011 ATC-11.07

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' ·-·-· If you did appeal, answer the following questions:

(A)

(B) What was the case number?

(C) Were you represented by counsel on appeal? If yes, provide the attorney's name:

Ll//fl .

(D) What was the decision and the date of th~ deCision?Lt/A . (13) Did you file a petition for discretion evie'!' in the Court of Criminal Appeals?

If you did file a petition for discretionary review, answer the following questions:

th~ .,;.se n~mbe~? ~· .

(14)

(A) . What was

(B) What was the decision and the date of · · /}/

th~ decision? z=

Have you previously filed an application for a writ ofhabeas corpus under Article 11.07 oft exas Code of Criminal Procedure challenging this conviction?

o no

If you answered yes, answer the following questions: jJ (A) What was the Court of Criminal Appeals' writ number? ~1!..­ (B) What was the decision and the date of the. decision? c,R,I}tf. )4,ti£h'- (C) Please identify the reason that the current claims were not presented and could not have been presented on your previous application.

once I rec~eved Mv trial transcripts.T was blessed to have a sui JUris inmate discover such fraudulent induced mentment was used to coerced Me into beinq I could be tried on such void indictment I depended on counsel for his legal training to file a motion to ~uash the indictment or and challe~e the triaJ ~curt's subJect- matter JUrisdiction over said cause of action aaainst Me.

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Revised: September I, 2011 ATC-11.07

So Ray Hall Jr and the prosecutor intentionally failed to disclose sue exclupatory facts o¥ Pvirlen~e.Ree Mv attached but separate rnernorandurnof law and facts in support of this application.

. (15) Do you currently have any petition or appeal pending in any other state or federal court? ~ oyes ~ ·_·

If you answered yes, please provide the name of ~he court and the case number:

. -.. . (16) If you are presenting a claim .for time c~~dit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony.~onviction, iicludi~~te"jail felonies) ·

o yes - ~ ··

If you answered yes, answer the following questions:

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(B) Did you receive a decision and, 'if yes, what w~s th

(17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the; facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. q your grounds and briefsummary of the facts have not been presented on the form application, the Court will not consider yourgrounds.

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Revised: S~pt~mber I, 2011 ATC-11.07

If you have more than four grounds, use page 10 of the form, which you may copy as many times as_ needed to give you a separate page for each ground,· with each ground numbered in sequence. . .

You may attach a memorandum of law to the form application if you want to present legal authorities, but the Court will not consider grounds for relief in a memorandum of law that were not stated on the form application. If you are challenging the validity of your conviction, please include a summary of the facts . pertaining to your offense and trial in your memorandum. · I ;as an Applicant Appellant have prese~rved Mv obsolute rights. to raise.the issues I procJ~imed within Mv separate but attached Memorandum of findinas of facts and Conclbsions- of law.as n6ne-wai~­ able.nor can thev be forfeited bvCoun~el~Rav ~all Jr,as fraud vitiates ~11 contractR/indictments/judgments a~d thus,I bring c6ntentions to challeng~ the trial Court's an~ it's judge's JUrisdietion-

'I over cause#0943395-D(lnte~twined' with cases#C-396-007542-0943395-A: I c-396::-007543-0943395-·B) ·.I state: that I -reserve the right to an1end this-designation so a~'to not have waived ~ny errors of law preserved in thetrial Court.itherefore,I incorpo~at~ by reference My separate but attached memoratidum of law(findings of facts ~nd co~clus~ ions of law,and it's Order),alonf:J withall supporting document.s,including My supporting exhibitSiPD~t~~a-~ri~e~~s,an~uaQthcrities raised within my ground oen error of law.aj if set out entirely herein,for the pu'rpose of_ this Application for issuance of the -writ of· habeascorpus .ad testificandum.and on further basis of testimonv.evidence- to be adduced~on a der.novo or/and evidentiary hearing in connect~on and anticipation to be heard' with thia Application for a writ of ha~· eas corpus,herebv moving this Texas Court of Criminal Appeals to set aside ·the judgment as void ab initio, that was illegally renalere.d aga· inst me for Arson.But that incorporated bv reference memoiandum is - made for the purpose of this appeal of mine,submitted contemporaneou: ly herein.

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R~vised: September I, 2011 .ATC-1 1.07

GROUND ONE: Error of Law: There Is NO-Extant True Bills of Indictment, Judgment Is Void for TrialCourt Lacked Sub:ject-MatterJurisdiction.

FACTS SUPPORTING GROUND ONE: 'fhe Court Appointed, State defense Counsel Mr.Ray Hall Junior.Committed intentional constructive breach of his fid-. ucia rv duty, andoblioations. and· thus. his representation was malpracttce ~· law,when he abandoned his duty to file any kind of ~eaningful motions to chall~ge the trial Court's accepted void indictm•nt.Such as notice t include arid Augmerit the record with a motion to quash indictmentpto set- 1nd1ctment as1de:d1scoverv.and d1sclosure:w1th Bray V.Maryland(taw)in- . suport.Amono other tvpes pfmotions to compel the Prosecutor to disclose i . . . . . . . 'all f~vor~ble evidence.Since the indictment used bv the Prosecutor is not a Grand ]Jlll¥-·Panel' s true Bills of indictment. It is a fraudulent and forge -d 1il61ctDieilt i::~sued by the Prosecutors and their Off1ce of BusJ.ness Off· I icials.How~ver.~all . .

had a ·. dutv to investio~te . ~ .

the. cause of action underi b943395 D (intertwined with; cases#C-396-009542-0943395-A: c..,.396-0.0754J-0943- 1395-R,) .counsel d i::i not do .. his job and his perfo'rmance was an intentdonalahandonment of his legal abligations to protect My civil rights un~r oui United States Constitution.and that of the Texas Constitution as well.Sinc the trial Court's. ijudge never actually acquired compete111t or excl usi ye, nor original jurisdiction over said cause/cases or citations.jurisdictional ~ Provisions alsO rem6val jurisdietion over iH~ P~~tli~ from said trial Cour in fa·ct. it must- also· remove any appointed motions for_ Court appointed Coun sel and h1s alleged filed motions. 'if any-? 1 .~or Mv deEense.Thus.Mv inducec and aoerce~ quiltv plea was notknowingly.intelligently,and vol~ntarily gi· ven.and therefore.void ab initio.! never actual recieved real notice of - the nature of the charged offense sought against Me-by the Prosecutors.- judge, and defense counsel. Hall knew. as a· trained lawver. I was unlawful! v illegally c~rge-d.But he refused to challenge the warrantless arrest & and thQ l~ck nf prohahle cause.These statements of Mine are to be incorpori ted DDe ~ference tto My attched meorandum of law.Along with Mv exhibits and anv or all pertinent documentatiol<ll<d o ·CGPPAR9j.pprwit.h ..My ~trail Court's case inchief.As part of Mv want of jurisdiction ot Mv plea for juri*diction rna~ herein insupport cf my 17-page br:ief submit ted as mv memorandum of;:_law. I reserve Mv rio ~ioht to amend this designation so as to not waive any pertinent colorable claims/issues on appeal sub judice.

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Revised: September I, 20 1_1 ATC-11.07

GROUND TWO:

. &. SeJ'YP

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, FACTS SUPPORTING GROUND TWO:

;l-------:----;;..__------+---'--__;.__;_ ____;,..~-__;_;,..:...:...;_:.;:....:...;··....::-~---~·-...;_·.:. :.·--:....:~-:.:.-:.:-....:.·_..--·~. . -.-- . . . . -.. . .

. "· <u:.;j_·~--------~-----------

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Revised: Septem~er, 1, 2011 , ATC-11.07

GROUND THREE:

FACTS SUPPORTING GROUND THREE:

. -------------- --

7""---:----::-'.:...-.-.,.--.,.----;-;-----~--___;,----.;._;,.;...~...;____;;_;,·- ··f

:I ,-:+-:i_ _ ____;__ _ _..;..__ _...___ _ _ _ _ _ _ _ _ _ ____;__ __

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Revised: Septem~er: I, 2011 ATC-11.07

·: ..

GROUND FOUR:

FACTS SUPPORTING GROUND FOUR:

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' . . Revised: Septemb~r I, 2011 ....:. \

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.,

GROUND:

FACTS SUPPORTING GROUND:

:j_ - ~·-·-. -------- .·-. ~- - - --~-

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT ~LIEF TO WHICH HE MAY BE ENTITLED IN TillS PROCEEDING.

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Revised: September 1, 2011 ATC-11.07

VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicantis a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalf of an applicant, for exa~ple, an applicant's attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the "Oath Before a NotarY ~ublic" as petitioner and then complete "Petitioner's Information.," A non-inmate applicant must sign the "Oath Before a Notary Public" before a notary public unless he is represented by a licensed attorney, in w~ich case the attorney may sign the verification as petitioner.

A non-inmat~ non-attorney petitioner must sign the "Oath Before a Notary Public" before a notary public · and must also ·complete "Petitioner's Information." An inmate petitioner must sign either the "Oath Before a Notary Public" before a notary public or the "lnmate_'s Declaration" without a notary public and must also complete the appropriate "Petitioner's lnformation..:•purslifint_.- to Texas Ci vi 1 Practice & Remedy ·code-s. i§§.132.001~132.003. '

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:1 ··~jUTII BEFORE A N6T7\Ri ftJBMC

STATE OF TEXAS

COUNTY QFI'Anderson

_,::J~ko~z..~___,.2..~,.'t~l,L/i__..(,{"--~L..!9f-----'·, being duly sworn, u~der oath says: "I am the applicant I petitioner (circle one) in this action and ~now the contents ofthe above application for a writ of habeas corpus and, according

to my belief, the facts stated in the application are true.'~ pursuant tto Texas· Rtili:eiB of Civil Practice ~Remedy Code.§§ 132-001-132.003.-

capacity.

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Revised: September 1, 2011 ATC-11.07 ...... \'

PETITIONER'S INFORMATION

Petitioner's printed name: Joe Zavala (John Za val a-aka)

. Stafe bar number, ifappiicable: TDCJ # 01310 2 71

Addre:M?rk Wavne Michael Prison Facility 2664.F.M.2054,Tennessee Colonv.Texas75886 (Anderson Cotintv T~xas)

--:-·~--· .. ~ --- - ;_: ______ --· . -·-

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. - . INMATE'S DECLARATION -

Pursuant To Title 6.Chapt~r.l32:§§132.001-132.003 of the Texas Civil (Rule)Practice.& Reinedv Code,l --~ - s~~.Jr> --

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. - P'-

I ~~- a.

r - r,- .

I; :Su 2.. 2 "t tLa lct, _ , am the applicant I petitioner (circle one) and being presently inCarcerated in f..vt0 a IC (• I· Wt I C 1, c.c:e f. d~lare under penalty of perjury that, a~cording to my belief, the facts stated in the above ~pplication are true and correct.

of~~/

Signature Petitioner (circle one) Affidavit ei~~pplicant-Affiant-Pro Se

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Revised: September 1, 2011 ATC-11.07 - ·- \ -- \ .

PETITIONER'S INFORMATION

Pctiti"ncHI printed name: Joe Zavala (aka John Zavala) . Address: Mark WavneMicaelUni t, 2664F oM o 2054, Tenness~e Colony,Texas:75886 T DCJ#Ol3l0271 . .

Telephone:----------------- Fn: _________________________

:·! Signed on ---:--·="------L/......,.,..·:2~-· 20_LS.

r I .

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Signa-4:~~-. Affia~licant-Pr6

Se capacity·

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·Revised; September I, 2011 ATC-11.07 ..... \. '

· I~to The T€xas Court of Criminal Appeals,And its Justices Sup~eme Court Building,201 West 14th Street,Room 106-

Austin Texas 78701 •••••

JJoe · Zavala Pro Se 1 Petiti6ner/Applicant, Appeellant's trial Court is from the Versus, 396th District Court cf Tarrant Eddie. D. Baker ( sucessor), County to the-state of Texas,tried Senior Warden over the~ Mark Wayne Micael Unit, und~~.citatiqni0943395D;0943395D Niles Brissette(ADA)&-· Nicole- Nickols (ADA )et ·, al}.- •. ~ Tim Curry,Chief DA,et:~i:

AppeaJ.lees/Respondence(s)

Applidant'~.Memorandum Of Law In:Support Of Applicant's Proposed Findings of Facts,Conclusions of Law-'And _:order,Attached,As A Sepa·rate Dodumentation·. To Applicant '.'s Applicat.ion For A Writ -of Habeas Corpus: Plea For Jurisdiction -'_ . . .. ,. •, . .. · : .

To The-i 'I'exas Court of Cri~~n~l.~ppe~ls,_~.a_ll:d i_t_f[_Ju,st_ic_~s~Tr~al __,"CO.u'r~',sj1lc:3~:~;~1l'l_d~ Respondents~, P.lease~Take_JuCIJ.cJ.al iNOtl.ce, and- Let-t_here be UnaerstandJ.ng: · - - -· .:. - Now c~~es:,.Jbh~--z-~vala~Petitioner1App~_it~nt- herei'naf"te~·~a.'nd ·in. Prose. capacity~ in· ·the above, styled ,captl.iJn and numl:)erea Cause, Case and CJ. vl ActJ.on, .·~~:rungs [ t] hJ.s- Application for a writ of habeas corpus,ad testificandum,with [t]his attached~bu separate submitted and filed Memorandum of findings of facts and conclusions of Law, and their attached Order for the covEmience. of the Courts aforementioned ,pur suant to A~ticl~ 11.07~§§ 1 2 & 3(a),(b) & 4(a)(l),(2),(c) of the Texas Code of- Criminal PROSECE'DURE ,and Your Applicant pleads for this said Courts to take jud ··icial notice, pursuant to to Rule 201 (~) , (b) , (c) , (*d) 1 (®e) , (f) of the Texas--Ruleof evl.dence,that exercise of judicial Authority can be held under Article II,§ 1 And Atricle· V, §SA of the Texas Constitution; as well as. Article I,§ 9, Clause' 2 of the United Stai~~ Constitution of America,"that the 396th District Trial Court - and its presiding trial judge did not have legal proper,nor exclusive jurisdiction over the subject-matter,and Partv(s) of iltterest,and thus,can not have hadauthority to render any judgment other than one of dismissal,Garcia V.Dia1,596 S W.2d 524,528(Tex.Cr.Apo.l980):Curry V.Wilson,853 S.w.2d 40,,43 1 n.l,& 45(Tex.Cr.- 7\PP.l993):Jones V.ST"ATE,979 S.W.2d 662,656-57,n.2-59(Tex.cr.App.l998)•And Insupport of [t]his Memorandum brief,Appellant would Respectfully show the said Court (s) the following reasons for Judicial relief:

I.A.

