# HX.5-15

CAUSE N0:PD-0425-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ZIULIO TORRES PALOMO V. STATE OF TEXAS 

# ORIGINAL

ON APPEAL FROM THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF' TEXAS AT TEXARKANA ' AND ON APPE'AL FROM THE 196th JUDICIAL DISTRICT COURT 

### OF HUNT COUNTY, TEXAS TRIAL NO. 28777"
BRIEF FOR PETITION FOR DISCRETIONARY REUIEL)

3ULI0 TORRES PALOMO #1923341 Mc Cbnnell Unit



### 3 0 01 S. Emily Dr:.; Beeville, Texas 78102 Petitioner- PRO-Se 

# court ofcmmappeals OCT23 2015 Abel Acosta, Clerk 

# FILEDIN 

# COURTOFCRIMINALAPPEALS OCT232015 AbelAcosta,ClerkLIST OF PARTIES
APPELLANTATTORNEY FDR APPELLANT

ATTORNEY FOR DIRECT APPEAL

PROSECUTORS STATE

(i) 3ULI0 TORRES PALOMO

DAVID"KETTH" UILLFORD LINDEN'S UILLFORD P.O. BOX 1T Greenville, Texas '; "•• 75401

CARIANN ABRAMSON P.O. BOX 1683 Forney, Texas 75126

KELI AIKEN ASSISTANT DISTRICT 

### ATTORNEY(af- trial)
GEORGE'CALVAN ' GROGON ASSISTANT DISTRICT ATTORNEY(at trial)
NOBLE D'. WALKER DISTRICT ATTORNEY



### (ON APPEAL) Hunt County District Attorney's Office 2507 Lee Street Greenville, Texas 75401Table of'Contents Index of Authorities pg.iv-v, Statement of the Case pg.1&2. Issuses Presented pg . 2 . Statement of Facts • p g . 3 &4 .,< 

### Argument pg .5-14, Point of Error One pg.-5. 

### Insufficient Proof of Appellant Committing Continous Sexual Assault on Nancy Ramirez: Poiratof Error Two- pg.6. 

### Insufficient Proof of Appellant Committing Continbus^-Se.xual Assault on Kary Ramirez: Point of Error Three pg.6. 

### Nancy Ramirez statements are inadmissible under the outcry 

### exception rule when the translator did not accureterly trans late the questions& answers to/of the Forensic interviewer who 

### testified as the outcry witness whmo was actually a third party witness under Texas 'Code of Criminal Procedure art.38.072 and 

### eligible to testifiy as original outcry witness Ms.Claudia Alavrado is the first person over the age of 1B years 

### to be told of the alleged incident. The trial court abuse it's discretion when it allowed Ms.Charlene Ralph who Is officially a Forensic Interviewer to testify u'dder the Hearsay Rule pursuant to T.C.C.P.art.38s072. Point of Error Four pg.6. 

### Nancy Ramirez& Kary Ramirez statements are inadmissible under the outcry exception when the translator Claudia Alavardo did 

### not accrately translate the statements(qliesti-on & Answers)of the Forensic Interviewer who testified as the outcry witness. Point of Error Five pg.10. 

### Appellant was prejudiced by the trial's court's failer to appoint New Trial Counsel when conflict of interest arose under discip 

### linary rules about Trial counsel and Appellant, see, State Bar Rules of Texas "Ethical Consideration on Code of Professional Responsibility", EC7-8. Point of Error Six . P9-11 

### Appellant is entitled to New Trial because the State, through it's Child Advocacy Center, faied to provide mitigating or exculpatory material after requested by appellant on numerous occasions. Point of Error Seven pg.13. 

### Appellant was deprived of his sixth amendment rights of effective a s s i s t an'@e of counsel because defense counsel: 

### A:Alloued Appellant to file a sworn statement of his criminal history(without proper investigation of all the facts, a minitrial duty) that resulted in a perjury charge indictment and which thus created a conflict of interest.

(ii)

### (see Texas Bar Rules of Lawyer Profession Conduct). B: Attorney failed to request a continuance when state's agent 

### Hunt County Child Advocacy Center failed to produce requested 

### mitigating evidence and/or- exculpatory material reqested several times ,which finally became apparent at trial. 

### Prayer . pg.14 Certificate of serviee

_ P9-1 5 Unsworn Declation P9•15

(iii)Index of Authority

Cases: 

### Anderson \l
. State, 159S.w.3d 102-03 

### Bone V . State, 77S.W. 3d 828,835(Tex.Crim. App. 2002) 

### Brooks U.State ,323S.W.3d 893 ,912(Tex.Crim .App. 2010)- Brady \l
. Maryland, 373 U.S.B7 , 83S.CT .1194---

--- 

### Cassidy V.State,149S.w.3d 712 ,715(Tex.Crim.App.2004)----- Cuyler V. Sullivan ,466'U.S .335 ,348-50--;

------ 

### Ex Parte Battle, 817S .w .BT ,88(Tex .Crim .App .1 991)--'

— -- 

### Ex Parte Briggs, 1B7S.w.3d 458 ,469(Tex. Crim.App.2005)--- Ex Parte Duffy, 607 S .w .2d:"'507,514 ,519(Tex. Crim .App .1980) Ex Parte Felton,8T5 S .w .733 ,735-36'CTex.Crim.App .1991 ) ExParte Martinez, 330S .w .3dB91 ,900(Tex.Crim.App.201T) ExParte Uilborn,724S.w.2d 391, 393(Tex.Crim.App .1990)

-- Ex Parte Wilson,7245.w.2d72,74(Tex. Crim. App.1987)--; Ex Parte Ybarra,629S.w .2d943,'946(Tex. Crim.App.1982 ) Ford V . State ,305S.W. 3d 530 ,533 (Tex .CTim••'.App'. 2009)•

---- Garica y .State ,792S .w.2dB8(Tex.Crim,.App'•.T9 99 )

----- --- Garica V .State ,8715.w .2d279(Tex .App;.EL 'Pasdl994 ,rio ,pet .)- GallegosU.State,756S.w.2d45,4B'(Tex.App .-San Antonibl 988 ,pe t .refId 

