CAUSE NO. WR-83,312-01

 

 IN THE 

 COURT OF CRIMINAL APPEALS 

 AUSTIN, TEXAS 

 ____________________________________________________________ 

 

 EX PARTE JAVIER TAMEZ, 

 

 APPLICANT 

 __________________________________________________________ 

 ON APPLICATION FOR AN ARTICLE 11.07 WRIT OF HABEAS 

CORPUS IN CAUSE NO. 08-CR-0741-D IN THE 105TH JUDICIAL 

 DISTRICT COURT, NUECES COUNTY, TEXAS

_____________________________________________________________ 

 APPLICANT’S OBJECTIONS TO TRIAL COURT’S 

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND 

 RECOMMENDATION PURSUANT TO RULE 73.4 

OF THE TEXAS RULES OF APPELLATE PROCEDURE

_____________________________________________________________ 

 ALFREDO MORALES, JR. 

 ATTORNEY AT LAW 

P.O. BOX 52942 

 MCALLEN, TX 78505-2942 

 (956) 536-8800 BUS 

(956) 381-4269 FAX 

 EMAIL: amjr700@gmail.com 

 

 

WR-83,312-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/25/2015 4:14:48 PM

Accepted 5/26/2015 8:08:03 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 5/26/2015 ABEL ACOSTA, CLERK 
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

 Applicant JAVIER TAMEZ files his objections to the trial court’s

findings of fact, conclusions of law, and recommendation, and in support

thereof would show the court as follows:

 I.

 PRELIMINARY STATEMENT

 The trial court entered its findings on May 5, 2015. The trial court clerk

certified the findings and entered them into the minutes of the court on May 

13, 2015. On that same date, the findings were mailed to the undersigned 

counsel. (The District Clerk’s Office envelope is postmarked May 13, 

2015.) As an officer of the court, counsel would represent that he received

the findings on May 16, 2015. Rule 73.4 of the Texas Rules of Appellate

Procedure allows counsel ten days to file objections to the trial court’s 

findings. Accordingly, counsel is filing his objections within the time frame 

provided by the rules.

 The Applicant objects to all of the trial court’s conclusions that trial 

counsel rendered the requisite effective assistance of counsel in this case. It 

is clear that the trial court did not conduct a careful, studied examination of 

the Applicant’s writ, the affidavits, or the record in this case. The trial court

relied exclusively on the State’s response, even adopting the State’s
proposed findings and conclusions verbatim, without any independent 

analysis of its own.

 Accordingly, the Applicant urges his objections as follows:

 II. 

 OBJECTION 1:

 TRIAL COUNSEL FAILED OR PRESERVE THE APPLICANT’S 

 RIGHT TO APPEAL BECAUSE HE DID NOT FOLLOW

 THE MANDATES SET FORTH UNDER JONES v. STATE

 While trial counsel’s affidavit states that he consulted with the Applicant 

about his post-conviction rights, including the right to file an appeal, he 

failed to take the appropriate the two-step process outlined in Jones v. State, 

98 S.W.3d 700 (Tex. Crim. App. 2003): one, file a Pro Se Notice of Appeal

and file a contemporaneous Motion to Withdraw as counsel of record.

 That he (trail counsel) may have advised against filing an appeal is 

immaterial and not controlling. Trial counsel knew Applicant wanted to 

appeal, but instead of assisting him in providing the appropriate notice to the

court, he did nothing, referring him to an appellate lawyer instead. The trial

lawyer’s responsibility as trial counsel did not end upon the conclusion of 

the revocation hearing. Rather, it continued for the next thirty days during 

which time he had to follow the procedure in Jones v. State.

 Trial counsel rendered ineffective assistance of counsel in this regard, 

and the Applicant is entitled to an out-of-time appeal.
 III.