Unlawfully-And-Illegally-Confined and Restrained of Hi~ Liberty Appellant is presently unlawfully and illegally confind and restrained of his Liberty by'Eddi~ D.Bker,acting in his Official 6apacity as ·senior warden,under the Texas Department of·Criminal Justice,under Brad Livingston,exective Director,over all Correctional Inst~tutiortal Divisions,as the Mark Wayne Michael Unit,where Your Appellant is unlawfully held against:his will~pursuant ~o an alleged Convictionof Arson (allegedly) involving a habitation and burglary with intent to commit Arson .But aa no indication that A Texas Penal C()de was referenced in the alleged - indictment ,-next to the· implied charge, the· indictment or information therefrom,.:.. is legally .insufficient with the [un]specific intent to com~it Arson and or burgarly with the intent to comite Arson,as there is no pleading that states that Appellant also,attempted,in the same criminal[alleged] transaction,to unlawfully &~ intenentiorially and knowingly started a fire,which aets amounted to more than - mere prepar~tion that tended but failed to effect the ·~ommission of the offense - intended .•. However, Ray Ball Junior, a State Cout appointed counsel for Appellant,-

intentionally ·cocered and induced,Appelant's consent to plead guilty to those defective~and ~oid riotices in the information fmpli~d ~n the indictments or instruments c~1led._indictments presented to ~he 396th District Court_of or to Tarran County~of the state of .. Texa~.Then,as th~-indictments are presumptiously f~tall~ tjeiecti ve, tne trial court'~ Judge •.._Geor<J._e, Gal_Tagher.- - could no~ have ':lffJ.r_m~tJ. v 1i fotind that there existed One or-~wo enhancement Count(s) not1ce(s} 1n the-- ~j(j'z_) .l.Case.

. .

in~ict~en~are not true to whatever those Counts or actually,paragraphs tohave Pleaded to.But nonetheless the judge proceeded to sentence Applicant to a s_ub.stant ial amount of 45-years [on each paragraphs] i~carce_ra t ion with the Te:<as DEPARTMENT of . Criminal Justice-Correctional Institutional .

Division •••• Hence, -

Edd~e D~Baker is the Custodian(unless succes~or took place) of recb~d~Whom the - Writ of habeas corpus is t6 be served to,as process of service upon the Person who holds [your] Cust6dy[illeg~lly & unlawfully]of the Prisbner-Ap~licant Restr~ ained . of his liberty.e.g.,Padilla '

V.Remsfeld,352 F.3d 695,709(2nd .

cir.2003),cert

Granted, _ _u.s. ,124 s.ct.l353,1358(2004);Rumsfeld v .. Padilla,542 u.S.426,124 s .ct. 2711 (2004) (same); Hamdi v .Rumsfeld. 542 u.s. 507 .124 s- Ct. 2633 ( 2004): Rasul V.-

Bush~542 U.~.466jl24 S.C~.2686(i004);TexasfRules'of CiVi~ Procedure,i06 & 2la;- 2~ Uw£.C.§§ 1821,2254(5)(c)~Thus,~he writ-~f habeas corpus ~ties not. aci upon th~ Prisorier .but. upon the Officer-Cu~todian Who hblds the. prisoner~·Id.

· i ri.A.

STATEMENT OF APPE~LATE JURISDICTION AND ., ... ,,.,,,·; :! . SUBJECT-MATTER- AND P.ARTIES OF INTEREST·~-Uride'f s·uiE 7 ;.;:.~·:'.£' .. :::: ;~:~ • ''' ·:.·:::.::.; ·

This T.exas court· of Criminal Appeals lias ·original ·-c:>r·.:and e'xclusive "jiirisaictiori ·· lver. th'e subject--matter ,ci'ause of Jaction ,·cuss ·.:md '"part'ies -of iilterestand cari' thus determine the quilt/innocence and the sentencing of this former defend~nt,t~rned Petitioner-Applicant on appeal,were such due consideration and determin~tion are entrus~ed exclusively to this said Appellate .Court's justices,as members of the- Texas Judiciary,pursuant to Article V,§ SA of the Texas Constitution:Article ! - § 9,Cla.use 2 of the Unite.d States Constitution of America~So as too implement ..., Article 11.07~§§· 1.2 & 3(·a), (b) & 4(a) (1), (2),& .§·· 5:Art·~4.01(1L (3). (4).4.04&1 ~ & 2 · o£ the Texas Code of Criminal AppeaLs::·. also Ex Parte Young,418 S.W.2d Bi4~ 826(Tex.Cr.App.• l967};Cf.Jones V.State,979 S.W.2d 652,656-657 .n.2-5(Tex.Cr.App.l9 98);Mendian Resourses Inc~v~colley Gin· Co.,430 .S.W.2d 372,supra(Tex.l968).B~ca­ use both transcripts and stai•men~ of facts must be time~y filed to confer the- Jurisdiction on the Appellate Courts.it should Order its Chief Clerk torprepar~­ the[ir]Repgrt~r~Record,transcri~ts and statement of facts under cause number c 396-007543-0943395-B 7/C-396-007542-094335-A & number 0943395D(both charges are in a single Count for alleged offenses,in the v6id indictment,as duplicitous)- as causes for preparation of the Clerk's Records in designation specifying the~ ( s) legal· ma·tters to be included as thee entire Clerk's record on appeaL once transmitted ,'a• written materials,'-made in questions and answer forms too,pursuant to Rule 20.0l(a) & Cg),& 20.2:Rules 34.5(a)(2)-(10) & (12)~(13) & 34.5(b),of the Texas Rules of Appellate Procedure.So that all transcri~ts,'pertinent to said~~ trial Court's Causes shall be included as cetified,~erified.and authenticated materials in ·evidence/items.Including the entir·. Grand jur~ Panel's Transcripts~ of ·the witnesses statements of facts.evidence and anv other materials submitted to the Grand jury,'if any?'.but that the trial Court be Ordered to dis6lose allexclupatory evidence and or information regarding the alleged charges.Which Applicant invokes these designation.pursuant too the Authority of Brady V.Maryland, 373 u.S.83.87.83 s.ct.ll94;1196,10 L.Ed~2d 215(1963)_:Holloway v.state.525 .s.TiJ 2d 165,supra(Tex.Cr.App.l975).and the Texas Code of Professional Responsibility DR- 7-103:Zanghetti v.state,582 s.w~2d~46l(Te~.cr.App.l979).Indigencv "is a matter~ of the Appellant's [DEFENDANT's l fin.iu1cial status· at· the time of appeal. not at - tim~ of trial~Id:Rule 20.1(g){TRAP). .

·~) At Issue Is Applicantis Induced and Irivoluntaryplea and th~ trial Court and-

Acting trial judge had ~0-subject-matter jurisqJction ·±n· the • primary Case of - Cases sub judice ~as the alleged indictments or and iriformation therefrom werenot validlY. returried bv:a CONSTITUTIONAL composed Gran~ Jury Pariel and were mor .·. l_:iJ~elx,,t}1an nO_t.,.forged.\.Qv .the )\gent ( s.). -.of. or fol;' th'e distridt. Attornev.' s Office-

He~ce,th~s• issues ~reserited on appeal involve the validity of the trial Court's judgment to· the: Convictions and their sentences,as yqid ab initio.For want of ju risdictio and-~~ fatally defective indictmen~(s).Fot'.the fact that the instrumen Cs) cailed indiGtment(s) are lackinq most if not all therirlessential and

~~Jr~~ 2.Case•

Constituent elements of the offense sought to be charged by. the Prosecuting-~

·Team.As in the case of Hamilton V.McCotter.l72 F-2d .

171.183-84(5th

.

Cir.l985)(-

cases cited therein) ;Cf.Garcia V.DiaL596 S.W.2d 524,528(Tex.cr.App.l980) .Thus •. ·Applicant has reserved. these none wai vable er;ror of law~ nor can these error of . laW' be forfeited .not· even with Consent. And in fact may be raised at any time - ~or." a~. any stage of any appeal.Moreover, these errors of law have, no statute of - Limitation barriers.Nd procedure penaltys apply to this tyoe of case.Not even - the abus~ ot ~he. Writ apply t6 this kiQd of plain errors.of law.

pre~ented here-

-~ . ' .

-iri-and which are co¢plex and iritertwined with ~any other Consiit~tional errors - 'of-law~and are just a few ~f the myriad of factor~ th• said Courts and judgesmtist cc)nsider as 'a matter of law -~~nd ~~Stice in determininq if .vour Applicant -

I

wlll' b~·I .allowed to represent Qim~~lf • on......

appeal

,.

of his .issl:leS ..

stated 9bove and wi

11 ··.· reserve

·..

his right ·. to amend . [t]his . i;

designation ··- - .

so ..

as to ;7":::not

l. :_..

.have. waivea

,.,_, ___ ~:u

said -

!-_:J...::.-~..;--1:

__ : ::- :._ . ..-··-::._.-. ·-:·."~-~ -:~:·,;- :~-~----

_··.. errors 1\or ~ a!_ly p],q.j,n __ errors of law~ pres_e_rved; i:~ }~e. ~r;ial __ c~.urt :.~· q. ~.~~~t~~~':~o"'-~t~, ..

.. -te.• lO~ !S.\'l.3d 137,142iN.8;;;.9·& n.l:0-12(Tex.App~-Waco 2003);·citing Marin V.State,- ---.. - .. 8·~·l s~v~ -.2d 275,;7~-8b(Tex.Cr.App.k993)(among other cases);Sickle~· v.state,l70S.·

1

w.3d·2~8,30l(~ex.Waco 200S,Order){ Gray,~.J.,dissenting opinion in oriqnal). · Applicant submits his,exhibit.l:-A,and 1-B,as th~ void indictments used to induce or Applicant's Conviction(s) obtained by a coerced quilty plea-wtiich was unlawfu~ . . I I

lly ind~c~6,made involuntarily,arid wi~h oui und~rstantinq of the nature of the al eged offense(s) ,as we.ll as not understa.nding of the consequences of the ple~Ray Hall Jbnior was ~oer~ing A~plic~nt to corifess to.In fact,your Applicant had merely a third grad~ edu~ation back ground.Thus,def~nse counsel committed breach of - his fiduciary duty owed to his client.and refused to conduct any type of meaningful investiqation.Wrose yet,intentionally failed to see that the trial Court's le gal notices were in~ompliance with the correct Pre-Trail hearinq settinGs that - must comly wit~ Article 28.01,§ 1(1),(4),(8),to comport with knowledgeable law'.a. ART.27 •• 03{1) ,& (3) ~27.05(2) :27.06:*27.08(3} & (4) :29.09(1), (3) & (3) :27.11 et seq of the Te_xas ~ode of Criminal Procedure ,_on June 3rd-, 2005. Where and then Appl icant was cocered into !?leading quiltv to the judse ,"as Applicant was- led t o - believe"-he was acce~ting a 2 to 25-Years senten~e,for civil damages done to[hi~ his own house,although regisitered in his common-law Wife's name.Hall insisted ir going in fornt of a juage,supposelv for a civil and· aomestic dispute proceedings.

THE JUDGE,:GEORGE GALLAGBER,acting· in his official capacity,was ready to commence with hearing a·guily plea for arson and alleged burgarly,of inhibation-where App licant lived too.so Applicant did net attempt to burlarize his own home~App~i~an was intoxicated;and inadverden~ly cause a fire in his own:home,but as a result: o his and his wife's disputes for that day • s incident. in 'iuestion. These are pert in ent facts,but ~~y Be-extrinsic.Since Ha11•s ccnstru~tiv~ breah of duty played a major role ~n- n~t obtaing priot· statements f.rom the compelled wife-to testify as_ to who c~used the fire.Had the judge took care o:f·this case that day,(6/3/05),th . ·- ' -

.. \

·ou~ come and- results would have been diffinitely different,and most mitigating i (/( .. ;;[.'.z.~ :. 3. Case • nature ••• But,in a bizzar turn of events,the Prosecutor,Andrea Jacobs,an assul'n ing Assistant District Attorney(whether Criminal.or . ' . Civil unknown) for Tim Cu-

.

rrr,the {fromer} criminal district attorn~y for Tarrant County1in the State of Texas ... T • • • re.que~ted an unsuspected recess.This was inspite that Applicant had be~n i~form~d th~t the j~dge would acce~t his quilty .Plea without hearing any - kind of adversal or incriminatin~ evidence-to damages to ~is and his wife's do~ main or inhabit~ntati6n •• ~Theri,on 6/7/2005~an unexpected he~ririg was held with- Jacobs self serving adversal introduction -.

of uncharged evidence ••• Evidence . .that ·is suppose to be on suppq_~nas.J are to be issued ten-days· before ~ny preliminary · or tri«;il hearirig,1as under Art.24 .• 0l(a) (1), (2) (A), (C)I(E) 1 (b) & (d) ;24.02;24.03- (.a) et·i seq;l4.04(a) (i), {2), {4)(aJ'., {b) & (C) :24.15 et .seq:24.17:24.18{TCCP)~the,... se aref provision~ _that ~ere riot ~ad1b~t should have been im'plemented for ~roce­ dure i;mrposes. In~hich the proce.edings for which [a J witness is being subpoenaed within! T~~ or at 1 leas.t,seven day~ after. -Uie-;dat·e··,t-he-:..subpo·ena··would:-oe maild.id;"

·-. at Ar,t t 24. o4·c a ){4 j (~) ••• Thus I App~icant was. surpr{ce'd ;t·o ~- in ·:·fr'ont :of: a'nother..:. .

indivi.'~u~l~~-;~~~~- pending charge~ of: h~r Own.Ms.Lill~ Luchmnn(who was' in-~· sepa· rate holing .cell1but in the same trial Court's holding cell areas)1and Applica~ nt's estrange Wife(common-law)-Ms.Keri,Lovedav-~ ~Benqhthere was no notiecs 'bv · the trial Court's Clerk~]udge1Prosecut6rs,nor. by Ball. him~elf.to [Me]Applicant ..

t I . I

What'-s even more bizarr,Ball had asked Applica·nt1"who was that witness in· the-· other cell?"-rather than had asked the judge or and Prosecutor(s) ,...

when Ball dis·

. ' '

covered it was .90ing ·.to be a different set of proceedinqs-thari that that was ori· ginally planed~out.·~.which was only three days late~ fro~ the date Applicant wa~ to plead in open-Court on 6/3/2005 ••• The illei;fily obtain~d eVi(~ ·;:nee was to boost and enhance an.inflamatory ·comments and remarks of made up ·tel{oristic threats by Applicant,or actually as falsely stated by·Jacobs1as the Prosecutor ••• Thus~-­ without any prior notice of injecting adverse witnesses1is a legal due process-v ;. ··&:a·tt.'i~·,which requires prior notice of any type of litigation 1 as a right to pre· pare a defense i~ needed before any sort of judgment against an individual-"that he has[had]the opportunity to defend hi~self of any accusation or claim~that he has an opportunity to state his claim,or if the trial Conrt's judge knows anvbo< that does ?-prior to any-adverse evidence being proffered !-and that he has h~ a proper and. lawful judgment by a jury of his peers or by an intelligent,Volunt· ary and khowl~dgeable waiver of obsolute,and C~nst~tutional rights-not to answe By these Applicant's statement of factrial Truth in these unprecedented set of c:

rcumstances,it ia evidently1that Ball.and Jacobs conspired1as trial Court'& Off icials= flawyer~l,in acting out against Applicant's due procPss riqhts,and thus to defraud this ..Applicant, tho tri.~l Court '.s judges ,and the p·1.1blic in general.· But to obtairi· an unlawful conviction and imposen an il.l.eg•~l sentence ( s) ~ee Be11 son v.state,224 S~W-3d 485,489-90(T•::!x.App.--Bous,to_n[lst Dist.~·l~2007) ;Oldham v.st . ate, ..