### Gay. V.State,98S.w.2dB64,866(Tex.App.rWous. [1st .Dist .]1998) Garza \l.State ,2135 .w .3d'33'B,34 7(Tex.Crim.App .2007) 

### Hernandez V.State,7265.w.2d53,57,61 (Tex.Crim.App.1986)^-- . 

## Hardy V.State,246S.w.3d290,296 Tex.App.-Houst.114th.Dist.]2008) Hooper V/.State,2T4S.w.3d9,13(Tex.Crim.App.2007) -"- 

### In Re Posada usa ine .,100S .w .3d254 ,259(Tex'.•App.San Aintonio2001.) Oackson \J
. State ,443U.S .307., 319(1979 ) --: •••• • --- 

### ]ackson \1. Uirginia,776S.w .2d504 ,50-8(Tex.Crim.App. 19'85)--- ' Johnson \1
.State ,304U.S.,45B ,464(1938) -__..____.__---- ' Johnson \y.State,967S.w.2d410,41 7Tex.Crim. App .1998----- 

### Kyles U.Bhitley,U.S.;4T9 ,437-38,11 5S .Ct .1 555(19950 : Lankston \l.State,827S .w,2d'9'07,-911 (Tex.Crim.App.1992)

----- L ong \l.St ate ,B00S .w .2d54 5 ,54 7

_^U' 

### Montgomery V.State,B105,w.2d372,380(Tex.Grim.App.2002)^ Mo till a U.State,78S.w. 3d35'2 ,355(Tex.Gri.m.App.20:02}:--- Monreal \].STate ,94 7S .w .2d559 ,564(Tex .Crim.App.'19970 

### Moussazadeh \l.State ,361S.w.3d6B5,689(TeX.Crim.App.201'2)

-- Payne U.State ,516S.w.2d675 ,677(Tex.Crim.App .1974) ~-— ----^ 

### Saavedra U.State,297S.w.3d-342, 348(Tex.Crim.App..200-8) Strickland V .Washington,446.U.S .69 6(1'9B4) -____--_ 

### Thomas \l.State ,1 55S .w .3d140'7(Tex';'A'pp.v;-Texarkana1:999)''----: United States \l.Bagley;473U.S.667,1OSS ,CT .3375(19S0 ) Wiggins y.Smith ,5 39U .S .51 0 ,521-22(2003) --^ __^_^ Yates W..State,941 S.w.2d357 ,364(Tex.App.-Wacol997)

Statutes and Rule's Tex .Pen.Code's 21 .02 Tex .Pen.Code S 21 .02(h) 

### fex:•;Discip'llnary R. Prof Conduct Rule 1 .06(b)(2)

(iv).Tex.Code Crim. Proc. Art. 38.072 

### Tex.Code Crim. Proc. Art.38.072 § 2(a)(3) Tex. R.App. P.44.2(b) Constitutional Amendmehts U.S. Const. Amend .\l,VI ,XIV.

(v)To The Honorable Court of Appeals Now comes Appellant, Julio Torres Palomo, and submits this Petition for Discretiony Review on Appeal from a conviction 

### for alleged continuous, sexual assualt of a young child(ren) in the 196th Judicial District court of Hunt County,Texas, The Honorable Steve R. Title jr., Judge Presiding.

•Statement of Case Appe
assa 1 . I the 2. I the 3;-i to t 4-.:A Rami 5 . A cont 6Agg Rami 7. A ofKa 8.Ag to:,c 9.Ag Rami I 0. Appe II . Appe 1 2. the
On S

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arre OnMa tria motillan ult ndec geni ndec geni ndec ouch ggra
r ez ggra act

rava
re z ggra ry R grav onta grav
rez Aggr llan aggr llan Inde

sexut wa alle ency tal s ency t als ency :the vate by A
vate

or c ted by a vate amir ated ct t ated by A
avat t to avat t to

cenc al os i nd ging

with of Ka

with of, K with geni d sex ppell d sex ontac
sexua ppell d sex ez by

sexu he se

sexu ppell ed se

cont ed s e

cont y wit T g a n uary 25,2013 for continuous sexual of the, following acts: xual contact by Appellant touching icte two

•chi ry R

chi a ry

chi ta'ls ual ant ual t an 1 as ant ' ual

app al a xual al a ant ' xual act xual act h ch of N Jan

ore y se ez ; y se rez ; y se Appe ult al o u11-••'• n e t r t by xual ult nt o It b an d It b xual aul t

anus ult al o by s

Ram d on
or m Id b amir Id b Rani Id ' b

of

assa
sexu
assa d pe s aul

s se
assa el la

ssau

org
ssau
s se

ass the

ass
sexu ild ancy 

### xual'.contact: by Appellant touching
tactf..by ,causing. Kary Ramirez ration of the anus of Kary xual llan by p r gah by A ate

pen org by P rgan y ca f Ap y pe

org by of bye rgan
exua irez con' t; enet] ppellantls sexual Organ to •; •••''''•- anus of Kary Ramirez; etratlon of the anus of Nancy
an ; enetra'tiofl "of the sexual org^an

i using the mouth of Nancy Ramirez pellant; netra'tion of the mouth of Nancy an;- '':-. causing the s-e-xual organ of Nancy Ramirez ; ausing the sexual organ of.



### of Nancy Ramirez and/or. 1 contact by Appellant touching
eptember a first he Int i t ice for

2 5 year

-. . *'-.'. arch 24, 1Iant pi e of you shment w ce of ap mended m 

### s t of ju y2B,2014 1 and to on for n 

### 1 2010, Tex. Pen. Code''§:'".21\ 02:, the alleged offenses degree felonies that are punishable by confinement utional Division of the Texas Depatment of Criminal Life, or any term of not more than' 99 years or less 

### s. Se.e, Tex. Pen .Code |§ 21.02(h).

2014, Jury trial proceedings began . ' 

### ead not guilty to the charge of continuous se-xual 

### ng child(ern) as charged>!ih" the' indictment. as assessed by the Jury on April 1 20.14 at' Life, peal was filed on a motion for new trial. 