 OBJECTION 2:

 TRAIL COUNSEL FAILED TO PRESENT EVIDENCE AND ARGUE 

THAT THE ALLEGED VICTIM, NOT APPLICANT, WAS THE ONE 

 WHO HAD INITIATED THE CONTACTS

 The record clearly substantiates the Applicant’s position that he merely

responded her constant texts. In fact, the evidence demonstrated that the 

alleged victim had, in fact, deleted some of the texts so as to give the 

appearance that it was he who, at times, was initiating contact. The State’s 

attorney even conceded this point in final argument and, even then, 

Applicant’s trial counsel did not make any argument to the trial court that 

the statue required “initiation” on the part of the Applicant. The evidence 

was insufficient to have sustained a violation of his terms and conditions of 

his probation. More importantly, trial counsel should have argued that, 

legally, the prosecution had no case, because at the time of the hearing in 

question, there was no legal precedent to show that text messaging was an

“electronic communication” within the meaning of the statute. It was not 

until mid-2014, that an appeals court held, for the first time, that texting 

could be considered an “electronic communication” under the statute. 

Perone v. State, No. 14-12-00969-CR (Tex. App. – Houston [14th Dist.]

2014). Again, however, in light of the specific wording of the statute,

when taken together with the definition of electronic communications, the 
Appeal’s court’s decision is questionable.

 Trial counsel rendered ineffective assistance of counsel on this point.

 IV.

 OBJECTION 3:

 TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE ADVISED 

APPLICANT TO ENTER PLEAS OF “TRUE” TO THE STATE’S

 ALLEGATIONS OF NON-PAYMENT OF FEES

 Prior to beginning the revocation hearing, trial counsel advised and 

allowed Applicant to enter pleas of “true” to the allegations that he was

in arrears in his monthly supervisory fees, court appointed fees, electronic 

home monitoring fees, and child support payments.

 Suffice it to say, that Applicant had a legal defense to all of these 

allegations, given that during the relevant time period when they were due, 

the Applicant was incarcerated, unemployed, or sporadically working odd 

jobs. More importantly, the State, not the Applicant, had the burden to show 

that he had willfully failed to make all these payments. (See legal 

authorities cited in Applicant’s writ.)

 Trial counsel rendered ineffective assistance of counsel on this point.

 V.

 OBJECTION 4:

TRIAL COUNSEL FAILED TO OBJECT OT THE STATE’S EXHIBIT 

 WHICH CONTAINED THE OFFENDING TEXT MESSAGES

 

 The State presented only one exhibit to support its allegation that 

Applicant had contacted the alleged victim in violation of the statute and the
terms and conditions of his probation. State’s counsel, without setting the

proper predicate, merely tendered the exhibit to the witness, who 

immediately began testifying as to its contents. Trial counsel did not object, 

and all of its contents (i.e., numerous texts) came into evidence. The fact 

that the exhibit could have been properly authenticated and formally 

introduced as evidence, as the State suggests, is of no moment. It was 

considered hearsay evidence until such time as all of the formalities were 

met. The Texas Rules of Evidence apply at revocation hearings. Ex Parte

Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012). 

 Trial counsel rendered ineffective assistance of counsel on this point.

 VI.

 OBJECTION 5:

 TRIAL COUNSEL FAILED TO REQUEST FOR A CONTINUANCE

IN ORDER TO ADEQUATELY PREPARE FOR THE HEARING

 

 The record establishes that trial counsel was not fully prepared to contest 

the allegations in the State’s motion to revoke. Even the trial court, 

recognizing that counsel was not totally prepared, allowed counsel to review

the State’s exhibit by calling for a brief recess in the proceedings. By having 

requested a continuance, trial counsel would have been able to secure the 

witnesses he needed to cast doubt on the alleged victim’s credibility, and 

would have allowed him time to prepare and present his own exhibit, which 

he told the court that he had some evidence he wanted to tender for the 
court’s consideration, but candidly admitted that it was not in “proper 

format.”

 Trial counsel rendered ineffective assistance of counsel on this point.

 VII.