977 ~··- ,;w.

~- . \

\

2d .'354 1361Crex • App .19981 C, e:aoS.s.~in-v.o1V:eclt\t"e,'

. . ·... . ,,_

\ \

failures to file

.

claim::

.

.

of riqhts violat·ed.,on':a_pp·aal: intentio~al cover-l1P of trail defense lawyer's --

(/ /.: zzz_) ' . . - 4. f;a.s~~ ~·

·: ', ·: ',

fraud engagements and intentional,failure by[Rriri~ld G.Couch~appointed on 6/~­ ,~~ /2007~case#07-05-00250-CRiin the 7th C~.App.Tex~] Appellate Court Appointed-

Counsel to expose sue~ ff~ud,and he himself d~liberately failed to investigateor conduct some.kind of minimal investigatiol) into this case sub judice,actual-

-lv examine the enti~~ record,with ~is own extrinsic facts of evidence oi wouldbe evidence upon appeals investiqation~and then, research of the law and marsha ling of ~rgumetits o~·~his Applicant's behalf.Instead.Appellate Counsel too;abon doned his Cli,nt's colorabie claims on app~ai riqht now before this Texas Court of Criminal Appeal:s,and thus,Couch intentionally failed/to file a .mo·tion for a new trial,at the v~ry le~st-if not to arrest of ~udqment or to vacate the Convi ction <:s) f()r the trial Court Is ~-~d it Is. .judqe ,lacking subject-matter -'--j.urisdict-: ion ov;er the Case i and Person-Ap~licant, Joe Zavala ( aka~·John Zaval). A ~ew trial-

~as.w~rranted~Id~at BeJ1SOnl2·2.4 S~W.at4B9-90;0ldhaml-977 s.w.• at 36l •.• By both inc . ompetent and_ breachers of their :fiduciar:y.. duty- .lawyers-· or .:-:liers: at ·law• As_. the-·· ::::. ::"_-_,__ :_..:.c~.-;1. _. .._.".·""" ··-:r·_,, .~--,-_. '""-: '. -.... ,,_ . ·.-_f.-·-- . . - ·.

[ ir lmalpract;ice. elected not to e_xpose ~these.. said clerical· errors of law ·in the.;;,;

.-- :_ : . ::-.· ,I· - - - -- ---- - ,_.,. -. ·. - . - . -·i"· . ·. . . . ,_ .. -: .· [ir]._ ~har.9ing documents that omi\tted no:f· orilv the precise and specific innumer---

ated reference of the correct statute .-allegedly applied,-"that must be grouped for a definite termology1but no· criminal: District Attornev endorsed 'its Official capacity authori tv-of consent 1 and-. applied non~ of-its alleged witnesses narn~s on the v~td indictment.In.fact~th~_~mission g~'fur~her1by faciallv not s~ owin·g anv alleged grand jurors nanies.WHICH ARE TO.' BE AT least nine grand juro.:..

"rs to have concurred in_ the return of ·a real TRUE BI1J. OF. INDICTMENT ••• Thus·; Andrea ~as PROSECUTORJfor judge Gallagher~failed to prove_the essential and Constituent elements of the[ir]6ffense(S) sought to be charged-of this ~ase.Inwhich - jeopardy had attached while these=plain errors of law were visually discoverabl had either trial or an~ Appellate Couns~ls ~ot turned a blind eve to such false . pretense [on the hiqh seas] under inexcusable injustice. Ex Parte Kirby 1626 s .w. 2d 533~supra(Tex.Ct.App.l982),- "Jurisdiction cann6t be substantially inviked;- it eithe~ attaches or it does riot:ie encomoasse~ the power and authority of the . -

[tr~al] Cou~t to determine all essential questi6~s in the case:it must be invok ed by legal-proper and completely stating an offense against the laws of the st ate of Texas and the test is not to be applied by hindsight:a defect in the Charging instrument relating to jurisdict_ional_. requirements cannot be cured by - subseque~t proceedings in the Court and cannot· be waived:judicial action without jurisdiction is VOID~Id;Garcia V.Dial,596S.W.2d 524,528(Tex.cr.App.l980)- .Turisdiction may be concisely stated to be the right to adjudicate coacern------ inq the subject-matter in a qiven case.Unless-the power or authority of a Court to perform a co_ntemplated act can be·found in the Co~stitution or laws enactedthere under,i~ .is withou jurisdiction and its acts~~ithout validit Id;Cf.Davis - V.State,2~7 S.W.2d 733~736~n.l-3(Tex.Cr.App.200!)(same).

' .'' ••·• • ,'... - I ., .•

CJGround Ori~ .Error of Law: ..

Issue-PRESENTED:.There Is NO-Extant True Bills of Indictment,Judqment Is Void : Por Trlal Court Lacked Subject-matte Jurisdiction: .u 3~. j/,"z_)···. .-. s.case.

·":-

', ·: '•,.

Applfcani • relies dn the facts within the alleged indictment,as argued - above,with statutory and case authority citatipns.As well as Cons~itutional

v~olations of this ~~plicant's Rights.Since the Prosecutor{s) used decepti~e ~ trade Practice acts to illegally and unlawfully obtain an unnecessary convict-

. ' . ' .

i_on.Such as Miles Brissette.Niclt'Pls.and Brian BOUFFARD's abuse of the Grand Jury Panel's independent . powersJ' in the Texas Judiciary system; and;: then used said Andrea Jacobs(wi th TIM· CURRY'S Title a~. a party) to deny all: that is raised in ar aband6ned,appeal,by Hall and Couch( Ronald Gordon Hall},to wit:

"Applicant

.

'st.

--

;te .. his confinement is illegal ( & unlawful)

.' . because the conviction imposed was obtained by use of coerced confession"-and the void indictment or its_fatally defectiv~ information the~~in,speaks for itself.And the secouttd point was )IAL: · was ineftkc.tive. That is a one-hundered percent ·.truth ! - becau.ke Hall's ref;usal to condub!t .any :type-meaningful invest.iqation into the· - A~plifant' s cas~, oir ·~~aims a~~i~s~ · him._for _u~f-o~nded:~-h~r~e_s_,~~n·~ ::no --~r~~~~le ~:~'~ .. ..• : us~;.:..found ·by a grand ·Jury.As Appl1cant. asserted ·abov~·,·tnere :are- extJ:"1ns1c·,facff· tha-t., ·~ould · hav~· -~i tigated his Pfriishment ;--if the jud~~- would -have conaidered:·:all that kas left out.At least .to have had implemented a grand jury,as a matter of Law,pursuant to Art.l9.01 t6 19.10:'19.11,19.13~19.14~19.18,19.19 thur l9~26{a)­

(b),l9.29,19.33.*19~34,19.35,19.39; for verifying procedtires under *19.40.19.4:

. .

{a) -~- (b) :20.01':20.07:20.09:*20 .• 17(a), (b)_,( c) (1) to (6)-all these provisions -. are of the Texas Code of Criminal Procedure,and Art.20.17 is for how the Susp- ·ect or Accused "is questioned before ·a· real live grand jury panel.They,as one'~ Community's peers,will determine if such probable Cuase exist to warrant a cri· minal or Civii trial,and it is then,~heir decisions on what kind of punishment or dama.9es need resolutions.But,theS"e statutory laws are in placed to conformto the Sixth Amendm~nt to the United States Constitution ~f America ••• And this fact is sustained under .the Supremacy Clause of Article VI, Which states:

"That State judges are bound bsy the Uhoit@d S~ates ConstitutiQn notwithst· and1ng contrary state law ••• 1nce t 1s ,,as ueen read to center upon- State Court judges the power of judicial review even over federal laws~.

See Martin V.,Huntre's Lessee;l4 U.S.304L.Ed.97(1816),9( in part: It is the- Case 1 and not the Court,that gives the juirsdiction~Id ••• This contention was re· jected by Mr.Justice Story 1 as he s,poke for the Court ••• Since the Stat~ Courthas decided . the Consti tutioneil ques"t.ion originally. Ibid. e.g·. 1 Lott V .State,l8 ... Te~.Civ.App.627(188S):Rainey V.Stat~,l9 Tex.Civ.App.479(1885)icitedin King V.- Statel473 S.W.2d 43146,*48(Tex.Cr.App.l97l),citinq Hollingsworth v~state,87~e~ Cr.399122l S.W.978-79{1920)1cited in Hamilton,supra,l72 F.2d at 183-84:King Y.· State,cited in. Ex Parte McCain16? S.W.3d 2041210--2ll,fn.2(Tex.Cr.App.2002),- "as in this case at bar.'if the defendant has not ef£ectively waived his absolute rights to a va,lid indictment in ful1 accordance with the [above]Statutory law/felony i~io~mation,then . ..

such quilty plea: is v~id~Id~ .

•• Applicant's exhibit

1-A,and 1~~ 1 are the Prosecuting TEAM's instrument called indictment,which it - visu~l'iy-,legally insufficient and void ••• T-h~ fact that Artcles 19.01 thr 21. 0~ ..- I ' ... ··-, \

are-p~ovisions designed for the s~curity of .the personal tights of the-· 6. Cp.se. · individual arid were aptly placed under the proper heading.Id.at King.supra,473- s.W.2d at 51~52 & fn.**25;Cf.Lacky V.State,574 S.W.2d 97,100,fn.**8(Tex.Cr.App. 1~78),in PART,AS IT IS RELEVANT,in pertinent part,"PRECEDENT" ••. "Has held that in ~he abence of a showing that the d~fendant upon entering a plea of quilty ~ P.ER~ONALLY agreed to punishment.recommended by, the Prosecutor and agreed by the defendant's Attorney,th~ defendant could not be deni~d an appeal~pursuant to - Art.44.02(V.T.c.c ...;P.-Supra,provides that a defendant who ha·s pleaded quilty may only ·appeal with permission of the trial Court if the punishment assessed by - the Court does not exceed the ~uniehment assessed by the Prosecutor and :agreed to by the defendant and his_attorney~Id ... Th~re are facts that should reflectfrom th~ trial Court's record f~~ this ~ase a~ bar,"that applicant di~ not sig any o~fered -· do.cumenta-tion -o~( th:~- Pr~secutor' s, because he did not -~nd~rstand -

:; . . I~ . .. . .

, the n~ttire 6~ the Chaiqes,and th~·actu~l cause ~f action.Inwhich the Pr6secutor ''-':",~;,had co~fered .: a_. 25-vears -sentence ./ko contrary :~too·tR.."G~-Coiicli·;..:.A~ppl~i'caii't-"'"coti'ld ~not·?;:;;-~ ___ .: -~ nave.~ ~nders~_oold the· nature of Jhe Char3es: br.ough.t>-irt erie' vofd: ind tct~ent: aiid, -_ .---the' orl,l y thing· Applicant· ack~owJl'edge-d was· he would be pleading to ·a possible 25-years sentence,because Ball ~hreatened Applicant with a trial on the merits and Applicant would be facing 'life or 99--year '· .. The fact that all 'couch did...; was talk to Ball'ab6ut whatever Applicant might of said,that was it ! hearsaywas Couch's ~nl~ investigation. ·Coucb.i acknowled~es that in his false represen ~at{on in his Preferred brief that is LABLED: "APPEALANT'S OPENING BRIEF"-CAU- ~e No.07-05-002SO-CR-Appealing ca~se ~umber 09433950-0ne cause for two ~onvict­ ions ! . . . Wrose yet,Couch falsely implies that Applicant's Opening brief is wh6- lly FrivQlous •• Inspite that all that Applicant has truthfully presented hereinthis case sub judice. Applicant further points to his induced plea bargin void instruments.One thur ~ix~do not contain Applicant's affixed mark/initials,norhis signature-The only indicator is an-X in the box in page 2(of 11)-right next to "FIRST DEGREg FI!:LONY";and on page 6(of ll),the judqe,George Gallagher's signature is th·~ only agreed to tht~ last words !EXHIBITS 1-C to 1-L incorporated) :

These admonishments w~re given to this ·Accused_, on the. aboven,...noted date And another bizarr inco~n~er,ie -on thia same page 6,a ecribeled name that w~s a person named .Joe Zavalas,but below wher~ the judge had already closea off his- Authority for those stipulations from page_ L to 6; and then We see page Ten c:md- That p~ge ia an expositiOn fOr PROBATION-~PPLICATION ••• There is no CAPTION for a A-waiv~r of a jurv trial,but its mentioned ~ursuant to Art.l:l3(CCP -no Texas iE cited for such initials~'mavbe one must assume ?),but even that assumed code is imprecised ~nd ,unspecific as .Art.l.l3 has three •ubsections for an a~tual term. i.e.,(a);(b) & '(c)--This injustice was held unde~ th~ three trail Court's Officers .-"RaV iia,ll Jr.ttiles Brissette.and Georqe ~_all~9-her-but no defendant is - endoresin!J ~stich waiver of trial. See r j e 10 ! : an·d in pa9e 9- the Judicial Confessiori {i iridicatinq about guiltv of each ~tid ev~rv act as alleged the~ein-buf not 'st.a'ting that the confessor is quiltv-'of each and everv essential and ?.Case.