### otion for hew trial-on punishment and a motion in 

### dgment was filed on May 28, 2014.

the trial court heard Appellant's motion for new 

### ok it under advisement, but ultimately denied the ew trial on June10,2014.

(1)Issues Presented Point of Error One Insufficient proof of Appellant committing continuous sexual! assault of Nancy Ramirez. Point of Error Two 

### Insufficient proof of Appellant committing continuous sexual assault of Kary Ramirez. Point of Error Three 

### Nancy Ramirez statements are inadmissible under the outcry '.-.•'••' 

### exception when the translator did not accuraterly translate the question and anwers to/of the Foresic interviewer who made 

### testified as the outcry witness who was actually ,third party witness under Tex. Code of Crim .Proc . art . 3 8 .072 and not 

### eligible to testify as original outcry witness. Claudia Alvarado was the first person over the age of 18 years to be told of the alleged incident. Trial court abuse it's diseretion when it allowed Hunt County 

### Child Advocacy Center(hereinafter''HCCAC) . 

### Charlene Ralph who is officially a FoTesic Interviewer to testify under the hearsay exception pursuant to art. 38.072 of Tex.Code of Crimial Procedure.
Point of Error Four Nancy Ramirez statements are Inadmissible under the outcry 

### exception when the translator Claudia AlVarado did not accurately 

### translate the statements (questions&answers)to the foresic interviewer whom testified as the outcry wi t n e ss. Point of Error F"iv e • 

### Appellant was prejuiced- by Trial Court's: failure to-appoint 'new 

### Trial counsel (defense) when a conflict of interest1 arose under 

### disciplinary rules between Trial Counsel and Appellant. See, State Bar Rules' of -Tex ."Ethical Considerations of Profess-- 

### ional Responsibility',' EC, 7-8.
Point of Error ;5ix Appellant is entitled to a new Trial because the State,through 

### it's Child Advocacy Center, failed to provide mitigating or exculpatory evidence material after' requested by Appellant on' numerous occasions. Point of Error Seven 

### Appellant was deprived of his sixth am.endment right to effective Assistance of Counsel because defense counsel:' 

### (A): Allowed Appellant to file a sworn statement of fact concern ing his criminal..record(uiithoijt proper investigtion of all facts, simply a minstrial duty) that resulted in agrave error, which (2) .

### thus created a conflict of interest. See,Tex.Bar Rules of Lawyer Professional Conduct). 

## (B) : Attorney failed to- request mitgating' or Exculpatory material already requsted several times, which finally became apparent at trial .
Statement- of facts
On Se daugh mate , this it to Marib The T after 

### Kary to th Ms .Ai condu folio Ms . C alleg Ms .CI Dept .
resea
as a ptemb ter ,

name schoo :the el ' s

exas ) "CPS Ramir e CPS sha C cted wing harle ally audia

as a rcher forener ;1 comp d Ev lfnat Scho Past Depa "•) i ez , w

Wot outa at t day . ne R inte

ATv "..lay

,she sic 

### 7, 2012,' it is alle-ged that Appellant's biolgical 1 ain tant Nancy Ramirez-, made an outcry to a schoolelyn Regelado, while riding the school bus home. 

### e told her mother ,Maribel Regelado,. who report's ol Counselor, Deborah Floyd, with the support of o't Carlos Mendoza. .••.'. 

### rtment of Family and Prd-tective

-Services (herein•-•"" 

### s called,however, neither complaintant Nancy or 

### h'b is the step daugther of Appellant•'"', make outcry kers . 

### in with CPS aranges for a forensic interview- to be 

### he Hunt County Child Advocacy Center (HCCAC) the alph' is a Forensic Interviewer with the HCCAC which 

### rviews both .girls through a bi-lingu-al interpreter arado, wh;om -works .for the Hunt County Sheriff 's -person whom does clerk work as a back ground



### is not trained, certifed, licensed,or educated in terviewer ,a 1icensed peace officeTV'* 

## On or about SeptemberT'B,2012 it's alleged complaintant NancyRamirez made an outcry to Charlene Ralph during a Forensic ••<- 

## interview .through Claudia Alvarado ,of having touched the ; Appellant's penis and vaginal penetration. 

### Complaintant Kary Ramirez did not make an outcry of on September 18 ,2012 . 

### On October 17, 2012 or about, it's alleged a _.„,,.. ,^^..o^.. 

## interview was set up for alleged Compliantant Kary Ramirez with Cladia Alvarado as translator in which compliantant Kary Ramirez allegally made an outcry that Appellant touched her chest, butt, and vaginal area with his hands,.she is alleging to touched his neniR.anH allpnal-lw Ar,r,o11'=r,+ r,=„•=+„~+„A u„- with his penis. '' "' t rial day)'

examiner examination and Forensic interveiw 

### FILED", against Appellant. Appellant knew of the interview due to it 's reference-'' in the 

### CPS reports, but no police report was provided nor was the video of theTForensic interview .turned- over to the--Appellant,' until the day of his trial.' 

### Multiple request- were made by Defense for the video. The state 

## attemped to retieve the video from It's' a^ent',-HCCAC informed

- the state the video did not exist. 

### It was not until Forensic interviewer Charlene Ralph with the 

### HCCAC(state Agent)was on the stand testifying in the instant

(3) any abuse
second Forensic

### That the 2008 video' was located in the file Ms. Ralph brougt it to the trial' court In Re: Nancy and- Kary Ramrlez.
Dire did 201:4

she could er de he di

been inal r vie of Ms t was inter

Hunt
cense ens t 1vara

or F d in ts th

answe the i hav sk? 'd Id

abl viet t ims •''. R a

unv veiw

Cou d Pe o be do h

oren tran at s red nter The that she on h If s have orig

newe ion as i The of a a li 

### happ Ms .A ment ifie Admi and aid mine The chil Grim Clau year youn 

### ctorof HCCAC, Holly Robinson', not recall receiving the subpoe 

### e been sevr-ed one•-.•.(emphsis mineto1d the trial court na , but,.-did not deny 

### )and it got loat erview., she would not n removed from the d .pl.an-ced' in the ••-•"-•' 

### which was' in-'' posses^-- 

### ware' of this 'much, Is -mi'ne•)•'•.'see ,(RR-;1 24)

done through -the use var'ado•'(whbm' is- not ourid reseacher whom slation . " ation., Law Enforce- . denti-'aled;.or cert'-<l ' IIy, Ms. A1a-va r d o s that were asked ian'tants' in order to



