# Motion for Rehearing No. WR-58,474-02 IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN



### Ex parte Alberto Rodriguez

Applicant On Petition for Post-Conviction Writ of Habeas Corpus Pursuant to Article 11.07 § 3, et seq ., C.Cr.P., in Case No. 700071 in the

178th District Court of Harris County

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS: COMES NOW, Alberto Rodriguez, Applicant, by and through David A. Schulman and John G. Jasuta, his undersigned attorneys of record, and respectfully files this motion for rehearing, and would show the Court: Procedural History On April 5, 2011, Applicant filed his second application for post-conviction writ of habeas corpus , alleging that: (1) the juvenile and trial courts lacked jurisdiction due to inadequate service in the juvenile certification proceeding; (2) trial counsel rendered ineffective assistance; and, (3) appellate counsel rendered ineffective assistance. WR-58,474-02 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/30/2015 4:38:57 PM Accepted 7/1/2015 8:10:31 AM

ABEL ACOSTA CLERKThe State submitted a proposed order designating issues on April 25, 2011. The habeas court ti m ely entered its order designating issues on May 19, 2012. On September 21, 2012, the habeas court conducted an evid en t iary hearing on Applicant’s allegation of a jurisdictional defect. During that hearing, the parties submitted a set of agreed facts. Ap plicant submitted his proposed findings of fact an d conclusions of law on October 2 5, 2012. The State did not submit its p ro p o sed findings and conclusions u ntil December 23, 2013 (HCR 125). Applicant filed objections to the S t at e’ s proposed findings on February 3, 2014 (HCR 181). On June 23, 2014, the habeas cou rt adopted the statement of agreed facts s ub mitted by the parties during the hearing conducted on September 21, 2012; m ade its own findings of f act and conclusions of l aw; and u ltimately recommended that this Court grant relief o n Applicant’s first and third grounds for relief, and deny relief on Applicant’s second ground (HCR 189).

2On June 17, 2015, this Court issued its o p inio n . E x parte Rodriguez, _____ S.W.3d

_____ (Tex.Cr.App. WR-58,474-02; June 17, 2015). Applicant would respectfully s how the C ourt that it has placed a burden on juvenile defendants and practitioners that has

n ever previously b een found in t he law, and has reached t h e wrong result. Additionally, the Court failed to address Applicant’s third ground for relief. 

### Arguments in Favor of Reconsideration In its June 17th o pinion, the Court correctly r eci t es the f act that t he summons to the certification hearing of August 1, 1995,

was served afer the fact of the hearing and did n o t refer to any

o t h er date. The Court correctly states that no record from t h ese hearings exist. N evertheless, the Court s tates that the certif ic at i o n issue was tried, without there being any support for that assertion in the habeas

record. Ultimately, however, the Court’s decision rests o n the unspoken premise that the facts in this c ase show that t he service

was essentially proper with only a “defect,” or two. This unspoken

3ruling is neither supported by t he law nor the facts, and flies in the face of decades of contrary case law. The Court’s ruling acknowledges that t he law o f th e ar ea of

m i n or s and waivers of their rights with regard to juvenile proceedings was well d efined, and yet the Court ignores those very

cases. The Court wr o t e, “we and o u r sister court have also held that t he juvenile cannot waive the service of the summons for the transfer hearing, even if the juvenile attends the transfer hearing. These holdings are in accordance with the c ommon-law rule t hat

a minor d o es not possess the legal capacity to waive service of summons, nor can anyone waive it f or h i m . ” Rodriguez , slip op. at 6. Service versus Defect In Service An important part of the Court’s ruling is a r e-writing of the law to hold that the failure to c omp ly wi th the absolute requirements of Family C ode § 5 4.02, such a s the requirement for servi ce two days before the hearing, can be a mere defect of the

m ech anics of s ervice instead of an abrogation o f a s tatu t o r y requirement. Rodriguez , slip op . at 8. When taking this “about