Constituent elements of the offense or offenses sought to be char9ed bv the Prosecutors: .• The fact that the j~d~• relied on the Defense lawver's hearsay . for his Client, is a ~ross abuse· of pover and Usurpation of authority. Becuase it· was_ the lawver,Hall,who evaluated defendant as a doctor,and assured the jud- _ge that his client was competent

1

or legally competent to have freelyj irie.l..l.~e-, ntlv[a 3rd grade level IQ,1,kriowinqlv and voluntary[while 9 months of false arrest ]waived his tig~t~ •.. However not one page of Eleven st~te ~hat are the legal clai~~ inr~ference what a Texas penal Cod~ violation,if any actually exist - :ed ? .See paqe 9 qf ll,und.er the words:JUDICIAL CONFESSION ..• It serves no purpose whatsbever to have a la~ver .to stand bv as a staw-Man himself ! ! ! -"All while his c1i~nt is in a sea of la·,j,s-overcriminalizing upon the incredib-ly broadyet Jbssure crime~ fabricated~~ Brissette,Nickols and Bouffard •• ~such as the. ·charg~ that does. ~ot e~ist und~~.fan~ chapter:-"~ur:lar_~ wi~h i~ten~ to com~it~ ::::~: :.::. Arsonl.(althouqh 30.02~~s not c~ted ~n-the~><vold '-~nd~ctment,<~ts· ~mpl~ed"""buL·agaln, - - ~r ~- ~. . . - - . . . imprecise/unspecific, as 30.02 h~s 12-subsec-tions: :·tc::'j.dent-i fy a \.part icular'"7def in:_ -i·~-i-onl~iThe-refC>;e, the- Prosecuti~J Team is clia:rging l.~~trumerit, in the d.upl ic.ici ty, does not state,nor allege all ttle essential and Constituent elements of the[ir] implied offens(s) sought to be the· charged claim of claims,and thus,the·~oid in dictment presented to the trial Court and its actin~ judge was not by a real gr an~_ ~ury pa:nel~~nd could not h~ve charge~Applicant[~erson]with the.commissio"~ of an offense(s),e.g.,State V.Martinez,829 S.W.2d 365,366(Tex.App.-Corpus Chri~

·sti 1992,aff'd 879 _s.W.2d 54(Tex.cr~App.l994) ;McElroy v.state,720 S.W.2d 490,- 492(Tex.cr.App.1986)(same) ;Fisher V.State;887 S.W.2d. 49,56(Tex Ct·.App.l994) ;Cook V.State,902 S.W.2d 471,477,& n.B,& ante III.infra(Tex.Cr.App.l995);King,supra ,at 473 s.W.2d at 51-52,& fn.26;" holds that Art.l.l4l(TCCP)[as well as 26·13 (a) (1) to- (4), (b) to '(i); 1.14(a) & (b) :1.13(a) to (c) ;1.15 et seq] ,supra-' imp! ies that this said Authbrity confers the trial Court to have jurisdiction to hear the Cause,'if' there is a valid waiver of a real[Grand jury's] True Bills of Indictment~ .. Then it would merely mean that a valid"complaint's information would act in lieu of or as a:.substitute for an indictment and it 1 s validity is essential to the Court's jurisdictjon~Id.at 473 S.W.2d at Sl-52 & n.S,& fn.26-: Lackey V.State,574 s.W.2d 97,99-100,& '**n.5 (Tex.Cr.App.l978).In this case at bar,the Applicant could not possibly have waived to be indicted by a Grand jury of his p~~rs,because the said Prosecutors scipposely already had an indictment,- and the r.ecord for this case sub judice should reflect that there is abesence - of shbwing that defendant entered a plea of quilty personally agreed to the pur ishment recommended by the prosecutor and agreed by the defendant's Attorney(-

, '

consent).There .is however a waiver of a jury trial between the prosecutor andthe alleded :deferise counsel ,cited in page 10 of the void plea: bargin.But not -

't ·., . !. -~

any consenti'al agreement by the defendant[Applicant].Ba11 fa1sified v~gu..,_e,and-_ ambiguou~ language within that lengthy t~n~page-pretyped-prepared wr~tten plei Admor:t,i,shment .• That actually does not stat.~, ~hat. is waived as a right ? •• :It was_ an ab.u.se of judicial power to assume it had: subject-matter, and then accepted -

"(0?/;z;i.)· a.case. •" .· ~pplicantis (induced] plea of quilty,without making sure Applicant affirmative!~ waived a trial,while already [fraudulemtly]indicted,but that it be made-to-look. as_ if.waiving indictment to indue~ such void contractual agreement by Prosecutors and defense Counsel,as well as the judge,applying his own incorrect legal - au-th9ri ty ·or misapplying the iaw inchief, as herein this case at bar, 11 inwhich no· Court officer required that defendant or his Wife{estrange) establish(·the Truth ,• . . .

of the allegati6ns ag~inst Applicant,o~ as his Wife,~etting'party,as a conditior for Applicant's .consent ... Sinc~ tri~ls are primary about the Truth,and judgesendorsed ·«onsentdecrees[none-in-this case is revealed] ~re primarily ~bout pragmatism ~

:

•. ~~Rethinking Presumed Kn~wledge ; ;

oi :

the law~Neith~r~

.

of th~ three benchtrial

Offieers acknowledged :the Char•Jed indictment or information· were :invalid-

- . . even though~_'no criminal st~-tute(~) was cited in pleadings writt~-n by the prosect .... tor -anp jUd~e I for SUf.:h harsh. bac~eQ Criminal P~~riali ty Of Which presum~bly. inClU· ~to;~:-". d ed .;t t ti ~ -two i-· 4 S -"·years -.. ,_ -una e r- t h e,(pt e stim e'd ·:-it'r'c ane· pe'rial' "'Coae·s it~o1~~lt'fYP ife·<:in··c eva'S' ·2rre,· .

•1. . ' . .

~; .• ...::- er .. adv,~ce:a· by--toe judge _ , n.or by ~ri t ten· instruments of~ wai v·ing :-:~is :ob~olute :~rig--::··

'hts tdj: a . Valid C-Omplaint I a:ri admi~::libn that this. [ falsely]aCCUf:leQ has· been -~verb-

. li . -1 . . ... -- ..

ally e~plained about his rights to an ac~aual informed advisement of his legal -

. .

duty(s) and ~oral obligations ,as for ~he nature of the charge(a person's culpa-

. .

bility ),~nd tha~ the instrument{pl~a bargin s~ipluti?ns)SHOULD INCLUbE it wasfiled amoung the papers of the c~use(which·cause#is not cited within the-plea-· agreement between M.Brissette,et al~and H~ll~s goal •.. Hall's constructive breacl ' . , . . '

was the fatal'blow t~ Applicant's legal innocence,~nd factual innocence to thevoid cha~ge~,as Hall kne~ the presumption of law is useful 11 If one is trained -

the law,but intentionally failedlto provide legal advice to his client,this App· licant,so that that useful legal advse incentive would not benefit Applicant,a:

a Citizen to become info~m -d of his rightful legal duties,and thus, a complet« el i.mination of that-pre:;umption of the law-is· so· that goal of Hall:'s and ADAs - would become the[ir] pecverse incentive to have Applicant remain in an ignoranc• that w_ould not imrnun,ize Applicant from mens_ rea link in Culpability establishment ( ignorantia legis neminem excusat ).,,Hence,Applicant was,and is still not· schooled-and-trained in the law,as a presumed lawyer would be-to know every cri· minal law,as morality of lav •. ~That requires laws to be among other things pub!· ished , understandable and not subject no~ const~nt charges ... Otherwise Applica:n (as. every one should)ccould have been talented as a lawyer,but that result hard ly would have been feasible and desirable by the Prosecutors.Jones V.Barnes,463 u~s.753,756,103 s.ct.3308,3316-17(1983),id.at 463.,su.s.756,& 3314;citing Farett v.cal~foinia,422 u.s.B06,834,848,95 s.ct.2525,2540,2547,45 L.Ea.2d 562(1983)~~ 11 INDICATIVE that the Attorney's usurpation of _certian fundamental decisions can •Jiolat;e the Constitution 11 Id .•• Thus,whether -~ civil complaint was warranted or overcriminal ization - has deepen that. danger of .a dynamic in 1.1hich Appl ica~t '.Ja charq~d \dth alleged crimes of a lo.t. more_ punishment, while thos'~ who wer:.~, doin : the charging knew they had little skin in the outcome which to .loss. Il::)id.

C;}j;.:J.Z) 9.Case.

D) The· trial J. udg· e found it unnecessa_ry t_o rule on the v"'ll' ... d .1· t y o f th e ..~.n·d :1:-

T ·

ctment or its information or whatever information for examining it's own juris _diction on it's own necessity.~osely V.Cozby~813 F.2d_659,660{5th~Cir.l987); -

st·ate '! . .Moff,l54 S. W. 3d 599,601, ri .1-2 {Tex .. Cr. App. 2004). !.'.An True Bills of Indictment or valid co~r.plaint in: -o criminal cas~.! is . the main means by. which the - Accused defenda~t starids-trial and the only means by which a COURT ob~ains sub ject-.mat ter jurisd ict·ion, and i.s the j ur isdict ional instrument upon which the -· Accus.ed ·can be forced to a trial on th1~ merits.State V.Chatman,671 F.2d 531 ,53€ {KAN. 1983); Coleman V.State~ 918 s:. W. 2d 381 39,43 (Tex. Cri. App .1996) ~Therefore, the ques~ion is not~bout

~ . ..

evi~ence ~ut about ~ubject-matter . .

jurisdiction!.'Id···

The ~~mplaint an~ illeg~l apd ~rilawful ple~ bargin imposed upon Applicant were .. -~- . . .;~. .. ··· .....· .··· -: ... ;.1. . . . . _.. .

the f,oundat:ion ~of an. ~rbi tra:ri 1tor or •. an intruder and. :i. ts acts that fell clear ly. ,,C>U!tsidE' th•e j;itidge IS SJlbjeCt·-~·c.tter ·. jUr tsdicti ~11 ~-'!'hUS t Si;lCe theSe . :Ja ici Charg· ·-o. =-in.g. i!nsrumen.ts_ are .. inval :~d ,_ ti·'i·er)~ i..~ a la_ck::o:f._ subj·ect-m.:tt t-ar jul~isd iction •Once:

I . ~ - . . • . .

·::;,"o'.:·;..~ ~h~.-- [jya],~_q·] .__in9ictment is prese~nted-jurisdictipri is<~ex<.:lusi-ve "in•-the ·recieving··. :_ ..-: ·:- Co~rtJ:unless legally tr.ansferr~q to· anoth,;:r Court having concur~ent j~risdict:-·- · ___ ...._f~)n.Tei.tocle Crim.Broc~--A:nn.Art-~32.01 ·& or Art.4.16., ."Tne only me~hanism for -

transferring jurisdictlon[Ait.4.0i{l) to (11):4.0214.05,4.07] o~~r the case.In where the sec6und ~ccepts the c~se b~ issuing a foimal Order of receiving~§ 24 I I 1 I

003 {Tex. Gov' t Cod'~). Hence-~ the 396th._District Court, Judge, George Gallagher pur,~;:- orted to receive jurisdiction from an unkonwn selected forum or tribunal,asa Texas Tarrant District Couri,and ~ether there exist an Order ·of t~ansfer,it is not ~eflecting in the trial Coutt's record~so a~ if to determine jurisdict~ itln of that unknown selected f6rum's authority,if ever veste~ ?-on some particular date of entry,anJ when was an order of transfer signed ? by any acting - competent judge for or to the 396th District Couert ••• Regardless,Judge Gallagher an~ his Court never acquired jurisdi~tion over cause#0943395D[or as #C-39€ 007543-0943395;c~396-007542-0943395-both citation entered as one case under - one judgment

.· .-

under#0943395D) from whatever transfer Court or from M.Brissette'

hands ?-these said Courts/judges must prove on the record,all jurisdiction~~ fa~ts related to the jurisdiction asserted~ .• Applicant is assisted by a sui Jl

ris inmate paralegal,and makes an emphasis that once,as herein,jurisdiction if challengr:!d, jurisdiction 1 cannot be assumed 1 it must be proven to exist· In fact'· juiisdi~~ion,once challenged.cannot be ~ssume~Jit must be decided.Mainly,the .~ rule of law re:;tuires proof of jurisdiction to appear on the recor·d of the adm· instrative acencv and all administcative proce~dinqs.There is no disrection t• · 1gn·ore

k ""f. · · d' t'ofl Joyce v.u.s.,474.2d 215;Lantana v.Bopper,l05 F.2n· 1:ac o . .JUr~s 1c 1 : ~ ·.

l~H~;Chicago v.Nev York,37 F.Supp.l50:Stuck V.Medical Examiners,94 Ca.2d 751,;,_ . .. ~ ) ·. . ·. . ., ..

211 P2~ ja9~M~ine V.Thiboutot~lOO S.Ct.250;9rrier~~Scholalal30 f.3d 1307TG8(1 th Cir~l994)-:Rev York Life Ins.V.Brovn,84 F.3d 1371142-43(5th Cir.l996)(same) Rui~ v.Quarterman, 504 F. 3d 5231527 ( 5:th. cir. 2007) (same). "Wh"~re ther·e is a Rule providing for relief f:::-om a void Judgmt:!J·it: and. is applicable, relief· is not a lO.Case.

discrectionary matter,but is mandatory~Id.(citing Rule 60(b)(4)(FRCP)-Rule _ allowing .. a.district . Court to relief a .Party of 1"nter~st - •••·. fr·om af'1na 1 JU · d gmen

-b~cause the judgment is void,and that is why no ~ppellate Court ot trial Court m~st not h~itate to vacate a void judg~ent against [Applicant] him ,oth~rwise ·it would be a plain ~rror:of law to' refuse to v~cate and set-a~ide the judgmen under rule~ Article 27.08(4)(TCCP).Dennis v.state,647 s.W.2d 2j5,supra(Tex.cr. App.l983),"ln Oder-to·invoke jurisdiction of the trial.Court it is madatory th· at the instru~·:nt st.':tte the necessary ess,~n t ial and Const i tuerit- ~ elem•ent.s ~f the offense -sought .to b·= Gharged~Id. ~.In makin•3 a· determ.i.·nation '•'hethe'r the charg:- iri~ instrum~nt states [ as oppoi~d to ~lleged ~ .. .

!] an offense,it must be r~ad as ' . .

a wholt~ an.qtherwise an__. . indictme/lt or infor;:nation_ that does"..r1ot allege/stat~-. all .ot; tJte ~lement's o-f a f·~lony (bharg-:d does not 'invoke_ jurisdict.ton of. a district ~ ..

Court. Ex. Parte Eldridge,-57 21J s. w. 2d 7161 supr 3. (Tex. Cr. App .1978) '. Th~s a C~urt ! . .• . . . . kl . .

I

,. may.::'~h~vf.t' aut:hority ·under ·Art .1.1l41, et, .al: to •..hea-r; ;a,o-::cas.e•, bu,.t:;.:onl\t·'ci:f: ~e.h:€it;:e--;:be'~l~ t:~ '! -· .· . ·-i:=. . . . . .

vali'd .;\1ai ver ,·and· · pr·~cedent hels ~t:-troughly_~exptessed ·:tha t;.:~'~LT-:-.is ;:weTL to.~beai.: in : . m.i. rid .. ~hat a· fel.ony inf~rma ti-on ~~ts · ir1· 1 ieu of or' a.s a subs t'itute for-~an i~dict ment ~ns ~Its validity 'is ther~£ore essential to the Court's jurisdictiort~If­ as in this case sub judide,the Acc~sed-Appli~ant has not effec~ively wai~ed his right to an indictment in full accordance with t.he r.Jta t ut.:e [P.rt .19. 01 to 19.10;.,.

