CA USE 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 105 TH JUDICIAL

DISTRICT COURT, NUECES COUNTY, TEXAS

_____________________________________________________________



## APP LICANT’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

CLERKTO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

f indings of fact, co nclusions of law, an d recommendation, and in support

t hereof would show the court as follows:

I.

PRELIMINARY STATEMENT

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

c ertified the findings and entered them into the minu tes of the court on May

1 3, 2015. On that same date

, th e findings were mailed to the undersigned

counsel. (The District Cler k ’ s Office envelope is postmarked May 1 3,

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

t he findings on May 1 6, 2015. R ule 73.4 of the Texas Rules of Appellate

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

findings. Accordingl y

, c ounsel is filing his objections within the time frame

provided by t he rules.

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

counsel rendered t he requisite e ffective assistance of counsel in this case. It

i s c lear that the trial court did not conduct a careful, studied e xamination of

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

reli ed exclusively on the St ate ’ s response

, even adopt ing the State ’ sproposed findings and con c lu s ions 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 F OLLOW

THE MANDATES SET F ORTH 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 approp riate the two

- step process outlined in Jones v. State,

98 S.W.3d 700 (T e x. Crim. App. 2003) : one, file a Pro Se Not ice o f Appeal

a nd file a contemporaneous Motion to Withdr aw as counsel of record.

That he (trail counsel) may hav e 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

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

l awyer ’ s responsibility a s trial counsel did not end upon the conclusion of

the revocation hearing

. R ather , 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 o f counsel in this regard

,

and the Applicant is entitled to an out

- of

- time appeal.III.

OBJECTION 2:

TRAIL COU NSEL FAILED TO PRESENT EVID ENCE AND ARGUE

THAT THE ALLEGED V ICTIM , NOT APPLICANT , WAS THE ONE

WHO HAD INITIATED THE CONTACT S

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

r esponded her constant texts. In fact, the evidence demonstrated that the

alle ged victim ha d, in fact, dele ted some of the texts so as to give the

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

att orney even conceded th is point in final argument and, even then,

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

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

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

his proba tion. More importantly, trial counsel should have argued that

,

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

question, th ere 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 a n appeals court held, for the first time, that texting

could be considered an “ electr onic communication ” under the statute.

Perone v. State, No. 14

- 12

- 00969

- CR (Tex. App.

– Houst on [14 th Dist.]

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

w hen taken together with the definition of electronic communications, theA ppeal ’ s court ’ s decision is quest iona ble.

Trial counsel rendered ineffective assistance of counsel on this point.

IV.

OBJECTION 3 :

TR IAL 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 advis ed and

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

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

home monitor ing fees, and child support paymen ts.

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 wor king 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 ineffe ctive assistance o f counsel on this point

.

V

. OBJECTION 4:

TRIAL COU NSEL FAILED TO OBJECT OT THE STATE ’ S EXHIBIT

WHICH CONTAINED THE OFFENDING TEXT MESSAGES

The State presented only one e xhibi t to support its allegati on that

Applicant had contacted the alleged victim in violation of the s t atute and thet erms and condition s of his probation. State ’ s counsel, without setting the

p roper predicate, merely tendered the exhib i t to the witness, who

immediately bega n testi f

ying 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 formall y

introduced as evidence

, a s the State suggests, is of no moment . It was

considered hearsay evidence u ntil such time as all of the formalities were

met. Th e Texas Rules of Evidence apply at revocation hearing s. Ex Parte

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

Trial counsel rendered ineffective assistance of counsel on this point.

VI.

OBJE C TION 5:

TRIAL COUNSEL FAILED TO REQUEST FO R A CONTINUANCE

IN ORDER TO ADE QUATELY PREPARE FOR THE HEA R ING

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,

rec ognizing that counsel was not total ly prepared , all o wed counsel to review

t he State ’ s exhibit by calling for a brief recess in the proceedings. By having

requ e sted a continuance, trial counsel would have been able to secure the

witnesses he need ed to cast doubt on the alleged vi c tim ’ s credibil ity, 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 thecourt ’ 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

Beca use Applicant had not yet been convicted on the underlying offense

be cause of his deferred adjudicated status, trial counsel c ould have filed a

pre

- tr ial writ of h abeas corpus in order to challenge the Applicant ’ s

content ions that his guilty plea was involuntary and that his sentence for the

stated offense was harsh and disproporti onate 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 (T e x. Crim. App. 2001). Tria l counsel failed to preser ve 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 FA ILED TO OBJECT TO EXTRANEOUS

OFFENSES ALL U DED TO BY THE ALLEGED VICTIM

At the punishm ent phase of the hea r ing , the alleged victim referred to

s evera l extraneous events about abuse she had suffered at the hands of theApplicant: 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 th e

Texas Syndicate , a violent Texas prison gang.

Since all of these matters were nothing more than character

- conformity

eviden c e, a ll 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 o f evidence, is with ou t merit. A

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

State, 891 S.W.2d 22 (Tex. App.

– Ft. Worth 1995) . Therefore, the Texas

Code of Crimi nal Code p ro v ision s do not control. Moreover, contrary to the

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

with out legal merit. The lang uage 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 finding s that trial counsel did

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

.

X.

PRAYER

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

f indings and c onclusions are erroneous , both in fact and law, and that his

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

court is unab le to make a decision with the information forwar d ed by the

t rial court, then the Applicant would request t hat the court remand the writ to

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

more fully develop the allegations

, and th i s court can then make the

a ppropriate disposition o f the Applicant ’ s requested relief

.

R espectfully Submitted

,

A lfredo Morales, Jr.

A ttorney at Law

P. O. BOX 529 42

M cAllen , 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. 14417290CERTIFIC ATE 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 r ecord for

App licant , hereby certify t hat, relying on the word count of the c omputer

program used to prepare the App licant’s o bjections herein, the document

contains 1,782 w ords.

/S/ Alfredo Morales, Jr.

__________________________ ALFREDO MORALES, JR.CERTIFICATE OF SERVICE

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

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

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

Les Cassidy

Att o r ney at Law

814 Leopard Street

Corpus Christi, TX 78401

(Applicant ’ s trial cou nsel)

James Odell

Asst. Dist. Atty.

Nueces County District Atto rney ’ s Office

901 Leopard Stree t

, Room 206

Corpus Christi, TX 78401

/S/ Alfredo Morales, Jr.

__________________________ ALFREDO MORALES, JR.