4face,” the C ourt ignores both its own h o ldings and t hose of its sist er C ourt, the Supreme Court of Texas, both of which have routinely held that a d evi at ion from the statutory requirements deprived the juvenile court o f personal jurisd i ct i on over the juvenile. The facts of this or any other case are immutable. The law in ef f ect at the time o f an offense, should, similarly, be immu tab l e. Between the time of the offense and the day immediately prior to the Court’s June 17th opinion, the law was likewise immutable, and correctly interpreted by the habeas court, but no more. The failu r e t o properly s erve Applicant, as admitted by the State and t his Court, and as d emonstrated in the record and found by t h e convicting / habeas c ourt, deprived the juvenile

co u rt of jurisdiction from that point onward. The juvenile court did not have the power to hold court on Tuesday, August 1, 1995 (“Tuesday”), without proper, and timely, service, and this did not, and could not, have happened. Any order which this C o urt might

care to add to the list of its s peculations as an action which might h ave “continued” the hearing u ntil Friday, August 4, 1995

5(“Friday”), would have b een worthless, because it would have been entered without any jurisdiction. In essence, there was no hearing to continue. This is not a c ase of proper service, as t he timing was a part of that equation, and the summons involved was not timely served. There was never a hearing on Tuesday because Applicant was not served with service complying with the statutory requirement of two days notice, and the summons which was untimely served on Tuesday did not and could not serve as notice to a Friday hearing. Moreover, there is no showing of any o t h er service of notice o f a hearing to be held on Friday. The defect was not in the failure to

serve the “notice” until almost two hours after t he “ hearing” commenced, it was in the failure to give the required two d ay s of notice. The habeas c ourt’s findings and reco m men dation c orrectly view the law in effect , t he failures of the State in effecting j u risdiction over the juvenile, and the c onsequences of th o se failures u nder the law. Those findings are supported by both the l aw an d the facts and, according to its own long standin g

6precedents, this Court should accept them and not re-write both history and the facts to reach a contrary result. The Burden The Court holds that an applicant, in o rder to ob t ain relief from a “defect of service” on collateral attack, the record must affirmatively show the absence of j u ri sd i ction. The Court then neglects both t h e ex i sting case law and the facts in deciding the question and, specifically as to this case, creates an insu rm ountable burden, heretofore unknown in the law. That there is n o r eco r d which can be produced by either Applicant or the State is, in e ffect, being held against Applicant despite the f act that the making, and keeping, of t hat record was ent i r ely out of his hands -- and that Applicant raised the “no jurisdiction” claim at issue in this (“-02”) application years earlier, in his “-01” application. That the C ourts or the State, either of which c ould have easily secured t he r ecord when Applicant’s “-01” application was f i r st presented, are not assigned any burden or responsibility whatsoever is clear. Given that the Court used the misplacement

7of the r ecor d as the basis for denying relief, it is unclear why the Court has placed the burden entirely on the one person who had

no control over the record, when it was the State and its agencies who exercised control over the record, and who had the earlier opportunity to produce the record. While requiring t he record t o affirmatively show lack of jurisdiction, the C ourt igno res the facts of t he case, when it fails to acknowledge that any service which was had, defective or not,

was insufficient under the case law to confer j urisdiction over Appellant in the juvenile court. The record affirmatively shows the lack of jurisdiction under the law an d n o where in that r ecord is there any showing t o contradict or alter that status. Th e Court admits as much in the opinion. By any measure of the law p rior to the Court’s June 17th opinion, Applicant has met his burden. By failing to properly address the f ailure of the service it admits was inadequate to confer jurisdiction, and the failure of the State to properly maintain records it was required to maintain, the Court ignores its duty to respect the law and the facts. To require Applicant to prove the negative, that the Stat e d i d not at some

8point between T uesday and Friday, proper ly s erve Applicant in such a manner as t o acquire jurisdiction, a literal impossibility, or that h e p roperly waived service of proper and binding summons service by re-labeling the defect such that a minor would be capable of understanding the difference and make a proper waiver, is an abdication of the Court’s duty to the law. Instead of the record, upon which reliance cannot be had due to no f ault of Applicant whatsoever, the Court relies not only on a complete abandonment of t he law of service on a juvenile, but on rank conjecture. While service of the summons was defective, applicant might have waived any defect in service on the record at t he hearin g o n either August 1 or August 4, and the reporter’s record showing a waiver may no l onger exist. Rodriguez, slip op. at 12 (emphases added). Any s uch waiver had to meet s tri ct guidelines under F amily C o d e § 51.09, which this Court seemingly accepts, t he memorialization of which was entirely the duty of the State and its agencies. Nevertheless, this Court rejects any r equirement of a record except as maintained by Applicant, and faults Applicant for not being able to produce t hat record to prove the negative, all in one surmi se, wi t hout one f act