### issuses), emphsis i':--' ok for e to 1 ims -fi

file 

### lph,(l eiled s that nty Sh ace-Of

Hispa

as no sic in slatio he mod from b view . t h e v I ocate i le for', of Nanc t seems' at the

Ms . Ra eriff E 

### ficer , n i c )t o; forma1 terview n ,by ah ified q o t h irit (more 1de-otap t sine Jazmln y and

Ms .Ro trial Iph co mploye but a ass ist traini 

### ing ,no y 11ce ue'stin erview ike ci e of th e it ha

-Coste1 Kary Ra binson court)'(' nducted e CIa u d clerk/b

in the n g 1n t r is sh nslng a s' and a er and
rcumvene int d bee 1 o :an mi rz;-
was a emphs

' were la Al aokgr

tran ransl

e ere uthor

n s w e r compl t the 

### state's "Notice, of intent to introduce outcry', statement of 

### d abuse complaint-'s pursuant to art. 38.072 Tex. Code of inal Proc. filed for Charlene Ralph(sould have been for dia Alvarado ) as shewas the first person over the- of 18 

### s to be given notice/outcry of sexual abuse of Complaintant's ger than 14 years of age), see, T.C.C-.P. art.38.072. It is recorded both complant's refered(spoke to) Claufla Alvarado whom in-turn refered to Forensic intervieiiier Charlene Ralph, 

### only there were many misquotes,circumvented questions and answers as Ms. Alavarado stated"She modified question and answers in order to aid'the interview" unquote. 

### Ms.Alavardo ;cliams on record"She is hot Technically qualified to interview the allg'ed victims of child abuse". 

### Prior to trial, Appellant Is said, to h'ave executed a' swore state 

### ment he was eligible for 'probation(community' supervision)at the urgencies, of his Defense Attorney, which was prepared by him, 

### notarized by his staff. This statement is said was among other filings. The state thus filed"Aggravated Perjury charges" on 

### the Appellant, as he was"not eligible for probation" . As lead to believe by his Defense counsel, due to- a prior convlc-'- t i o n . 

### The trial, counsel filed a motion to with draw as Attorney of record; 'wanting no responsi.bity for his error.. 

### Trial counsel argued on his behalf -he must be a"Fact -Witn-e-es" for the state on the new indictment against his client1. 

### The state' g ave further notice it would use this .new charge as an exterous offense. To add further injury, Trial court denied 

### Trial Counsel's request to withdraw from/as Attorney of record.

(4)ARGUM'ENT.

' Pibnt'of Error One 

### Insufficient proof Appellant committed continuous Sexual Assault on Nancy Ramirez. Piont of Error Two 

### Insufficient proof Appellant committed continuous Sexual Assault on Kary Ramirez. 

### Evidence must show more than a mere modicum of proof on the 

### elements of actual sexual, abuse. Appellant presents points of error One & Two together since they are based on a common nexus of fact and.Law. 

### During trial, both complainantt' s , Nancy& Kary Ramierz-, testified via close circuit. The outcry witness is said to be Charlene 

### Ralph and not Claudia Alvarado for both cdmplianarit 's . 

## Ms. Raplh testifed that Nancy Ramirez touched Appellant 's penis with her hand and some part of the'Appellant's body touched her

- vagina. 

### Nancy Ramirez herself did not

-testify

- before the jury that ..•' 

## Appellant's penis touched her vagina, she did testify that her mouth touched Appellant's penisvand that Appellant touchher vagina. (Although no' specifics) . 

### Ms.Raplh slso testified that Kary touched Appellant1's penis, 

## that his penis penetrated- her a-hus and -vagina, (or is this Ms. Alvarado's distorted, no wait, Ms. Alvarado's "modificaton"of 

### the questtions and answers to aid the interviewv'" for"the state. 

## Kary Ramirez' did testify the Appellant' touched her vagina"- with his hand,"but did not,penetrate it with his penis./. (RR. :7-63-1 32) Who's lying,Who!»"distorting.-"the-'-truth?
Standard of Review 

### IriTexas, the' Jackson•V. Virlnia, standard- is the only standard that a reviewing court should that a reviewirig court should apply in determining whether evidence is sufficient':to- support the elements of a criminal -offense, the state is required- to prove 

### "beyond a.reasonable doubt"'. See, Brooks v. 51ate,323s.w.3d893, 

### 912(Tex.Crim.App .2010) ; also, Jackson V.Vlrgina.at 443U.5.307 ,319 (1979) . .......... On review"direct and cireurnstantial-evdidence can.be treated

## equallyV that circumstantial can be sufficient to establish guilt. See, Hooper v. State, 214s.w.3d 9,13(Tex.Crim .App.2007) . A conclusion must reached on a certain degree of•speculaton 

### which cannot be unreasonable in an ordinary sense , but a matter 

## of Law. speculation

- along, cannot/should not be treated/tested solely based on "Heresay Trans1-ation',' which claims to' have been "Modified to aidiinth-gaStages behalf".
(5)

### Ultimately the modified circumstantial(Modification of ;Translat

## lation) evide-nce, especially those of cumulative' Lriferenc'es^iis

- • there no actual evdience should be Insufficient to support this conviction, since there Is
-no actual'evidence- probative of any element but a mere modicum piece of evidence which does -not up 

### to a mere preponderence of evidence needed .to sustain a rightful conviction. Therefore, it 's conclusively established that the • state failed to meet it's burden of proof. It is therefore asked 

### that this conviction and sentence thereby,be set-aside, in alternative , Reverse and Remand for a-new itrial;';-'-- ' '' '--:«..•••?• 

### Point of Error fn-e(restated) 

### Iriuffieient proof of Appellant continuous sexual assault on Nancy Ramirez. •-' -. 

### It is said that neither Ms. Raplh nor Nancy(said cOmplal'ntant)

- 

### testified about alleged acts 6 or 10,- which claimed Appellant's penis made contact or penetraton 'of the anus of Nancy Ramirez . 