I I I . ,I

* 19 • 4 0 ; 2 0 . 19 ; 2 0 . 2 0 ; 2 0 . 21 ; 2 0 • 2 2 ; 21. 01 ; 21. 0 2-.( 1 ) to ( 9 ) ; 2 1.. 0 3 ; 21 • 0 4 { TCCP) ] the f e 1-- ony i~formation i~ void.King,supra,47B~S.W.2d at ~1-52,& n.**26;Lackey,supra,-. S74 s.w.,2d···at 99-·100~& n.**n .. 4;Ex Parte McCain,67 S.W\!3d 204,2l0-210ifn.2(Tex. Cr.2002)(s~me )~id.at?214 & fn.7,15j "~he .trail Court[Judge acting]~erformed an Action clearly out-side of any legal o~ judicial authority,which acts are beyond tht.~ Scope of Law and 'that • ULTRA VIRES AC~ canno~ be recognize(~ as a ·valid judicial act .• The Law will not Validate its existance or performance .•• It is- in Hoary Terms a void act~'Ia .•.• "In order t·::> have char·:~ed-the commission of anoffense -the indictment not only had to be by a G~and jury,but have'·Stated enough so tha~ the offense alleged-could ~ave been ~egally identified ..• Thia wo~l ~ave vested the t~ial Court with subject-matter jurisdiction.However,not onlydid the charging instcument lacked most,if not all the essential and Constit~ uent elements of the offense(s} implied,but Articles 1.14(b) & 27.08 do not -

permit waiver of subject-matter jurisdiction~e,g.,Cook V.State,902 S.W.2do~at - .·483 L1 fra. & 480,ante v.infra: Opion b'y Mansfied,J;; I join the maj()rity;I atn tr:

oubled,h~wver~by the failur.:gf trial[defense]counsel to object to the erior l1 the tharging iristrumertt prior to tria1,given that the error was obvious •• ;Had· [Bali~objected] this been done,a substantial-amount .of time and resour~es(both State. and Ap~:H·)llant • s) w.:.uld have been sav~d·_·: and justice would have been bette ser-~ed!.'Id ••. Thus,Applicant has shown egr·~giour:: harm by Trial Counsel, Hall's bt;

eac.tt o f . his fiduciary d~ty and ob~igations[leg~l],and ·· . . . is enti~led to have . . thetria

LCourt and it's acting Judg_e 1 to·. reverse and vacate it's convictioh(s) anc senteQce(s)because the plea bargi~ consenf[~mplied]was fraudulently i~duced -

·~ ~J:z') 1l.~ase.-

and the ~rial Court,with it's acting trial judge,l~cked subject-matter jurisdiction to have accepted such void indictment or inf6rmation therefrom;as well as. the judge u~ed unconstitutional guidelines,that depriv~d Applicant· of his- Cons.ti tutional guaranteed rights to .a jury trial .. Therefore, Applicant has shown · hQw _his United S'tatii:H3 Constitutional ·rights were Violated with· the aid of Court appointed coutisel,M~~Ball,as Ball stold by while Applicant was being illegally and ~nlawfully sentence to tw? lengthy termed sentences of 45-years, in one. signed judgment based upon information that had not been prov~n beyound a reasonable doubth that ',.;~;ry essential ~nd Constituent elemerit~ of· l.:.he offense(s) ·soug· 'llh to be cha,rged were proven.As ·~n State V.Booker.,l25 s.ct. 738,supra(~005). · -However, t~e trial~ ...l=!ourt' s judge ~Jroneously. failed too_.~c·areful.ly· advise: this App li~ant :;of .'the nature of the real/?harge~ alleged against. him and of his -obsolute- · .. •. ri-ghts~ including his ri-gh't of a ~eal Grand jury Panei 's·--t·ru~:- Bill's of ~indictment :.'~Since ~- !.

Valid·' ~ai'ver~:is- ~: condi t~On.

..-;

to .the tria'l i.d~tf:t'tF§rri~g'h t:i - . .

t'o'·f'acq·tii'~e t_:{urfs•...::

· ..

·.·,,,diction, l .

it . is·- a ':;ma.t.ter . that · cannO:t be:·"waived.· ~-~·whi'le·-

1" , • • tri6s't: rigtlfs a'na;·:_pioted.ural' ·;

• , r .

. . matte~s may be waived,jurisdi~t~oriai I'riatt~rs m~y not b~~--The absenc~-~f a val;-

id wai'v·er of triali•by indictmentlby the ···Applicant as required by aforementionec . ' .

provisions,mandates reversal of this cause number C-396-007543-0943395-[A & B] . , or and number 09,433950-for the Wrli tt~n Plea Admonishm~nts [alleged], and the, tria Court's judgment under nu~ber OS43395D~~as· it was not,on the facts,and law,bef-" ore the trial Court's jurisdiction and could not have been a free-will'ing,volun ~ari plea bargin,and ~hus,~nce grant~n~ ieview upon the said void indictm~n~(s) or information therefrom,. the said Court ( s) and their judges would be able to ad dress and correct such plain ~rrors of law committed by the trial Court,and jud ge George Gallagher,and to settal Texas juisprudence concerning this said pleabargin case at bar.Hence,Applicant respectfully PRAYS that this Texas Court of- Criminal Appeals grant to issue his Writ of habeas corpus,and upon its de novoreview of the trial Court's judgment to the conviction and sentence(s),reverse the trial Court's/judge's judgmentand remand to the trial Court with instructions to acquit,or inthe alternative,reverse and remand this cause for resentening or modify the. trial Court's judgment and affirm it as modified for time ser ved or a 2-to-10-years sentence on punishment,as in the interest of justice.Art 43.2(b)(TRCP).State V.Gonzales,855 S.W.2d 692,~u~ 1 a(Tex.Cr.App.l993);Ex Parte- Young,418.S.W.2d 824,826(Tex.Cr.App.l967).

III. A.

Ground Two Error of Law: Ray Ball Junior,AS Defense COUNSEL committed Constructive Breach of Fiduciary- -~ Duty,and legal Obligation/Legal Malpractice: ·. Issue Presented:- Ray Ball Jr, intentionally breached his fiduciary duty, et'c;

And Ronald G ~Couch., COVER-UP Ball's Constructive Breach of Duty; Malpract i v.e too: Applicant asserts that these/his issue of issues presented herein in Ground onE Erroe of law is JUSt One of Two of his[the] myriad of fac~brs t~a~ a~e complex· and intertwined with such unsaf~ty procedure for Civil libertie_s, under Texas S1 ate Courts,with intrudin3 j~dges or usurpation of auth6rity,as it appoints 12.Case.

incompetent and irresponsinsible,and deceptive Court appointed CounselA,as - Ray Ball,Jr.and his acquaint~nce~Ronald G.Couch,who as an appeal ~ppointed lawye ~,lied ~nd breache~ his duty to caise colorable cl~ims of Constitutional err· ors of l~w,as illq~trat~d above i~ Ground One error of la~.Thustthese ~aid Coti· its and their judges are respec£fully to consider ~aid myriad of factors inter· twined,in determining, if Applic~nt will be entitl~d to re-present himselt upon thi~ i~sue of {ssu~s ~resented to be the[i~] ~ecisive an~ ~pe~ative facts upon which are' the· .issues oif Appicant' s · Consti tution;il claimes raised hereto ~Rath­ er than· than·: re1 terate the . . .

abov~

. I'

point( s) as ground :;ne error of la•i, the :e~ror . . . .

one's point(s) raised are th~ ~~me issu~s of fact,law,arguments,legar arg~m~nt:

· and f~ctual· recitations made in~!t'lnis grourid Two error of· lairr,as poj,nts\ ..-made in-

·. . . . r . ~ . ·. . . .

error' ori·~ for th~ purp()se of po~nt 'rlvo_, a·nd· wi 11 ~th-erefore; be argued ·toget~her,-

·· aHHig-~. i: wttti all the supporting;

.. - . . . . . . . -. . ' ·. . ·.

d~ci1m-e~ts -! i : .

pertinent-' to -this ·:c:aus·e ··sub''-:-, l.ldice: . . . ·. . .. . . . . . ..J.

inc~---

.

- "ludi-ng 'Appl i'ca.iit ''s ..suppor.fing • e~h ibi ts·l·potnts '"and -=authpiri'tfes-:-:coupled'-"ii•H:eto ~~~. • ·--~---- ex-p'r~.~sly: a~d; •ih~llyr in·c·oporate~ by reference _into'.::gr~urid- one/errt>r,c:c5nEh and'cb~--

?- . .· .. . . \. .. . . ·. . .. . . . .. · .

to the 11.07, ATC...;form, as the wrf t of he:\beas corpus, as if s~!t out ·entirely here· in,an~ on the basis of the trail Court's existing record for this ca~e . on app· eal,and on the fu~ther basis of testimony/extrinsi~ or and intrinsic evidence · anticipated tO be adduced on. a de nOVO/evidentiary, ho:laring 1 i >:: One needed in. CO· nned:ion with this Applicant ,·s memorancfum .of :Eindings of facts and. conclusions·· pf law,and thus,on=e the said Cour~'(s) jud~e (s) .hears all the evidenc~ andsees the facts,w~uld sua sponte move/pursuant to Articie 27.08(4)(TCCP)~ickles V.State,l70 ·s.W.3d 298,30l(Tex.App.-Waco 2005,order)(Gray,C.J,dissenting);Thom pson v.State~697 S.W.2d 413,supra(Tex.Cr:~pp.l987);Jones V.State,98 S.W.3d 700 702-703(Tex.Cr-App.2003),and Boykin V.Alabama ,395 U.S./.38,242-43,89 S.Ct.l709 1711-12,23 L.Ed.2d 274(1969),as Boykin applies to this case sub judice,in that pervasive breach of defense counsels is ~ constructive breach of their fidciar legal duty(S) IS A - denial of counsel all together,and thus,after the plea ha been entered in reliance upon cojrcion, and fraqdulent inducement,the plea - bargin must not be honored,for the fact that "Ignorance,incomprehension,coerc~ ion,terror,inducements,subtie or blatant threats ~an mask unconstitutionality, thus,the question of an effective waiver of su~h federal Constitutional rights· is goVetned by fHderal standards.Therefore,the record can not possibly show th· at Appiic~nt's legal due process of law was. ~p~lied,as satification i~ ~ : ple~ bargin induced,rather than have knowingly,intelligently,and voluntarily made~!< See also Roberson V.State,2001 Tex.App.Lexis 5076(Beaumont 200l)(not designate< for ~ublicat~ori but cited only for thi~ po~nt One:ertor of.lawt;

- •provi~~d that the court shall 1nqu1re as to the ex1stance of ~ny plea - · ·' :agre,)ments •.. and.in the event that-such an agr·~ement e:x1st,tht~ b :?.r~ 1 ng · · · "11 f o 11·ow or re]e c~~ ·such coutt~hall inform the defendant ~hether•1t•w1. .ag~eement i.n open Court and before a; ·fililiffincg(;Oiflc;tlhe plea Should the -

. ,· · Court reject any such agreeh1ent. the. ·defen~ant shall be perm:i tted to - : · ~I~bdia~ his plea of quilty~Id;Tex.Cod~ Of Crim.Proc.Art.26.13(a)(2)(Vern.sup~ 13. case.:

2002)(e~pha~is added) ..•. Because Art.26.13(a)(20 u~es the word "Shall",its ... terms are ~andatory.~nd must be ~onstrued accocdingly.Tex.Gov't Code,§ 311.016- (2)(Vernon 1998).See In re S.L.P~,l23 S.W.3d 685(Tex;A~p.-Fort Worfh 2003),no -· Pe~;);Lafler V-C~oper,566 u.s. ,(2012),no~l0-209: If defendant has been off· .· ere_d a pl·ea bargin, he has the right to effective assistance·· of Counsel· in consi< ering to acc9pt it,•tf• ~hat right is denied[as illustrated in point one],prej- .udice can be shown in loss-of the plea-opportunity that led to a trail,resultin! in a more· serve sentence; and ·defendant do have a Sixth Amendment right under - th~ United States Constitution,tq effective-assistan~~ of Counsel,a ~onstitutio· . nal GUARANTEE or- it is breached~as such rights do extend to plea bargining pro• • cessdra.at a~te,at 9;u.s.v:il~riae~s.on,72 F •.3d463,465(5th Clr.l~9S>"Csaine);s~e also T~~ Walistreet Journal,9/27:..~~/2014,-A-4-"U.'S.Moves .To Curb USE of Waivers·~· i~ Gui:lty -~ f~as: I~:._. Appl ic~nt' sl}!o~d pie a bag in stipuia tions also cbntained. br-

•·· -l tt~;::!::t:":::::!::::··-1~a~r ~:::r::~:~~~:~!~~!~~:·:~~i~~:!~~~t!::~~-~;7t:~!!:! -.~ ~··:,=:

.

~~-,·G.Cou~h-

. ~

a-i1~-"'th~"i~--~-thei~--,~~~V'~sire . . . "I breach of" duties. not to "object to the Prosec- .

uto~•1s) void i~dictment(s~,BREACH of piea agreement an 6/3/200~,and failure tc object to the trial Cou~t's and it'~ judge's judgment and sentence as illegal.- Ex.'Parte Beck.;922 S.W.2d 1Bl-82.(Tex.Cr.App.l996) ;Ex Parte Mclver,586. S.W.2d 851 . I I ' . I '

854(Tex.cr.App.l979)(same)~"it is a void sentence when the puriishment. i~ unaut-· hor"i..zed;such punishment renders the judgment void because it is illegal ,i.e.,- ·unathorized'·by law:Id,. .•.. Arid the Supr~me law of fhe Land has clarified this sa me isst1e in that a plea of quilty is only Constitutionally valid, to the extent (Tr,Ct.RR. l,pp.l0-19,based on the void indic~rnent)tah it is violuntary,an~ inte lldgent ,and knowing-what is the actual.·: criminal offense he is faced with ?-th Nature and Cause of the Claim against him.T:1e notice received,and if he recg~i­

zes the requirement oe legal due process of law ?.e.g.,Bousely v.o.s.,523 u.s.- 614,618,118 s.ct.l604,n.l-2,& 4-5(1998),id.at 523 u.s.619,11B s.ct.at l609;hold ing t~at the_Trial Caart's judge must expl~in the charge to the defendant,andm ~st consider both the complxity of the ~harge and the sophistica~~dn of the de fendant ? such as assure[e] he has at least a Junior high-school education[whic he does not even h~ve a 3rd degard education];check for mental impairments when admitting quilt;if any.;little familiarity with the American. legal sy~tern and ,mo ost

'

cr~..lcially important, 'did he [Accused j reci•:!V~ a~. explanation of complicated -

. ' . . ' . .l . . .

ju~isdiction issue ?' aa well as d~fendant reading and ~iscussing,with his Atto rney the previous[6/3/2005] plea agreement containg facts relevant to only one- Count ag·ainst h~m?- or if the judge explained·. to him;and review the incident re . . .

port with his participation in the trial ptior-to-pleading quilty,-'while receivinq 'a .copy o_f the alleged indictment and tevealing the elements of bbe offens ~harged to which he supposely pleade~ ~uilty to ? and as n~ne of the above had taken place_~the tri;\l Court's judge_ qlsc, er:r~neously failed to: describe the re·g .isite of the mena rea element·of the.charge :which ~•hould have,'bc.t didn't:,._-

(~T.z.) 14.Case.

include knowlledge that the over-all length of the defendant's alleged offense was two offenses in one Count indictment which woul~ not have been-in~fact-a cr- ~me(S) ~WITHOUT Defendant affirmatively havi1g informed cl~rific&tion o£ ~he law th~t cquld have revealed that the ~onduct to which the defendant plead guilty -

;: . . . ' ' . . '·

~a~ fn:\fact not.a ciim~ but a ci~il violation against his own house hold.~hus,­ after ~o much abuse of authority ,:this defendant [Applicant] wa,s affirmatively misinform -by·,, the trial Court Is judge about tht~ elements of the offenses Applicant - pl~aded quilt~ to,and thus,could not have possibly have been a voluntary and in~

teil ig~nt plea~ c;t~ required by the; Canst i t.ut ion of the United States .Bori~ley, .supra , 523'1\u. s. 619 is. Ct. at 1609; Cf.oLis- V .suarez, 155 F. 3d 521, 524-25 (5th Cir~ 1 ·;}96) ( sc:

~-

_m~ .r:ei~erati~n . .