9upon which to rely. This Court is not applying the proven facts to the law, as did the habeas c ourt. It is, instead , ap p lying conjecture to r e -written law in an effort to deny the requirements of the law in existence at the time. The Court completes its journey through fancy with its statement, The possibi l it

y exi s t s t h at a pp l i c ant w a s s erved during the August 1 hearing and waived t

he lateness of service on the record at that time. The more likely scenario, h o w e v e r, appears to be a waiver on August 4, given the do cket-sheet entry for that date that any further notice was waived by respondent. This entry may relate to a waiver on the record at the August 4 hearing of defects in service. Rodriguez, s lip o p. at 13. These three sentences expose the very basis of the Court’s decision as nothing more than speculation. Th e C o urt states that the Tuesday, August 1 hearing was reset, Rodriguez , slip op. at 13, but this does not accurately state the record, nor do es it accurately state t he law. 1 The event of Tuesday, August 1 , 1995, a proceeding without jurisdiction under the law, has not been shown on the r ecord t o have been reset. Rather, it was terminated so that proper service of summons could be had. Succinctly stated, under the law as stated in the petition

1 This also seems to be contradictory to f ootnote 50, Rodriguez , slip op. at 14- 15, which states that the record does not estab l i sh why the hearing was rescheduled. 1 0and t h e briefs before t his Court, there was ineffective service of

summons as t o the August 1 event; that attempt d i d n o t give notice as to August 1, there is no record “reset” o f t h e August 1 hearing until August 4 -- even if there was a valid hearing to reset

-- and the record does not sh o w any service whatsoever to the hearing on August 4, 1995. By i t s f ailure to grapple with the failure of any attempted service t o comply with the requirements of the law, and the failure of the r ecord to show any proper invocation of jurisdiction over Applicant, the Court's attempt t o avoid t he law by mis-characterizing the mistakes as m ere d efects in the service ignores the law. Instead , the C o u rt p laces the burden on the Ap p lic ant t o p r e serve a possibly non-existent re c o rd o f p ro c e e d ings which were required by statute to be on the r ecord, and to demonstrate that t he record would not show that which never happened, pr o p e r s ervice of summons or proper waiver of such service.

1 1There is truly no way the Applicant can demonstrate that the speculation engaged in by this Court is false, speculation in which the Court engages after rejecting Applicant’s own speculation: This surmise on applicant’s part is not sufficient to affirmatively show that a proper waiver did not take p lace. Even with a waiver, the juvenile c ourt may have thought it prudent to satisfy the two-day notice r ule by delaying the h earing to August 4, or applicant or his attorney may h ave insisted on the two days as a condition of executing th e waiver. Or the hearing may have b een rescheduled to August 4 for reasons unrelated to the lateness of service. Rodriguez, slip op. at 14. The bottom line is that everyone is speculating b ecause the record cannot be p roduced, n ei t h er by Applicant nor the State. Perhaps t he Court should s pecu late as to whether, had the State made an effort to find the record when this c ontention was first raised in the “-01” application, and at a time when the State had both an opportunity and duty t o respond, and prior to this C ourt’s dism i ssal of that application and the jurisdictional issue, the record would have been now been available. The State, of course failed in its duty to respond in detail to Applicant’s “-01” application, the habeas court failed to ensure a complete record adequately s upporting its recommendation to deny r elief accompanied that recommendation, an d this Court 1 2chose to dismiss on a procedural point eschewing timely resolution of an allegation questioning the jurisdiction o f the Court of conviction. I f either the State or t he habeas c ourt had done its duty under the law at the time o f the “-01” writ application, speculation might not be necessary, as t he record would b e in the Archives. Instead, Applicant is made to pay for t hose failures, over which he had no control. The Court’s o pinion of June 17th is rife with speculation and

a s s u m p t io n, a s we l l a s m is p lac e m e nt and m isunders t and ing o f t he burden placed o n Applicant. It was not he who was in c harge of the record, which t he Court speculates was produced, 2 but it is he who must su f

f er . This despite his sworn statements that there

was no servi ce and that he made no waiver. Only by producing the record, over which Applican t h as no power, and which the State cannot produce despite its duty to preserve t hat record, can Applicant overcome the sp eculation in which the Court engages.