## (see. RR.7:10-63;RR.9:85-104) . There is an implication(no proof) that Appellant perils"may have" 

## (conjucture) contacted the anus or.the vagina of complaint Nancy Ramirez. For these reasons,this Honorable court should-sustain 

### point of error one and aquit this Appellant . In'- alternative reverse and remand with instruction. 

### Point of ErrorTwo('res't-ated) 

### Insfficent proof of Appellant continuous sexual assault on Kary Ramirez . 

### It is said neither Ms.. Raplh(allaged outcry witness) nor Nancy Ramirez testifed to act one of alleged touching of the anus of Kary Ramirez. Itis also said on record that act seven was, • ' 

### also abandoned by the state for "lack of proof',' during the trial For these reasons,this Honor court should sustain -error Two. Point of error Three 

### It is said that Nancy Ramirez statements are inadmissible 'under the outcry expection'"rule due to the translation is an inaccu-'. • 

### rate one, as the translator"modified" the'- actual ,!|'questions"; and answers) to aid in the interview for the state.' - . 

### Ms. Alvarado, not Ms. Ralph is the first person over the. age of 

### !8 years of age the complainants told of the allaged sexual abuse . 

### Can a minor child in Texas have authority to give consent to a 

### third party(alleged outcry witness) to' testify, on h:er behalf? Point of Error Four 

### To the point of redundence, Kary Ramirez1, staterne-nts are inadm 

### issible under the outcry exception rule -whenp the trans-la'te>r 

## did not/had not accurately translated the question and answers yet admitted that''-'she- madifid^the

-isseies'sto "aid lri'the; interview for the state'.' 

## P;y::tsw of statue 38.072 T.C.C.P. "outcry witness"shall be the

(6)

### first person(does not make an exception for translation), shall be the first person over the- age of 1 8 years of age ,.besides the 

### prepatrator',' Ms.Alavaradd being the first person as the statute <?' is clear and makes "no excp'ectlon"because- of the language barrier 

### Ms. Alvarado did not testify on the the behalf of either Nancy or 

### Kary Ramirez, as did Ms'. Ralph,which becomes hearsay with no 

### exceptions, but inadmissible of Legislature intent ,an d the.-' 

### Therefore, Appellants' point of error four, should be sustained. Arrest the judgment of the convi c t ion.-. Additional Facts 

### It is said, that during all of the interviews relating to" this. case, Forensic interviewer Charlene Ralph"only spoke english1.' 

### Nancy & Kary Ramirez are Spanish speaking individuals, Spanish 

### being their primary language(purpose of translator)'I Ms. Raplh Forensic interviewer- for Hunt County Child Advocacy Center (HCCAC')used Claudia Al'avardo whom is employed with the 

### Hunt County Sheriff 's' office as a clerk whom happens to be '• hispanic by birth, she has no other special 'qu.iliti.es to assist Ms. Raplh in translation ,if complaints are- bi-lingual as alleged•••

... why the translator,? 

### The state offered Ms.Raplh as an outcry witness under T.C.C.P. 

### art .3B.072(defense counsel did not object to preserve error) another claim for constructive ineffective •assistance of counsel 

### in/of a long list ,(emphsis mine),which perj'ustlee my trial. Ms. Alvarado stated on her accord that' she has no •fdrmalCedu'eat^"-- 

### ion,training or qualifications as a'-bi-i-'-l'lngual translator and 

### had to modifiy the' questions & answers to aid the Interview forthe state. Thus- denying Appellant a fair trial, to add further injury and harm to Ap'pellant ,no where in the record does it indicate that this trial court"certified", Ms .Alvarado as an.-•-. 

### "exp-ert""qualified to interprete in/of a Forensic interview in an alleged child abuse:-case. 

### Let the record reflict a', misinterpretation video was also i,'.';::'.''' 

### admitted,which prejudice this Appellant. Ms. Alvarado neither translated properly,, but' also modified' the .-questions & answers of all parties involved in instant case. ' • 

### Ms.Raplh supposely asked complaint's open-ended que st ion s,somenon-leading questions which brought back modified answers and half-truths or no' truth at all 'as Ms'. Alvarado "-modified-answers 

### and questions to aid in the interview for 'the state. 

### With Ms. Alvarado's own-rte stimony to the jury she answered she mislead the jury by explaining that she'substantially expounded on what was asked by Ms. Raplh to make sure that Nancy & Kary understood what was being a'ske'd'. Standard of.Review; 

### An"Error"of this great magnitude affects a "substantial right and injustice of this Appellant.especially;when an Appellant has been denied a fair and just trial which affected the outcome 

### of the verdict, see, King V. State,953s.w.2d266-271 (Tex.Crim.App. 1997). (7)Application of Facts Translation Statements 

### - of Law It is said "Translated Statement" are admissible"-so long as the 

### statement quality under the hearsay rule exception;1' 

### It is clear that Ms. Raplh does not speak Spanish, therefore 

### not eligible underthe hearsay rule exception T.C.C. P.1 art. 38.072 Ms.Alavarado had "everyreason',''.motive ,to misle/ad or distort and? make inaccurate translation she is a low—level clerk employee 

### by the Hunt Count Sheriff's office with"No Eduaction"in/of trans lation skills,, and totally not qualified ,-to '(be an expert trans- ,. 

### l@tar~she herself admits"she had to modifly the translation"..', qialified experts "do not modify1.' To'aidv the interveiw. Ms.Alvarado has admitted several times on record she is not 

## qualifed, not educated, licensed or certifed in•spanis'h'/english translation of Law. Ms. Alvarado has self 'admitted, she is ,-, 

### sometimes requested to translate for the ;Hunt County Shelff's 

## office,also that she takes liberties .with the translation?, 

## which can only serve to injure the dependent and cause perjudice.' Because whatever to whomever was said was taken as fact which 

### only serve to negitively influence., distort and mislead the jury and perjudice the out-come of this trial, see, Jonhson V.State , 

## 967s.w.2d410,417(TeX.Crim. App.199B) ;Motiila V. State, 78s.w.3d 352,355 (Tex. Crim. App.2000). also Cassidy V.State,149 s.w. 3d 712(Tex.Crim.App.2004) . 