.:: ;: ~

ab_o.:..re)

. .. ~

:Ya1enci~ V'pS.,92.3

- .:

F~2d 917,92l-:-22(lst

. .

Clr.l99l)'(same)

.. .

;Ne;

arez-Diaz v.o.s.,870 P.2d 417,422':(7th Cir.l989) (same) ;O~S.V.Odedo,l54 'r".3d 937,- · 940C9:~:~ ·~ir.~~98)(sarrie};*o.s.v.G~got,I47 F.3d 1193ill98(10th Ci-r.l998)(same) ;u.~ ;-._,_ , i~s~~~i,111 F~3a >~ 7i~,47E) 01 th ciJ.l997 >(~arn-e} ;·u:'s~v 2neW'~ltt9i· CBLL3d tao·9 ~f2'J72 (D~;c­ . .:·:Cir~.l9.~6)(same) ,.:1nd. Q:. . ~)~v._Reyria,ll~o F:;'jd l04,l06(5th :~fr.l-997)(~c:uner•E1f~Pilrte :.:,_,-_ - Th~;..a~~545 s.w.2d- 469,470('f>ex.cr\'lAppol977) ;Talbott v.state,93 s.w.3d S21,S23-i4 (Tex~A~p~H~uston [14t~ Dist.] 200~.no pet.).B~cau$e Applicant could n6t have kno1 ' I ' I

the ju:dgeould alter the plea bargin ~henafter certain pages o-r: the plea bargin-

1 were induced with conient of his all~ged waivers,"as Applican~ was allege~ly ch;

• I •

r•3ed with a multiple Coun·t_ indictment on 11/3/200·· arid on 6/3/200 , he 'was cocer·- ced into consenting to be sentenced by the judge,but that was charged witboqtp ~i6r notice that th~· open plea deal w~s-~hanged to 6/6/20~5 •.•. All these ill~­ gal irregularities were done with n6· pretrial moti~ns filed and no hearin~s weri held prior to the plea on 6/6/2005.At least. accordin.'3 to Ball and ·couch. See a-- Appellant's Opening Brief,Cause#07~05-00250-CRpage iv~-~Then Couch speaks a con· fused statement by implying,'that there was no agreement as to punishment and- Appellant plead open-as to punishment~ This is illogical t ·-· .. _ Couch implies "The Written Plea Admonishment :'appear' -to be in order. and signed by the Appellant "~(CRl,pp 10-19)-But page 6 and 9 are the only pages that seem affixed witl name of Joe(rather John)-Zavala,and only after the judge signed above his own - name and above Applic'"lnt.or JOE %AVALA ... For the record,"there is no statementthat Ball adivse Applicant of any of the above illstrations.Not even if counse. Ball conducted some kind of pr~or investigation .or and in preparati~n of resear• for Applicant's sentence:as a PSI investigation and then a recommendation withi sentencing guidelines in-ran.9e 2 to 10-years or what would the Court judge imposed after applying the correct guidelines in an advi3ory fashion and oniy afte heightened scru~iny of the[ir] appli~ability •• The bre~ch of duty by Couch~ invol· ves not obtaing ~elief by raising a $pecific Bookei7Type argument,of wh~ch depe· nd~d or depend~upon a cornp~ehensio~ and technical r~ading of applicablejl~w.At least i.f _not am issue of vo;;td judgment, then coming to be in the fbrefornt of ar guing against sentencing errors •.• Inwhich Ball abandoned too.But ·its evidently .

/~~~a};_)e.··i ther Ball'or Couch tealizees that the trial process, fC'om ·indictment to- (::'{o .. o:Jre-~ 15. C<3.se. · posf-~pnvi~ti6n relief,must be conduct~d via an approach that protetts the - Const.itutional rights of their Clinent(s) or all Cit~zens in general.Thus,Among the other issues that could have been rais~d on appeal] 'had Couch acted professional ~y,are arguments th~t there was no tredible evidence to support the sent-

·i . . . . ···. . ·.. . . . ·.

-encingl enhancements that were ilfegally applied.Which iri its~lf is Unconstitut~

ional.But the bigger picture i~ the omission ot elements of a crime or offense was not correct ~t th~·plea bargin hearing,as the judge relied upon the defici~ ent state~ents

'I . ,

in t~e faetuaL or' none-factual .

re~ume.Mr.C~uch did not want to rai.se .t:t1e · issU£ of Ball.8 s breach( of fiduciary duty -c-i arithmetic errrors of law

1

'

involv~d against the trial Couri!judge .. Since ie was t~e judge who erroneously-

);,: : ; . ..~.r . . . .

_failecE_to info:r:m. Applicant of uu~ _actual na~pre of the ch.3.rge(s) to which he.

\V~s- ~6,-~rced fa#.led ensure that there •wat~l an· adequate t.p pleaq quil ty to J~d to ·:· .: . : -. (t+ . .· -. ·- - ·- -.- .. . . . .. -· . . .· . . - : .' 'lt ~fac~p~)l·-a.nd l•?gal basis _for·· his jplea, and- thus, that· resulting aui-1 ty-'plea' was [ t ·

". herefcH:e involunary. See_ u.s. v.J~hnson;·381<P-.:3d =-so-6)50'8+Stfi'FG~ir5'.-~roo~4-)7(2~T~H:-fati5n -· •• - . . . -.~ ~--·-· ~ -~..::_:_ _:.;:;r·.!· . . . . -.. ....-. :.. . .-. '*. ._·. -:-.·- '·.··.··~-:·: .• ·. • ·. ''' - .. ~ ...;. • ,. • • .. .•·. ' ··- ·-. • ~· _ ~~mi tt~d) ; MarshaJ..1 v .. Lonber_ger,'4~9 u. s:-422; 431 ( 1983) (quofing :Beriderson:·~_v:-Mo~~arii-

-··.--. ~ .. __ ; --~~·· _: ~·! ' .. ·. .; - . . fi!' . . .. ' . . - -· -. . . . --~- . . . ..

426 ~~S.637,645,n.l3(1976)~Appi~bant in making these arguments,ii sh6~ld-be e~t • ·'" I<J. • ' 1 • · '

t~bli~hed thdt the trial Court'~ j~dge's errors of law,an~ defens~ C6uns~l'(~)

• ' I '

construt~ive brea~h of duty,afEected Applicarit's substaritial rights,as due process requires a ~uilty ple~ to b~ voluntary and a qui~ty plea •• ,.can~ot be true ly voluntary if··the defendant has such an incomplete ·understanding of· the charg that his plea cannot stand_ as intelli~ent admission of quilt~Id~ B) ~he pervasive denial of effective assiatance of Counse is actual an intentiona breach 1 of[fiduciary]duty ~nd obligations by Hall and ~r Couch.Of whom,as malpra cticioners,alleged in their statement of the case,that" By indictment filed nov 3rd,2004"-but left-out that "bv a Grand jury indictment or defendant was indict ed on such-and-such date~ ..•• Then Couch states on for: the record, "the Court[rath er than the·judge] advice the Appellant that the range of punishment for the Of fenses foi which he proposed to plead quilty waa ~ minimu~ of,etc •• but not upon an Attorney's preparati9n for his sentencing on the cases being heard ! or andupon [inspite]of the provisions in the plea agr~ement that .supoosely blocked Ap plicant from filing an appeal.However,there are no proceoure barriers that bloc challenges to t~e trial Court's lack of subject-matter jurisdiction.Thus,reseac b~ Applicant has deminstrated that the trial Co~rt's judg~ erroneously failed t make sure ,Applicant ~nderstold the nat~re of the charges and that plain error e law was due to the judge accepting hi& plea when there was no sufficient fact~a

basis reqardino a critical element of the offense or offenses in one[void]indic tment ..• The Tex~s Court of: Criminal Appeals can agre~ these ill~strated errors by the trial Court's judgejcoupled with Hall's constructive b~each~are clearan• they n·;:-.t only :,orejudiced ~Applicant, but affected hia·· substant-i:~-1- _and legal due -

process of law rights~Therefore,as for this ·eror Two,a~ ~r6und,is r~ason forthe said Courts ~~dgea to vacate the conviction and ~i~and this matter for ~-

.C9t.J'.z) . 16,Case.

j ·:

~ntry cif a new trial1so as to proceed forward with his ability to make an informed de!cision regarding his olea options,if there are some in this type ofvoid . judgment

.. .

case sub judice.Dailey v.u.s ••. cASE#4:13-cr-00169-2(reduction .

of

20-years1withi,

.

guidelines);Alberty V.U.S . .

•• ~~se#3:.14-cr-00007(USDC 1 .NDTX)(range .

of H~0-188- reduced-to 90 months:) Hence, not onl v has A.t.)pl ican t not blessed with .I

the most effective defense co~nsel,but because of Ball•s badfaith co~rcion ha6 on direct consequences of continuing with his induced' quil ty plea, and thus,- was not provid~d,although Mr.Ball was allegedley standing n2xt to Applicant,it must ._also

••

be. .

conceded ·'·

that.· an . •

itnpact

f

on Applicant.'s·

. •

ability to voluntarily ple was inevi~able.Ruffin

.. ~ ;

v.stateJ3ls.W.3d

- ;.·. .

140,143(~ex.App.Houston

: . .. .• .

fl4th Dist] 19- ··:~

99,.pet. ref I d). Ther~fore '·the voliun_tariness of a plear prompted bu . .Such_ bogus in du~~~~nt i~ -govern~d b~ tn~--- Fo~k~enth Amendment t·o the _Urlited s~ates· Constitu-t ·.. -"· . ~-on;" ~f Am~r~ca a .leg.al duei pro~:~ss: standar:]s. Boykin, s:ipra·, at 395 ·u ~s;::~f 242 ~ 89

lt

I

c : c ~:~ .~.~~~;4~!~~!~~~::~i::::~i! ~;::: ~~:~ ~:~:::~f~!~ ::i·~~;:·!:~:~::==d~=: ·:::::~· .

s

-. - - - ~ou.~9r4i8·S.W:;2d 824,826(Tex~CI\~Apo.l967)'.~·:· _ __ _ _-- -.-

· '-· :·r · - ·Prayer For Reli!ef In The Interest of Justice -. l - . . I Wherefore,fore all the above·aforementioned reasons and for any other r~ason -

•! . \ stated herein,An~16n~the existing record or that may be shown on a hearing ofthis Writ 'of habeas corpu~'s memora~~um o~ law,~hd f~cts,that Applicant h~s sh own egregious harm by Ball and the ttial C~urt's judge,and it is respectfully submitted'that,Upon Appellate review,the Courtrs jus~ices reverse the' judg~ent ,set-asid~ the convictinn,and dismiss the cas~ _or c~us~(s) or in the al~ernat­ ive,reform the judgment,as modified to reflect an alleged crime of passion and remand that cause for a new trial on punishment,to meet the ends of justice • • ~~ecuted on b this day of tJ... J 2015, ~~ / ·, '··• Respectfully Submitted; .. ~f.j?t(f;f"*'.

_ Joe· Z~va .. _ (aka JOHN Z~ ALA)

Inhabitant of Mark Wayne Michael 2664 F.M~Q054,Tennessee Colony,Texa 75886

certificate of S~rvice and Dclaration of Truth r, am the Applicant Petitioner,who hereby certifys and duly will declare under pen~lty of perjury,that all I stated in thei,writ of habeas corpus 's memorandum of law and facts is true,correct,accurate,and complete for - this memorandum,and I am unlawful!~ and illegally restrained and confind of My ~y liberty at the Prison called the Mar~ Wayne.Michael Qnit,at 2664 F.M.2054, Tennessee Colony,Texas-Iocated in Anderson Cou~ty,in the State of at i have also provided t:-1e warden 1 Eddie ·o. Baker 1 a copy of t::te s Michael Unit's mail room department , on this_(__day of~2015,,"""-!~t::.;~fl;;.~:t:.:lllliile~ Pursuant· to Tex.R·•. ci:v.Proc.& Rem. Code, §132,001-132.003. Ap

/_: ,-~ :_17, Case. l3 0 ' ; /,z.)

...

'.,.

i .

•·

NAME JOHN ZAVAlA OFFENSE ARSON-HABITIWORSH ADDRESS 3400 CLINTON DATE 7/28/2004 . FORT WORTH TX 76106 .

· . RACE W SEX M AGE36 DOB 12118/1967 CASE NO. 0943395 DATE FILED sn12o04 ·. AGENCY Fprt Worth PO HABITUAL OFFEHD&l . CID NO. 0217565 OFFENSE NO. 04089106 COURT 396th District Court ':-·:

INDIC~ NO. 0943395J)

:;. '.

. -I

~~-t:B~":y-··A·-UTHO.RITY OF -hrc STATE OF TEXAS.

IN ~~--NAME:.· -AND:,.:

'1"':rD · ~ :~ ' .. - -·c.· ... i~n:-.· ;:::; L --~ .--; ~ ,., . · · . ;;.

. ". ~~~- ~~ :. ··-· THEGRAND.JURQRSQFTARRANTCOUNTY,TEXAS, . ·.-- . ..,.- - -. >

. duly el~tec{tri'oo, empB;Ileled, sworn, ~d ~~ed to inquire of off~es ~mmitted in Tarrant CountY, in the _S~ of Texas, ~pan~~~~ ~o~~resent,m: ~d to the. 297th DISTRICT COURT . .

. -~ ;:.-: ~~":.. :-·~ :;.~ :~:._ -~,:~··,-"·.:::· .. - - ! ' .