2 See Rodriguez , slip op. at 14 (FN 47). 1 3The Co u rt h as truly set an impossible burden and, in s o doing, has itself denied Applicant due process of the law. 3 The Court has held that the findings and recommendations of t he habeas court should be accepted when they are s upported by the law an d f

acts d eveloped. Ex parte Navarijo , 433 S.W.3d 558, 567 (Tex.Cr.App. 2014); Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex.Cr.App. 2014). It is t rue that when an independent review of the record reveals that the t rial judge's fi n d ings and conclusions are not supported by the record, the Court may exercise its authority to m ake contrary or alternative findings and

3 Compare t he burden imposed in this case with the outcome h ad t h e jurisdictional issue been properly raised on appeal and any p art of the record, including the juvenile certification hearing, “gone m issing” at the time of that direct appeal. The Court, citing to Dunn v. State , 733 S.W.2d 212 (Tex.Cr.App. 1987), wrote: It has long been the rule in this State that " [w]hen an appellant, through no fault of his own or his counsel's, is deprived of a part of the statement of facts which he diligently requested, the appellate court cannot affirm th e conviction. Austell v. State , 638 S.W.2d 888, 890 (Tex.Cr.App. 1982). See also Gamble v. State , 590 S.W.2d 507 (Tex.Cr.App. 1979); Timmons , supra , at 512; Pierson v. State , 147 Tex.Crim. R ., 177 S.W.2d 9 7 5, 976 (1944); Navarro v . S t at e , 141 Tex.Crim. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing); and now also T ex.R.App.Pro.Rules 210(a) and 50(e). Further, this rule has been applied whether all or only a portion of the statement of facts w as omitted. See Au stell , supra (voir dire examination); Gamble , supra (final arguments durin g guilt and punishment before the jury); and, Hartgraves v. State , 374 S.W.2d 888, 890 (Tex.Cr.App. 1964) (hearing on motion for new trial). Harris v. State , 790 S.W.2d 568, 574 (Tex.Cr.App. 1989). 1 4conclusions. Ex parte Reed , 271 S.W.3 d 6 9 8 , 727 (Tex. Crim. App. 2008). In the p resent case, the habeas co u rt ’s findings are

c o m pletely supported by the habeas rec o rd d eve lo p e d by Ap p lic ant and the State. Only by re-writing the facts to amend the record to encompass rank speculation can t he Court reject those findings. Unfortunately, the Court has done just that. The habeas c ourt heard the facts over a protracted period of time and, after due c onsider at i on of the law and the facts, and

wit ho u t re s o rt t o any s p e cu lat io n what s o eve r , f o u nd t hat Ap p lic ant

was never served with summons, that the juvenile court lacked jurisdiction, and that Applicant is entitl ed to relief. Only by rejecting the f

acts as found, only by r ejecting the law as it was in effect and re-writing it t o fit the situation at hand, an d o n ly by engaging in absolute speculation about what might have been, can the Court’s opinion be validated.

The Opinion Is Incomplete The Court’s opinion of June 1 7th disposes o f Appli can t ’s jurisdictional arguments by re-casting the failure of summons as

a “defect in service,” as opposed to a failure of service. The point,

1 5not having been raised on direct appeal, was treated as a collateral attack and the ru les altered with regard to the review. The Court, in so d oing, avoided the third allegation raised by Applicant in his application, for which the habeas court had recommended relief be granted. The Court’s action, however, demonstrates the truth both of the thir d allegation and the habeas court’s recommendation to grant relief on that ground. In that allegation Applicant contended that his appellate counsel was d eficient for failing to raise, as a point of er r or on direct appeal, t h e j uvenile and t rial c ourts' lack o f jurisdiction. Applicant extensively argued the juvenile and trial courts' lack of jurisdiction in the instant applicat i o n and supporting memorandum under his first ground for review and referred to th ose p oints in the third ground for r eview, alleging ineffective assistance of appellate counsel for this very failure. The facts establishing this point of error are clearly reflected i n th e record and were available to appellate counsel on direct appeal. Further, appellate co u n sel would have been p ermitted, under the law, t o raise this point of error o n direct appeal, despite