### Toconsider admissibility of a translated statement, Four factors mustbemet: 

## 1. which party supplied the interpeter?(HCCAC&Sheriff dept.) 2.whether interpeter had motive to mislead or distort, yes. 

### 3.AssesS interpeters qualificatlons(n.o). 4. Whether action was taken to subsquently assure the translator 

## was consistent with questins &'answers being translated. (no) . 

## see, Saawdra V.5tate,297s.w.3d342,34B (Tex. Crim.App.200B) . Application of Facts' 

### Outcry Hearsay Exception It is said that Child Forensic interviewers are not norally 

### admissible ,due to the"Hearsay Rule'.' However.,when it meets the requirements(this applicatin does not) which is an abuse of 11.-: 

### Discreetion 'hv the trial court, as the Fourpabdve requirements 

## were notr'm,e:'t:•>'According to T.C.C.P. art. 38.072,"the first person over the a'ge'of 18 years was not Ms.Raplh but Ms. Alvarado. The chain of out cry goes like this: "Nancy Ramirez first told her friend&schoolmate Eyelyn Regelado, whom tells- her mother 

## Maribel Regelado.whmo tells her pastor Carlos Mendoza,togther they report it to the School Counselor, Debra Floyd, whom decides to call the Texas Depart, of Family and Protective services(here after known as "CPS") Neither complaintant Nancy 

## or Kary Ramirez tells-; or reports this allaged inciid-nt(makes out

cry )to CPS investigator, Aisha Coutain, Therfori,Ms. Coutain

arranges with HCC'AC to have the girls the following day, u..

(B).

### At which point Ms. Raplh met with the girls the following day at the HuntCounty Sheriff's Office so she could provide a 

### interpEeter whom speaks spanish/english, Ms.Alvarado took the call,and made herself available. It is alleged complainant's made a statement in a discernible 

### manner alleging a sexual offense(or did they, reason doubt) 

## or did Ms.Alvardo misunderstand? it has already been determined that Ms. Alavardo took liberties with the translatins. see, (RR.9 :157-1 58) . Ms.Alavardo knew what -was at stake for herself and the Hunt 

### County Sheiffls Office. Ms.Alvarado kfieiils'tfiereRthere was a possiftle promotion for a job well done(conviction of the Appeal

## ant)she had gygry thing tq^gain and notingto lose by distorting the facts misleading the jury"taking liberties of the true 

### facts','distorting(complainant's)answers by her own admissions under oath, see, Garcia V. State,792s.w.2d BB(Tex.Crim.App.1990) and Tex.Code Crim. Proc. art.38.07282(a)(3). 

### T.C.C.P. art. 3B.072 suspends the hearsay rule and allows what's commonly refered to as "outcry" to testify on the behalf of childern of sexual abuse. ^"Provisions of this statute include 

### notice and hearsay requirement's" are mandantory and must be complied with in order for the the statue to be admissible over 

### the hearsay o-bjection(state' 'did not meet the requirements) . 

### see, Long V . St ate ,BBOsi^w.2d 545 ,547(Tex.Crim. App.1990); Gay V.State, 9Bs.w.3d 864,866 Tex.APP.Hous. [1st .Dist .] 199Bpet. ref'd.) 

### The Defendent must be given notice of content and scope. ID. Statement to be more then a mere allus|on in general toaalleged 

### sexual abuse, general allusions are vague and arbitrary, see, 

### Thomas V.State, 155s .w .3d138 .140 (Tex.APP. Texarkanal999,pet. Ref'd.) Notice- must describe offense in discernable manner, 

### see,Garcia V.State,792s.w.2d88,91 Tex.Crim.Apo .1990) . 

### No one question the skills of Ms.Alvarado,.asifac r.Sourt certified Interpreter, this court did not go through Ms.Raplh's credent ial's either to demonsrate the importance of how tointerview 

### a child of sexual abuse, and the significance of a-'s'king openedended questions. However,Ms.Alvardo on a number of occassions self adimitted she took"liberties" with the translation onher 

### own accord, thereby nullifying and undermining the Law and the 

## standards of the statdtessofft.C.C.P. art.3B.072 and the total significance of the Foernsic interview there canbbe no assurance 

### that this jury or anyone else this Appelant was tia-mie-d by Ms. 

## Alavrado's modified translations. hMt^ied It's on record that Appellant objected tPtfthe Spanish portion of the video being admitted on the grounds that it was not transcribed when offered by the state, which violates statue, 

### of T.C.C.P. art. 3B.072 which clearly states"Defendant must be givemi adquent notice of the content and scope", to prevent violation of Due Process of the Fifth & Fourteenth amendment

of the United States Constitution.

(9)A Defe with , Garica

The t Appeal admitt as it Let i t for Ms to pro en joye for trndan in 0 

### ftv.s rial s st ed a
was

be .Ral vide d " N n ansl The inabil 

### impartial , Appellant that Ms.Al neutral pa statue Ms . 

### default, d of the all 

### had they t have neede The testim lated stat outside th admission For these 0 f?.e r'ror T viction int ha r der ta te

c ou ated nd s oneb note ph ,

a"n_

o 'jmo ator ity ,

neu b-rT'l'e

vara rty

Ala ue t eged he a d an ony
emen e he lays fact hree

alt s a to ,792 rt o

err hown ite d fo shou ai'trrigh prep
s . w .
verr
or w

to of t r th Id n al It to know,to be informed what he's charged are for an affirmative defense, see. 