. of said Count)' that JOHN ZAV~ hereinMter called Defendant, in the County of Tarrant and State afo~d, on or about the 28th da~ of July 2004, did · · ·

THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE .AN EXPLOSION BY IGNITING A COMBUSTlBLE OR FLAMMABLE MATERIAL WITH AN OPEN FLAMa WITil THE INTENT TO DAMAGE OR DESTROY A HABITATION, KNOWING SAID HABITATION WAS WITHIN THE LIMITS OF AN INCORPORATED CITY OR TOWN, . PARAGRAPH TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH OAY OF JULY, 2004, DID THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE AN. EXPLOSION BY IGNITING A COMBUSTIBLE OR FLAMMABLE MATERIAL WITH AN OBJECT UNKNOWN TO THE GRAND JURY, WITH THE INTENT TO DAMAGE OR DESTROY A HABITATION, KNOWING SAID HABITATION WAS WITHIN THE LIMITS OF AN INCORPORATED CITY OR TOWN, PARAGRAPH THREE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH DAY OF JULY,2004,DID·THEN AND THERE INTENTIONALLY START AFIREORCAUSEAN EXPLOSION BY IGNITING A COMBUSTIBLE OR FLA1\fMABLE LIQUID WITH AN OPEN FLAME WITH THE INTENT TO DAMAGE OR DESTROY A HABITATION. KNOWING SAID HABITATION-WAS WITHIN THE LIMITS OF AN INCORPORATED CITY OR TOWN, PARAGRAPH FOUR: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH DAY OF JULY, 2004, DID THEN AND THERE INTENTIONALLY START A FIRE OR CAUSE AN E~LOSION BY IGNITING J,. COMBUSTIBLE OR FLAMMABLE LIQUID WITH AN OBJECT UNKNOWN TO THE GRAND JURY, WITH THE INTENT TO DAMAGE OR DESTROY A HABITATION, KNOWING SAID HABITATION

. WAS WITHIN THE LIMITS OF AN INCORPORATED . CITY OR TOWN,

COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH DAY OF JULY, 2004, DID INTENTIONALLY OR KNOWINGLY, WITHOUT.THEEFFECTIVE CONSENT OF KERI . LOVEDAY,'THE OWNER THEREOF, ENTER A HABITATION WI,TH INTENT TO COMMIT ARSON, 't " .! . .

PARAGRAPH TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE . DEFENDANT IN THE CPUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH ~-

NAME JOHN ZAVALA . CASENO. 0943395· •

PAGE 2 of 2 -flEriUiY -

DAY OF JULY, 2004t DID INTENTIONALLY OR KNOWINGLY, WITHOUT THE EFFECTIVE CONSENT OF :KER1 LOVEDAY., THE OWNER THEREOF, ENTER A HABITATION AND DID ATIEMPT TO· . ·. ·- COMMIT OR COMMIT ARSON, PARAGRAPH. THREE: AND IT IS FURTHER PRESENTED. IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH . DAY. OF JULY, 2004, DID ,INTENTIONALLY OR KNOWINGLy, WITHOUT THE EFFECTIVE CONSENT . OF ULLY LAUCHMANN,:TIIE OWNERTHBREOF, ENTER A HABITATION WITH INTENT TO , COMM_IT'ARSON, -· i' -· . . . . . . .

' PARAGRAP:H'FOUR: AND IT IS Ft1RTWR PRESENTED IN AND TO. SAID COURT THAT niE -· - •. · DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 28TH .

DAY OF JULY, 2004, DID INTENTIONM-LY OR KNOWINGLY, WITHOUT.THEEFFE(:TIVECONS~'I\" -~ ,_,,, jOF LILLY LAUCHMANN, THE OWNERJTHEREOF, ENTER A HABITATION AND DIDATTEMPT TO. · · .- ;COMMITORCOMMITARSON, -t·: . - .·. · ., "· '-- · _ - .:HABITuAL OFFENDERNOTICE: ~\k IS FURTHER PRES~D TO SAID COURT THAT PRIOR TO ; THE COMMISSION OF THE OFFENSE dR OFFENSES SET OUT ABOVE, THE DEF&NDANT WAS -FINALLY CONVICTED OF THE FELONY OFFENSE OF DRIVING WHll..E INTOXICATED AND ·FELONY . '.REPETITION, IN THE 297TH DISTRIC1 (::OURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0676489D, ON THE 18TH DAY OF AUGUST, 1998, AND, THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES FOR WinCH THE DEFENDANT WAS CONVICTED AS SET OUT ABOVE, TilE . DEFENDANT WAS F-INALLY CONVICTED OF THE FELONY OFFENSE OF DRIVING' WHILE INTOXICATED AND two PRIOR MISDEMEANOR CONVICTIONS FOR DRIVING WHILE INTOXICATED, IN THE 297TH DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0430067W, ON THE 25TH DAY OF JANUARY, 1991, .

Filed (Clerk's use only)

FILED .

OMAS A. WILDER, OIST. CLERK TARRANT COUNTY, TEXAS

NOV' 0 3 2004

IME -f---,o(~~-_

AGAINST TilE PEACE AND DIGNI'IY OF TilE STATE.

V . ~DEPUlY

v~~·· Criminal District Atto · , Foreman of the Grand Iury Tarrant County, Texas - INDIC'r.MENT ·ORIGINAL.

. . .

• -

TtfOMAa

. . PILID· AWI\.DE!'~If. Cl.ERK

TARRANT COUNTT, TE:l<A8 .

•. STATE'S EXHIBIT NO~ 1 -

· CAUSENO. 09lf3]g'Q.. .JUN ·~DEPUTY . > .

. · TIIE.STAtn OF TEXAs

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.. · · § . · . . §

• IN Tim ~6d• lUDIC~TiuCT . ' ' . .

:·.

vs. § ·cOURT OF §

Jobo Z01.v~k · § TARRANT COUNTY, TEXAS

WRI.TfJN PLEA ADMONISHMEN.fS .' On this the . .. fo ·-~ day of .JUV\Q..;;. . . _ , 20~ pursuant · · .

to the requirements oflaw, you,)the defendant in this cause, are hereby admonished in writing by the Court as follows: _ .

. ~ · ·· ·. 1. -; -[)<} You are ~h~ed by indictment or ~ormation wi~ the felony offenseS ~l. ..

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Wrlutft PWI.UnuillblurWtu • Ptlge I 0/ II