 OBJECTION 6:

 TRIAL COUNSEL FAILD TO PRESERVE CERTAIN ISSUES FOR 

 APPELLATE REVIEW

 Because Applicant had not yet been convicted on the underlying offense 

because of his deferred adjudicated status, trial counsel could have filed a 

pre-trial writ of habeas corpus in order to challenge the Applicant’s 

contentions that his guilty plea was involuntary and that his sentence for the 

stated offense was harsh and disproportionate under this court’s authority in

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) and Jordan v. State, 54 

S.W.3d 3 (Tex. Crim. App. 2001). Trial counsel failed to preserve these 

issues for appellate review, and Applicant is foreclosed from urging these 

two particular points, even if he were to be granted an out-of-time appeal.

 Trial counsel rendered ineffective assistance of counsel on this point.

 VIII.

 OBJECTION 7:

 TRIAL COUNSEL FAILED TO OBJECT TO EXTRANEOUS 

 OFFENSES ALLUDED TO BY THE ALLEGED VICTIM 

 At the punishment phase of the hearing, the alleged victim referred to

several extraneous events about abuse she had suffered at the hands of the 
Applicant: punching her during their arguments; demanding sex in 

exchange for child support; and threatening her with physical harm by one 

of Applicant’s family members, who, according to her, was a member of the 

Texas Syndicate, a violent Texas prison gang.

 Since all of these matters were nothing more than character-conformity 

evidence, all of these incidents were objectionable under the applicable rules

of evidence, but trial counsel made no effort to levy any type of objection.

 The State’s contention that this evidence was permissible under Article 

37.07, and not Rule 404 of the rules of evidence, is without merit. A 

revocation proceeding is civil in nature and is not a criminal trial. Weed v. 

State, 891 S.W.2d 22 (Tex. App. – Ft. Worth 1995). Therefore, the Texas 

Code of Criminal Code provisions do not control. Moreover, contrary to the 

State’s allegation that Rule 404 is limited to guilt/innocence stage is likewise 

without legal merit. The language of Rule 404 imposes no such restriction

or limitation.

 Trial counsel rendered ineffective assistance on this point.

 IX.

 CONCLUSION

 For the forgoing reasons, the trial court’s findings that trial counsel did 

not render ineffective assistance of counsel is not supported by the record or 
by trial counsel’s affidavit.

 X.

 PRAYER

 

 Applicant respectfully requests that this court find that the trial court’s 

findings and conclusions are erroneous, both in fact and law, and that his 

trial counsel rendered ineffective assistance of counsel. In the event the 

court is unable to make a decision with the information forwarded by the

trial court, then the Applicant would request that the court remand the writ to 

the trial court for an evidentiary hearing, so that the Applicant is allowed to 

more fully develop the allegations, and this court can then make the 

appropriate disposition of the Applicant’s requested relief.

 Respectfully Submitted,

 Alfredo Morales, Jr.

Attorney at Law

P. O. BOX 52942

McAllen, TX 78505-2942

 (956) 536-8800 TEL

 (956) 381-4269 FAX

 Email: amjr700@gmail.com

 /S/ Alfredo Morales, Jr.

 __________________________

 ALFREDO MORALES, JR.

 STATE BAR NO. 14417290
 CERTIFICATE OF COMPLIANCE 

 In accordance with Rule 9.4(i)(3) of the Texas Rules of Appellate

Procedure, and Ex Parte Walton, 422 S.W.3d 720 (Tex. Crim. App. 

2014), I, Alfredo Morales, Jr., court-appointed counsel of record for

Applicant, hereby certify that, relying on the word count of the computer

program used to prepare the Applicant’s objections herein, the document

contains 1,782 words.

 /S/ Alfredo Morales, Jr.

 __________________________ 

 ALFREDO MORALES, JR.
 CERTIFICATE OF SERVICE

 I, Alfredo Morales, Jr., hereby certify that a true and correct copy of the 

Applicant’s objections were sent via regular mail to the following respective

counsel of record on this the 25th day of May, 2015:

 Les Cassidy

 Attorney at Law

 814 Leopard Street

 Corpus Christi, TX 78401

 (Applicant’s trial counsel)

 James Odell

 Asst. Dist. Atty.

 Nueces County District Attorney’s Office

 901 Leopard Street, Room 206

 Corpus Christi, TX 78401

 

 /S/ Alfredo Morales, Jr. 

 __________________________

 ALFREDO MORALES, JR.