### 2d88 ,91 (Tex.Crim. App.1990). uled the objection, the Sixth Court of as "not presevred frfr viewing',' video was the jury, which prejudiced the verdict, h e p o i s o n a p p 1 e . e record that Ms.Alvarado's translation 

### pt have been admitted as the state failed 

### interpreter','to Assure the "outcry" statement "t o be sircum~vedted,distorted or misapplied n personal benefit. attempt by the state, to obtain a fair and 

### ,1nterpre't-e rei(:see tfo o tn o te (3 ) of the original 

### it states on pg. 29 of44) If this cqux.t finds id not had,not acted in the capacity of a 

### argued in points of error one & twq, ,th en by o becomes the "outcry" and not Ms.Raplh by e fact'that both Nancy & Kary Ramirez spoke 

### ident only in Spanish directly to Ms. Alvarado, 

### ty to speak to Ms.Raplh she could/would not erpreter to understand. 

### oth Nancy & Kary Ramirez the modified transo Ms.Raplh is actually third party hearsay 

### y exception rule.and harfn1 displayed of this the bolster of the girls testimony, d admissions this court should sustain points



### Four, arrest, the judgment.ysentence and conve Reverse and Remand for new trial. tiv-e
s ow

no tra'l f as do d

as vard o th

inc bili

int of b ts t

arsa

in

s an

and erti
Point of Error Five Appellant was perjudiced by continued appointment of counsel 

### and trial failure to appoint new counsel when their was a confict of interest under disciplinary rules ofthe State Bar 

### bewteen Appellant counsel and Defendant. Additional Facts 

### Defense trial counsel had Defendent sign a sworn application 

### in request for cBmmurtiity supervision in which Appellant was not 

### eligible,trial counsel should/could have maed the effort to 

### assure self and client about eligibility as it would simply a 

### mini'sfbrial duty as it's attorneys duty to investigate all the issuses pertaining to his/her clients.
Standard of Review 

### Once the Attorney finds themselfs in confict with a client, 

### they shouid withdraw from representipn immediately the court shall than permit Attorney to withdraw so the court can assure 

## the Defendent a fair trial, see,In Re Posada USA Inc. inQs.UJ.3d 

## 254 at2.59(Tex.App. San Antonio 2001 pet.granted) ..-,.".-:;.-yv -.-;

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— ex X cr EL C H3 0) •H U fH Dl 01 01 ra rH P • ro fH 01 Tl cn fH 0) CJ 01 QJ 4- tu 3 XI ex 4- *— o to X t- a (-1 X 4- <P X 0) EL -P o 01 3 QJ EL 3 err M X CO c SZ X -P X 4- rH C tn x a sz C CO 3 X CJ X X PH r— tr a: 01 3 o CD c U i— = u EL u a o tn c cr •H •rH X tn Fh CC ZT CO p- X tu X-H -p -p •H -p o C0 -H _Z P b_ h- CO X Q 3 3: P- -PStandard of Review 

### The"Brady Rule" doe:s-.(lot. differ from "suppression of the evid-t: ence by the state or it's agents, it simply states "All" exculpatory evidence shall be made available to the Defense otherwise it violates the Fifth&Fourteenth Amendments of the 

### United States Constitution, Due Process, where evidence is mater ial;',of guilt/inno.qence or punishment, irrespective of good faith or bad of the prosection. see, Brady V.Maryland,373 U.S. 

### B7, B3 S.CT.1194. A full and complete disclosure by the state it's agents is.necessary to avoid Sri unfair trial. 

### Also see, T.C.C;-'P. art.2.01 "not to convict, but to see justice is done'.' A prosecutor shall not suppress evidence or secrete 

### witnesses, capable of establishing the innocence of the accused, "quote from:Texas District and County Attorney's Association. Brady and Bagley ,supra , Provide it's a "reversatile error"when: 

### Tl the state/it's agents fail to disclose exculpatory evidence regardless of procution 's good or bad inteltions. 2: withheld evidence that is favorable to the- defense. 

### 3: evidence which is material,there is a reasonable probability had the evidence been disclosed the outcome of the trial would 

### have come out different, see, Brady V. Maryland,373 U.S. 87,; U.S. V.Bagley ,473U.S. 667, 1OSS .CT.3375(1990) . 

### State prosecution it's agent's(include HCC AC),have a duty to of Brady evidenee ,known to others acting for the state's behalf in a particular- 'case, see, Ky 1 e s V .UJh i11e y ,514 U .5.419 ,437-3B , 115S.CT;1555(1995). 

### The state It's agents have a duty to produce recordings of 

### interviews ,videos, should they contain ex.Gulpatory/mitigating materials. This Appellant filed motion requesting the production 

## of any recordings w.|ich secures a ruling by the- court as production materials see, Garica V.State,B71s.w.279,2B3(Tex.App.-El Paso 1994) A continuance, once Brady material is disclosed at trial a defendent is assured adquate protection of Due Process, see, 

# Mates,941s.w.2d||.7,364(Tex.App.Waco"1997) ;Payne V. State,516s.w. -2d'675,677 (TEX.Crim. App.1974). "NO MIGIC WORDS'^',' are needed to ask for a continuance, see, Ford V. State,305 s.w. 3d533 TEX.Crim. App.2009. An objection(inslant case)is considered in 

### content in which the complaint was made and the partie's share 

### an understanding of the complaint at the time, see, Lankston V. State,B27s.w.2d907,911 (Tex . Crim .AppVl992) . Application of Facts 

## Although it's alleged that HCCAC is a neutral party. They are for all practicle purposes an agent for the state as 

## they collect evidence at direction Df!;^ Enforcement for the sole benefit of the state prosection, although it may be a direct arm of the state (funding must come from the state or other 

## federal agencies to function), as for the purposes of Brady teiial,they are required to turn over all f,vidence that maybe ma 

### ting affects especilly upon request

exculpatory, or have mitigating affects espec 

### b^ the state or subpoena from the Defense. Id

(12)

### Defense requested an opportunity for an expert to review Oazmin Costello's video, trial court denied request for a continuenceor expert witness. 

### Had alleged complainant's video been timely released in accord 

### ance with statue, this Appellant could/would have showen a fab rication which was/is the crux of this Defense. 

### Defense counsel had to/forced to change his Legal strategy, due to denial to denial to withdrawal ,1ack of Brady material ,for -L

### trial, and cross-examination ,denial continuance,other mitigation factors. Appellant was still incapable of getting a fair trial.