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:3. If convicted, you race the following range of punishment checked below: ..

- ~~~=!=~~~~ti~~~~::;~~;ree!s;;:!:n~ - - - Criminal Justice. In addition. .,fine not to_exceed $10,000 may &1so be assessed.

. . . ; .. . . . : . ' . . . .. ·. ;-· [ ] · SECbND DEGREE-FELON¥: . A term of-Dot more than. 20 year8 -iloiJe!i's ~-- ·, , , ;:,~ ~ ~ years .confinem~ in the Institutional Division of_the T~ ~~~t o~ .. _. · · ~ Criminal Justice. In addition, a fine not to exceed $10,000 may also be assessed. · . . . ~ . .

I [ l Timm DEGREE FELONY: A term ofnol m~ than 10 Years nor lesil.tban • ..

· 2 Years confinemeritin'tbe lnstitlitional Divisionofthe;TexasDepartment of Criminal .. ~- , .

·I i 'l Jilstice. In addition; J fine not to exceed ,$10,000 may· also be:,&Ssesseci.- ··{If the · · offense was commi~ before SeptembCr. 1, 1994, .a. term: .of-c:Onanement in a ... __ ____ _ .

I commUnity c:Omiction&l facility for a term of not more than one {1) .yeat:J;Day;be"::I·:o•_:;:~"'-'"'-c '~-~; _;. _ ;. ~-" ,,, assessed in' lieu of confinement in the InstitutionalDivision).. -- .,,.:~~-- ·. .. ....·: ... ~~~:-.. ': :: . ~.--· -cc· l ··i ' ·.. ~~ • •' '} ': • . •;." ..

. [ - l FIRST DEGREE ENHANcED: Life or any term of not ~ore than ?9 years • '. . : . . I: . ..

+ :! ··. DC?! less ~ ·.1s -~ co~ent .in ~e Institutional Division_ of the. Texas ; ·

1

,, · D~artment.~ ~Justice. ·In addition, a fine ilot to ~ed $1(),000 may $o be · ·' assesSed: . i j· ' · · ·

[ ] . SECONP DEGREE ENHANCED:_· i..ife or ~y term of. not more thaD 99 . . years nor less thail s: ~ confinement in tbC ~tutional Division of the Texas . Department of Criminal JUstice. In addition, a fine not to exceed $10,oo0 Diay iuSo be ~ . .

......L. liTBIRD DEGREE ENBANCED:· ~ tenn.ofnolJDP,e:~:2o:year8·nor iess than 2 _years confu;lement in the Institutional :Division of the Texu .Department of·. Criminal Justice. In addition. a fine not to exCeed S10~000 may also be .ilsilessect ·

[ · ] STATE JAIL FELONY: A term ofnot less .than 180 days nor-more than 2 . years_ CC)Dfinemeilt in> a state jail. In additioo.. ... fine not to ·exceed, $10,000 may be assessed. · . . · · · · Upon conviction, the period of confinemCJJ.t my be suspend~ and then yc;u .

will be placed Wlder superVision of the CQurt for a period of not leis than 2 years nor. ·· more than S years. The Court may also suspend all or part of any fine BSSe$sCd. .

As a condition of supervision, the Court may order that you be confined for up . .

to 90 days in the county jail, or not less than 90 dayi nor n:iore than 180 days in a state jail. .. . . .

If your conviction if for ·D'!amJfact;ure, delivery, or possession with intent to deUver a controlled substance in Pmialty Groupe 1 or 2 of Chapter 481 of tlici Health and Safety Code,

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or for Delivery

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of .

Marihuana, the Court. may order your confinement ·. . .

•• • in a State Jail for not less . than 90 days nor more than 1 year as ~·condition of supervision. · · ·· · ·

..... :.( ] ,.§TATE JAII:"f'EI;;ONY ~CED To 'THIRD DEGREE"FELON'X~. ·.· .... ..:..: ·. · . A~emi ofimprisonment.fornot·tnore than lO.yearl nodess·than 2 years ~ent: ·. ~; .· · in the Institutional Division. of the Texas Department of Criminal Justice, and in addition, a fine not to exCeed $10~000 maybe imposed. · . .

· A person adjudged.guilty;of a· state-jail felony shall be punished for'a·third · · degree felonY if it is shown on the trial of the on"ense that: · . .·· · (I) · a deadly-~eapon as defined by SeCtion 1.07 of the Texas Penal Code ..

. ·' . ·was used 'or exhibited during the comrriissfon of the. offense Or during t . the ~ate flight following the colllJiJi8si.On of the offense, and that . .

th~ i.DciiVidual used or exhibited the deadly wc:apQn or was a party tO . ··

·;J·, : the ~ff+.: and _knew·- that· a. deadly weapon--woUld. be. used exln1nted; or .. .. .. . . .. ar, :j .. ;·;;, .,_,:,,_., .:.'"'' :.:,~,r·, i;;,!<~~:-.: ~~~~f:'~eJi:;~~~;'!:fe~~;t~~re~~n~ ;: . ;·!C " l'' ,1 · Proce_dure; or · . · . . . · -- .., ... ·· ., ..

i b. for V.:hiCh the judgment contains an ·affirmative finding under:. ..

-:' ._:· ,;···-.

.. •I - . ~-~·;.::~~~~:"E7~.·i.·

+ Seetic:ln ~g(l)(2), Article 42~12, Code of Criminal PrOcedure; or . · ~~ .. c. the. mlti~dual is eonvicted for a state jail feloity punishable under pen;.}!Code Section 12.35(a) 1111d the individUal has. previouslY · .. ~

!

. . ·been Fallyconvicted oftwo state jail felonies.

[ ] STATE JAIL FELON)' EN8ANCED TO SECONP DEGREE FELONY: A term of not more Jhan 20 years nor less than 2 years confinement in·Ulc lristitutional DIVision of the Texas J;>epartment of 'Criminal Justice. In addition, a· -fine not· to exceed $10,000 may be ass~ A person adjudged guilty of a state jail felony slnill be punished for a ~ .·· degree felony if it iS shown on the trial of the offense.that: ·. · ·:, , ,., ·..•· +·:· ,v:: · ~ c -;.:.'

(1) . · the defendant lias been previously convicted. of two felonies; and the second previous. felony· conviction is for an offense that oCcurred · subsequent to the first previo~ conviction having become fuui.l. ··· ..

[ ] STATE JAIL FELONY PUNISBEiHJNDER 12.44Cal PENAL coni A term of up to 1 year confinement in the County Jail arid/or a fine not io c;xceed $4,000. may.be.imposed.

[ ] STATE JAB.. FELONY REpUCED JO cusS A MISDEMEANOR UNDER 11.44lbl PENAL CODE: A term of up to 1-year confiilement in the County Jail and/or a fuie not to exceed $4,000 may be imposed. · ·

[ ] QnmR:~----~--------------~--~--~

WriltMP/a~·l'tlt-Jof/1

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4; JURY TRiAL:

·You are ·entitled to have a jury detem:tbte. whether you are guilty or nbt guilty; and if guilty, to assess your-punishment; ·Should you bave·more than one case pending, you may have them tried separately. ·

, .. S~ . ·You maY iequest.that .. the.indictmentbe..tead and exp~Cd·;to:you.in Qpen ;.. · court. You arc· not obligated·to give·evidence·against yoursel£ ·You may require the State to· ·· ·· prove.the elements oftheoffense·illleged in the indiebnentby.legaland competent evi~ee · beyond a reasonable doubt. ···"Vou · and your. attomey · may .confront and cross-exalnine . witnesses~ You have the power of subpoena to bring _witneSses into court to testifY :iri.yolir · "behalf. I -~

. 6. OPEN PLEA !NO PLEA BARGAIN): This is yc>ur trial.. Should the Court ...

find you guilty, your -punishment may be assessed 11nywbere WitJUn the range prescn'bed bY· -:. ·. · la\V f~ ~offense. If.you -~ e~gJ.'b~e, you may. receive probatio~.or:.def~judication; :_: :- -· 7 .. _·-. but there ts no assurance that }'au will Onee:the Court has· ~tved your.gwlty plea; you . ·· mayno~wi~wthat_pleawitllotitpenniasionoftheCourt. · --·-· -·.~. · - ---- ------- --- · :-.:-::-:&=:· ::;£. -C:::;..,!!~::-;.:.:.~- ~ . 7. . ·· PLEA JARGAINING: A plea bargain or reCommendation of punishmen1 i$~ : ~ ' '

- --'~-.:. ''. NOT BINDING on. the CoUJi. The Court may set puuisluiient anywhere:Withintherimge,~~::~ ~ded by law for this on:CJU\e.j If there ~ a plea bargain agreemen~ the· Court ~ll inform .. y.ou m open Court whether the ~~ent Wtll be followed before making any finding ~your plea;:. Should the·eourt rejecti.the a8reement, ypu will be permitted to wi\Jldraw yo~ plea should you desire. There. "¥1 ·not. be any· binclin8 · agreementS. regaromg conditions. of community supervision. The c:Onditions of community supervision ~~by the Court. Any .· waiver of specific conditions of eommunity supervision muSt be approved by;the Court-prior : to the plea.

8. PERMISSION TO APPEAL: · When the CoUrt follows a plea bargain agreement, permission of the Court must be given before you can prosecute an appeal on any matter in the case,· except for a matter rilised by.Written motion -filed prior to 1rail.·.This .Court . seldom ~nsents to an appeal where a conviction is based upori a guilty plea. .Where. there is no plea bargain agreement, any appeill of your conviction upon a plea of nolo contendere or . plea of guilty is limited to jurisdietionill issues only.

. . _9; a cmzENSm: If you are NOT citizen of the United States of Amerl~ a.

plea of. guilty or nolo contendere for this offense· may result in depOrtation, the exclusion from admission to this country, or the deniill of naturalization under federilllaw. ·

10. DEFERRED APJUDICATION: Should the CoUrt defer adjudicatipg your guilt and place you on probation, upon violation of any imposed condition, you may. be mested and detained as provided by law. You will than be entitled to a bearing limited to the determination by the Court, without a jury, whether to proceed with an Bdjudication of your guilt upon the originill charge. No appeill may be taken from. this determiilation. Upon adjudigation of ;yow plt, the Court may assess ~ur punishment anywhere within 1bc ·ranse provided by law for this offense. ·

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After adjudication· of gJ.lilt, all proceedings including assessment ~or .punishment.

·. pronoun~ .of sentence; gnmting of probation and yom right tp. appeal:continue as ·if adjudication of guilt had not been deferred, except that a.Court assessing punisbnient after an adjudication of.;guilt. of.::a .. defendant. cluqed ~~th :a .:state ;jail :felony· ~y; &Uspenci the _ . . -"-- imposition of the sentence. and plaCe. the defendant -on c:Ommunity :supcmlii.on or may o~et-", :. · ...... the sentence be executed, regardless of whether the defendant b8s previoUsly beeil conVi~ed· ·.. ·· ofafelony. . .

. ll .. ·· PROBATION: If.the Court grants you straight probation a5 oPJ,osedJo.:

.deferred adjudication.- upon ·violation.of Bliy-Jmposed condition; you may be arrested and · detained as provided by law; You ..will then .be entitled .to a hearing limited to the • detcnniJlation by_ the cOurt, without a jmy. whether to revoke ~ur probation and sentenCe i .. ·. you to a term of confinement Qot to exceed that originally. asseSSed by the .Couit ai.the _time youwerefound guilty.- . . . ·\·- i -·- . . . . : . .. . . • . . .. .. _·.. . . _ . . ... . . . , ... . .. . You:will not:he entitled-~ earn good time Credit on state.jilil_sentences.. The:Court · .. . may. but is notreqUited, to gi~e you credit on asentence' for any time you.were required tO "-- - -.

serve in a state jail as aconditi6n of the sUpervision. · · . . . · ",~.,; •i: ·~ ;.~~':.:!';: ~~ ,:. ':2·:;;:-;•••.•.

-·-···. _::·...~.- :. li~:~:": TERMs OF StiP~RVISION: If the Court ~ts you d~ferred SfljWlication:h;~ ..

. probation or straight probatior, jthe Court reierves the right to amend the conditions~ of ·• ·· · ..

probation. The ~urt may·~ ~tend the term ofprob~ti~n not~: exc~ ten years.· . _.,., .

·... ·.. ~ . -·13. ·. PAROLE:. ·NFither ·the Court nor· your ~ey ~e- any. pfmiuse8 or .. ~" ·.·· .i'

representations about the amoUn.t of acitual time you will serve on asentence of inc~on · in the Institutional Division of the Texas Department of criminal Justice. Neither the Court nor your attamey makes any tepresentations about the-disposition. of any parole ~tion hearings~-. , , -- ·

, 14. SEX QFFENPER REGISTRATION: Ir.}'l)u are convi~ of piaced ~-. oi · deferred adjudication for~ offense listed in Chapter 62;.Code.of.Criininal Procedure, you will be required to meet the registration requirements of Chapter 62. You will atsj) be subject to the driver's license applic&tioil Proc:edures listed irl Article 42.016, Code of. Criminal Procedure.. . . .

.. . . ·1s. PRESERVATION OF EVIDENCE: Articie 38.39 of the Code ofCririlinid.

. Procedure requires the proseeutor representing the State in this mailer· to preserve evidence known to contain biological material that if subject to scientific testing could establish or exclude a peri;on as the perpetrator of the offense. This evidence mUst Usually be preserved in a non-capital felony until either the defendant dies; completes his sentence, or i~ reieasCct on parole or mandatory supervision. .Such evidence may be destroyed if the State· c:Omplies . with the provisions of Article 38;39(d) of the Code of Criminal Procedure and the_ defendant does not interpose a written objection. In addition. pursuant to Article 64.01 of the COde of ·Criminal ProcedUre a.convicted per&oil ~y be entitled to forensic DNA. testing. ·

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. 16.. FUTURE USE OF CONVICl'ION FOR ENIJANCEMENT:.-Showd -you · be found guilty of a felony offense, slich conviction may be l!Sccl·to enhance odilcreasc the punishment range for any futUre felony or misdemeanor conviction. · · · · · ··

. . ··1.7:; · ··.BANKRYPTCY:·.dfdhc,ec;urt;pts·.~bation·OI'·defers.adjudicating:.yOur>:.::·!;.~~~~:: · :·,

.

a

. gUilt and ·places you on>probation,;,.:and -condition, of probation .inclUdes .p&.ymeiit .of .. , .. :... ·>:

.restitution to ·a victim of the offense,·pay~nent of restitution shaii nOt be discharged through · · · . ~-- ·· -sub$C!Cluent bankruptcy. proce:C:dings. --..The COurt shall :COnsider any·. attempt.~ to disc:hqe ·· · ·

a

payment ofresti~tion through bankniPtcy violition of the plea agreement• -· '

. 18. If no indictmen~ has been returned by a grand jury c:haiging you with tbi8 · . offense, you do not have to .BtiUut ·trial witil.such an indicbnent bas been returned.· You then will be given ample time (at jeia.St 10 days) to consult With Your attomey ..before trial. By signing this document, you:~ -to. waive your. right .to .:wait. 10 .days- in -the:..event .an :: ~ .

~i! . ·information is filed on today'~ c!ate. You alsO·-waive-yolir right ·to,w!DHO days_;for your · .-'i

i

- •.. · · attorney tO prepare if the attomey/was appointed more recently thail10 days-ag(); -,_.- ....:::,.~" _ i . . . .. . .. ~-- . l . .;. ·. . .. .· ·. .. . -__ :. :.: -:__:_: ·-.. _-· --_... - - ---_ ·.·. . .

--! · · 19. . If a victim impact statement bas been retunied to the prosecutor ..under Art.. ·· · 26.13, Code of Criminal Pro~uh, the Judge has revic:Wed a copy o(that.~9.rl; \ ... _ ' ... 2 ~? ·~ ·· ·0.; ' ·. ·]· 1- ·~•~•••. ·.-.~·""'·'~'"•· <OC.,:.•."·"·:·

. These admoniShJn~

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r+e :J.:

given ~-this Defendant on ~e _abov~noted da~e•. ·· . . . .

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I bave received and reviewed the foregoing· admonishmentS. with llttorDeY· ·. l · my /.

understand eaCh and every admonishment and· I have. no questions· of the Judge 'or my· · attorney ~nceming these ~~ents. · ··

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• • •

.,·... NOTICE PYRSUANT TO ART.38.39@,TX. CODE·.OF·CRIM·PROC. :· ·

The Crimin8t District Attorney ofTarrant.County, Texas, pUI8U8Dt to-Article 3S.39(d) .

o(the Texas .. Code qf'Criminal.Procedure bereby.notifi~ .the •.defcndant,.bis•attmneY of .. -: .. ·-· · · ·. ·-~rd, and .the. convicting::.eourt:in:.tllis .C:a\J$~ 'that· iLwill d~y~~y;aDd'.alEcvicieDcri,: ·;·:-: :~·-·:. ·:.

required to be 'preserved in:c:Omplilince ·with Article 38.39(b) .within 91 ay& ·from -the· d.ate· .-: ,. · .· •.· .

defendant n:ceives·this.notice. ··Moreover, it is hereby acknowledged by.·dcifendant, and his :.· ·· · attorney of record, that. this noti~ was received in compliance with Article. 38.39(d) of the· Texas Code.of~iminal Procedure. . · ·

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WRITTEN. WAIVER OF DEFENDANT-JOINED BY ATTORNEY . . .~ :q;. ~ .. . .# ...

· . COMES NOW, the Defendant, :_in open Court,joined by my attorney and states as follows:·· . . ...

'Ji - -;. ·· · . . . ._;~ -:(I) · . I-~~le ic, n4~e &~sb bing\lag~ {~r i.bve:bad b-~~fit;~j~;-~fe.;~):: -' 'i and fully uDd~d ·the allegatio~.in :the ;lndictment·•or:-Intonnatioii ~ · .. . ... ,_,._,;: . . i .. ... ----~B;\ve arrai~ent. arid formal. reading of the Indictment or felony "';;;;'.(;:;,;_,~,;:;. :.o.;,;, )'2.;•,0,/;~; ' 1 ·· . .. • • " · •• • . · . • • ~--lnfonilation; ;_;__ . _;. · -- ---- · · ·4: -,~_- ........ '··· '

1

. ,: ... (2) · · lam.;.mentally·foinPetent and aware of the ~SSlble punisbnient ·and th~ ·. : :C ~-. conseqUences o~ u1y plea, which is knowingly, freely, and voluntarlly en~ . . --' · ~:; · andlwaiveanyBndall:def~Imighthave; .· · .·.. ' · .... · · . - ··· .

:f (3) I ~~e ~ ~d j~~ any righ~ I may have .for further~ tb prep~ for ~~t; . .

(4) If I pm proceediitg on a felony Information, I' waive my right to :fudictm~ by · a grmdjury;. · ·. ... ··

(S) Should I be tric;d on more than one case, 1 agree that all. may be beard and determined at one time; · ·

I waive all pretrial motions that may have been: filed in connection With my case(s);

(7) : My attorney provided irie fwly effective. and .ccimpetent representation ~d I am totally satisfied with the representation given to me by my attOrney. . ·

(8) I also waive and give up~ in accordance with Art. -1.14~ Code of CrlmiDat · ProCed~ all rights given to me by law, whether of form,_ substiDce, or procedure; ·

(9) Joined by my attorney and in ~ordance ~th Art. 1.13 and 1.15 of the Code ' ..

of Criminal Pn:icedure, I waive and give up· my right to a jury, both as to tqY . guilt and assessment of' my punishment Under Art. 1.15. Code of' CrimiDal. Procedure, 1 waive aild give up the right to appearance, cotlfrOntatioiJ, and·.·

Wrura Plltl .u..,.,_·Pap 7ofi i .

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• ••• cross-examination of the witnesses, and l consent. to ·oral and written. . stipulations of evidence; . ··· ·

.(10) · l.wai\'emy.right.not:to incriminate myselfan:d asreet9~.testify;under.oath and; ..,_,......-~­ judiciiilly co~_:o;1y gUilt ifreq~ hy~y attorney (no the State'sattoinCy;::-~-~--~ .;..-:_:;,- ···.

. . . '• . \ . . . .. . '.... .· ·. . .!

(11) . I w8ive and give up. my right to have the~- reportel-·maii:e ·a recc)r(roitb:e;. ~- ·';·'t:~~::

. proceedings when my case(s) are heard and I enter my plea; · \\ .

(12) I Waive preparation of a presentence inv~gatiem report; ·

(13) No one has ~ed.

coerced, forced. persuaded. rior promised ~e ~ythlng •·..

,,. .. to enter· my plea;' o~er than the plea recommendation contained in Para8r&ph .•-- · · . Two, Page Onehf.tbe WritteD. Plea Adm.()Jlishments. l:requeSt.the Court.fu .....

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. ·,. . . . ··' -' . approv~ ~pl~ rFJDlllendation-and dispose·ofmycase(s)•in··.accOrdance··.··:. ..i .. ·· ·

' ........ ~

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,;·::··.:_

:':(i4)':

. ~~th;

My·~~~omey

) ~-

: . . i ; .. · .· . ' .

bas dUlly explained this waiver and foregoing . :::> - . : . . .· Written~='~'~':- ,~·c, .:;.::.:.·. ......... --

admonisbmenbi kivtn mebrtheJudge. I understand all ~fmyrights anct~h.;i',.,,,.,;~ ;:;,.=·· .,,~, ·.•...• ,-~ ,._..

:[ . . .... _ .. ~ ...... -.~· ~~~bmentsf.IJbav_e_notquestionsoftheJudgeormyattom~ ..... · ·c:• . ,. .. . ,.

· (15) . lviaive and give) up_ any and all rights 'o.hppeal. . · · · . ~- -: . . ·•. . i· I . · {16) WAIVER OF J!RESERVATION OF EVIDENCE: I have been advised by .

the. Judge of the above named couit of the requirements under the Texas Code .· ot Criminal Procedun:, Article 38.39 that any -evidence in possession of the attorney representing the State .or a clerk or any other .officer, which is ·knOWJ1· · to c:Ontain biological lllllterial and which if Subjected. to scientific testing ·· would JilCm: likely than not establish the identity of the p~ CC)mD]itting tbe . · offense for which I. am presently charged in _the above-captioned and . numbered cause or which would exclude a person. from a gro'ilp of pcr8oJ;IS: ·. ··· ·who could have coulmitted .the offense for which I am presently charged iri the ' · above-captioned and numbered cause, shall be preserved.. I further have. been · · · advised that such evidence may not be:: destroyed by the attorney ~enting . · · · . the state or a clerk or any other. officer possessing s~d evideilce if either my . .. ~ '.

attomey, the above-iiamed court, or I object within. ninety (90r ·days· • : : having received notice of the planned destruction of that evidence: .. . · · Joined by my attorney, and fully Understanding my rights .to (1) the · preservation of. the above-descn"bed evidence, (2) notice''of any pianned.. •· destruction of the above-descn'bed evidence, and (3} an objection to any,· .. destrUction of thfi above-described evidence, I wish to waive those rights and do not object to the deStruction of the Bbove-described evid~; ·I furtller wish to waive those rights and do not object to the destruction of that evide4ce .at such time as either the attorney for the State or a clerk or any officer •• curiently in possession of that evidence sba11 deem proper. }agree tM,t .teSting

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.•1 &Wear ~d, it is'.iny:testimony:~h~: i'h&ve-~ever:befoiC,been;:_, .open. colirftbat '''-: -·,::'· convic~ed of a feloriy _offense in ·imy court .of the. tate o£Texas, any_other state,: nor iri any. Federal Court of the United States. I request the. urt to consider my application for -a probated sentence..

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. In open court w~ joiil ~d i&pprove defend8nt•s waiver of jlll'y' trial purSuant .to Art: ·· : • , ..; 1.13, Code ·of ~inal Procedute, and the stipulations of evidence puisuant to .Art.l~Is; · · · . ' Co~e of~ Procedute. AS iprovided m. Section.12.4S of ~e )'exas PenatCoiie; We .

. .further agree and consent to the ~ssion of guilt 'of any unadjudicated offense designated in Paragraph 2, Page One of the Written Plea Admonishments: In additioil, the Court finds as a fact that tlie Defendant ·is mentally competent ·and that his plea is intelligently, 1i:eely;,·.. · knowirigly and voluntiuily entered. It is agreed that the Court may takejudicial noti~ of this'

document an the Court takes judicial notice of same. · ·

·.~Jt: ···~·.·.

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