1 6the fact that it concerned a transfer f rom juvenile court. See In the Matter of D.D. , 938 S.W.2d172, 1 74 (Tex.App. - Fort Worth 1996), wherein t he Court o f Appeals discusses the applicability of Article 44.47(d), C .Cr.P. The lack of a record would have had very different ramifications, none of which would have s ubjected Applicant to a requirement that he pr o d uce t hat record or waive his error. Those rules which require a timely and specific ob j ection, motion, or complaint, do not apply to “absolute systemic

r equirements,” and failures of jurisdiction of the person an d jurisdiction of the subject matters are such errors do not require

an objection. See Alrich v. S tate , 104 S.W.3d 8 90, 8 9 5 (Tex.Cr.App.2003), ci t i n g Marin v. State , 851 S.W.2d 275, 280 (Tex.Cr.App.1993). The third alleg ation raised within the application, and for which the habeas court recommended relief, discussed prejudice,

even p ri o r to this Court’s opinion in this c ase which absolutely establishes the prejudice. W hile it cou l d formerly have been argued that appellate counsel’s f ai lur e to raise a jurisdictional

1 7error, i.e., one which can be raised at any time, even during habeas review, demonstrated that counsel’s f ailure was harmless due to the lack of waiver, that argument c an n o l o n g er be supported. The harm flowing from the ineffective assi st ance of ap p el l at e counsel is easily s een in the r eflection of this Court’s opinion. Following this Court’s opinion, it is cl ear that appellate counsel’s failure condemned Applicant to a life of incarceration. But for appellate counsel’s error in failing to raise jurisdictional g r o u n d s on appeal, there is a reasonable probability that the appellate court would have vacated t he judgment and rem anded the case to juvenile court. See Light v. State , 9 93 S

. W. 2 d 7 40, 750 (Tex.App - Austin 1999). The Court’s opinion of June 1 7th makes it abundantly clear that t he failure t o raise the jurisdictional issue, which this Court plainly r ecognizes, in a t imely m anner r esulted in rejection of the claim on habeas corpus . In doing so, this Court has accepted t hat harm flowed from c ounsel’s failure. This Court should r e-hear the case, in a complete mann er , and dispose of e ach of the habeas

1 8court’s bases for its r ecommendation to grant relief. The f ailure to do so denies Applicant a full and complete r eview of the application he filed a s well as the rulings, findings and recommendation o f the habeas court, and, in so d o ing, denies Applicant due process of law. 

### Conclusion The habeas court’s findings and conclusi o n s are more t han adequately supported by the r ecord, u nless one re-writes both the law and the facts to include speculat ion, and imposes an impossible burden on the Applicant. The habeas c ourt’s findings

an d r ecommendation do not rely on the placement of an impossible burden o n the Applicant of proving a negative by production of a record in the care of the State which the State admits it cannot produce. The habeas court’s findings rely on the record produced during t he habeas proceedings during which the State had ample opportunity to r ebut t h e swo rn allegation of Applicant, and they should be followed. Additionally, the habeas court’s r ecommendation to g r ant relief is still before the Court without resolution, albeit acceptance

1 9of the allegation of ineffective assistance o f counsel. This Court should r ehear and/or reconsider the m erits of the case and fully consider all of the bases for the habeas court’s recommendation to grant relief. 

### Prayer WHEREFORE, PREMISES CONSIDERED, Applicant and the undersigned respectfully pray t hat the Court will r econsider its action of June 17, 2015, vacate it s wr i tt en Opinion of that date, and accord Applicant the relief recommended by the habeas court and which the habeas record reflects is appropriate. Respectfully submitted,

_ _ _ _ _ _ _ _ _ _ _ _ ___________________ John G. Jasuta Attorney at Law lawyer1@johngjasuta.com State Bar No. 10592300 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David A. Schulman Attorney at Law zdrdavida@davidschulman.com State Bar Card No. 17833400 1801 East 51st Street, Suite 365-474 Austin, Texas 78767-0783 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Alberto Rodriguez

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### Certificate of Compliance and Delivery

This is to certify that: (1) this docu m ent, created using WordPerfectTM X7 software, contains 3,836 words, excluding those item s permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex . R.App.Pro.; and (2) on June 30, 2015, a true and correct copy of t he above and foregoing “Mot i on for Rehearing” was transmitted to Lori DeAngelo ( deangelo_lori@dao.hctx.net ), c ounsel o f record for the State of Texas, via the eService function on the State’s eFiling portal.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ John G. Jasuta

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