2:Failed to request a dontinuence when Brady material was 

### finally became apparent at trial.
Standard of review Under the Sixth Amendment the Fourteen Amendment of the United 

### States Contitution, all Defendent's are entitled to"reason able" assistance of counsel, see,U.S. Confct. Amend.6&14th. 

### StrictlandV. Maryland,466U.S..696(1984) ;HendersonV.State , 726s .w.2d53 ,57-61 (Tex.Crim.App .1986) . L e ga1 Background 

### A lawyer must havea firm command on the facts thier case. The govering laws before he can ren effective assistance of counsel. 

### May the record reflict greatly in this respect. 

### Duffy,607s.w.2d507,514n.14,519(Tex.Crim.App.198 Trial counsel has an.obligation to his client t reasonable attempt at investigation every fact As one never knows which fact may just be the o 

## y'rjfr case. Is it not better to safe than soory This is only a ministrial that will only take a 

### LJigginsV.Smith, 539U .S .510 ,521 -22 (200 3 ) ; Ex Par s.w.3d 458,469 (Tex.Crim. App.2005). Trial counsel can make the decision to limit hi 

### Although it cheapens his obligation to his die the attorney's ethics code, "Can it really be as 

### it would/could be wasteful to fully investigate 

### No investigation can be said to be wasteful,as know all of the facts then to surprized by the 

### In, according to theTexas Rules of bar: "A defe 

### right to effective assistence of counsel which 

### less than making affirmative decision based on which are personal to the client, see,Ex parte and issues of der reasonable see,Ex. parte 0). o make a of every case. ne to make 

### later^

second, see, te Briggs,1B7


### s investigatioj, nt and violates certained that %'i,the issues . it is better to unknown . ndent has a include but no correct information 

### Martinez,330s.w . 

### 3d 891,900 (Tex.CRIM.App.2011 ) ; Jackson V.State 50B(Tex.Crim.App.19B5). The Defense counsel has his efforts to ensure his client decisions are information about the law. 

### ,766s.w.2d_504, a duty tov;exert based on correct

(13).ing on ot be ) . see y this in a r 

### lly as er . Wh ed by ndent ing to al of allega ere sp peak f

.App.2 11ant rial .

demon 430(Te

revie ble tr Andrew 

## ""IrJpeT ons fa t the his 'ip'l Caus cap mine Surl act ntia futh jugd. defe know deni All
on m to s Crim Appe at t tive 

### 425, This
sona see . This acti Is i for client Irto be

parte to CO in ei LJ11s o ld not nable

his c r tria terms cted o

cl ien s tantie

must ation. t ' s s have reliab lient 1 coun of the

n a ne 

### t , if

of CO be fir

The t elf. smmit ther 

### n_, 72 been le a to s s el

rep w ch this

unse mly his ee ,B aggra of th 5s . w . 2

compt nd adv tay ou

was re 

### resr|nt arget'o

does 1 , the rooted instan one V .vate ier d72 , Bnt ersi t of

ason ion . f ag not re i

in ce I

Stad pe best 74 ( advi al m

jai able

Thi gava show sn ' t the

' 11 te,7

### rjury certainly 

### interest(emphsis Tex. Crim.App .1987) . 

### se. Alawyer frjus.t give
anner and substa1 not commit then

effective is thus s counsel had this ted perjury unbea construtive any. recordyand not base allow the record 

### 75s.w.3d82B,B35(Tex. said

, Ex

cou
e aso sist ethe

^\ the indi

the ass i 

### tipfei, ecu! or i 007)

can Tria srat x.Cr w of ial 

# f_1'&9. lant 11 w
norm ientnot b 1 cou ion f 

### im .Ap

tria strat s . w . 3

cour ithin

for , I cegin t nsel ' s or the p.2007 1 coun egy co d102-0 t sure

the n Defens ertaino jus 

### 'ride f i

reco ). sel p uld j 3. ly ca
orms
e cou ly pr

### tify the trial counsel's motives cienpy's alone are an affirmrd.See.Mata V.State, 226s.w.3d
erform ustify
n<pers of eff nsel it, ay notance will show that no r e a^ counsel's performance.

ume that defense counsel's ective represention. o obtain a new indictment !
Conclusion 

### For these and other reasons,this court should sustain all points, of error and arrest and vacate this conviction,sentence. In alternative this Honorable court should reverse and remand, for a new trial. Prayer 

### Wherefore all premises considered,this Appellant prays to almighty God, before this Honorable court, htat it shall sus 

### tain all points of error, one,two, three ,four, five, six, seven. To include but no less than constructive denial of 

### assistance of counsel at a very critical point of my trial. May this Honoable court grant relief and arrest and vacate 

### the Judgment,conviction,sentence,in alternative, Appellant, further prays for any and all other relief this A 

### Appellant may be entitled too. So,';hel*pr,-me' .God ! Executed on thisig day of October 2015.

(14) 

### RespecJbf.ully 

## 0|diLio Torres Palomo 

## T^D.E.0.#1923341 

# ^01C'§?^ilyU3i? Beeville,Texas 78102Cerificate of Sevice 

### I hearby certify to mailing a copyof this Petition foi Discretionary Review to the Appellant Divison of The Hunt County District Attorney's Office at 2507 Lee Street, Greenville, Texas 75403-0041.

Executed on this 19th , day of October 201 5. 

### respectfully submitted 

# fiiJmr^

orres Palomo T.D.C.0.#1923341 Mc.Connell Unit 

### 3001 S. Emily dr. Beeville, Texas 78102

Unsworn Declaration


### I, Juilo Torres Palomo, T.D.C.0.# 1923341, hereby declare 

### urjder the penalties of perjury that I am presently inconfinement at the William G. Mc.Connell Unit at 3001 S. Emily dr. 

### Beeville ,Texas 78102. Ifurther declare that facts and state ments are true and correct to the best of my knowlegde and fact 

### so help me God. Amen.

Executed on this19 day of 0ctgber2015

(15). Palomo T. D.C.Oj#1923341 Mc . Connell Unit 

### 3001 S. Emily dr. Beeville, Texas 78102