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

#192 3341

Mc Cbnnell Unit

3 0 01 S. Emily Dr :.;

Beeville, Texas 78102

Petitioner- PRO-Se

court of cmm appeals

OCT 23 2015

Abel Acosta, Clerk

FILED IN

COURT OF CRIMINAL APPEALS

OCT 23 2015

Abel Acosta, Clerk
LIST OF PARTIES

APPELLANTATTORNEY FDR APPELLANT

ATTORNEY FOR DIRECT APPEAL

PROSECUTORS STATE

(i)

3ULI0 TORRES PALOMO

DAVID"KETTH" UILLFORD

LINDEN'S UILLFORD

P.O. BOX 1 T

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

75401
Table 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 Con tin bus ^-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.3 8s0 72.

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 a n'@ 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 P 9 •1 5

(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,14 9S.w.3d 712 ,715(Tex.Crim.App.2004)-----

Cuyler V . Sull ivan ,466'U .S .335 ,348-50--; ------

Ex Parte Battle, 81 7S .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 ,51 4 ,51 9(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 .2d94 3 ,'946 (Tex . Crim .App .1 982 )

Ford V . State ,305S.W. 3d 530 ,533 (Tex .CT im••'. App'. 2009 )• ----

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

Garica V .State ,871 5 .w .2d279 (Tex .App;. EL 'Pasdl 994 ,rio ,pet .)-

GallegosU.State,756S.w.2d4 5, 4B'(Tex .App .-San Antonibl 988 ,pe t .ref Id

Gay. V.State,98S.w.2dB64,86 6(Tex.App.rWous. [1st .Dist .]1998)

Garza \l. State ,21 35 .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.3d9,1 3(Tex .Crim .App .2007) -"-

In Re Posada usa ine .,100S .w .3d254 ,259(Tex'.•App .San Aintonio2001.)

Oackson \J . Sta te ,443U .S .30 7., 319 (1 979 ) --: •••• • ---

]ackson \1. Uirginia ,776S. w .2d504 ,50-8 (Tex .Crim .App. 19'85)--- '

Johnson \1 .State ,304U .S.,45 B ,464 (1 938) -__..____.__ ---- '

Johnson \y.State,9 67S.w.2d410,41 7Tex .Crim. App .1998-----

Kyles U.Bhitley ,U.S.;4T9 ,437-38 ,1 1 5S .Ct .1 555(19950 :

Lankston \l .State ,827S .w ,2d'9'07 ,-91 1 (Tex .Crim .App .1 992) -----

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. 3d3 5'2 ,355 (Tex .Gri.m .App .20:0 2}:---

Monreal \]. STate ,94 7S .w .2d5 59 ,564 (Tex .Cr im .App .'1 9970

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

Payne U. State ,51 6S .w .2d675 ,677 (Tex .Crim. App .1 974) ~- — ----^

Saavedra U.State,297S.w.3d-342, 34 8(Tex .Crim. App..20 0-8)

Strickland V .Washington ,446.U .S .69 6 (1'9B4) -____--_

Thomas \l. State ,1 55S .w .3d1 40'7( Tex ';'A'pp.v;-Texarkana1:999 )''----:

United States \l .Bagley ;473U .S .667 ,1 OSS ,CT .3375 (1 9S0 )

Wiggins y .Smi th ,5 39U .S .51 0 ,521-22(2003) --^ __^_^

Yates W ..State ,941 S .w .2d357 ,364(Tex .App .-Wacol 997)

Statutes and Rule's

Tex . Pen.Code's 21 .02

Tex .Pen.Code S 21 .02(h)

fex: •; Discip'll nary 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 Am end mehts

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

con t

6Agg

Rami

7. A

of Ka

8.Ag

to:,c

9.Ag

Rami

I 0.

Appe

II .

Appe

1 2.

the

On S

are

in t

Just

than * '

0 n '" M

Appe

abus

Puni

not i

An a

arre

OnMa

tria

moti

llan

ult

ndec

geni

ndec

geni

ndec

ouch

ggra

r ez

ggra

act

ra va

re z

ggra

ry R

gra v

on ta

gra v

rez

Aggr

llan

aggr

llan

Inde

sexu

t wa

alle

ency

tal s

ency

t als

ency

:th e

va te

by A

va te

or c

ted

by a

vate

amir

ated

ct t

ated

by A

a vat

t to

avat

t to

cenc

al o

s i n d

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

con t

ed s e

con t

y wit

T g a n

uary 25,2013 for continuous sexual

of the, following acts:

xual contact by Appellant touching

icte

two

•ch i

ry R

chi

a r y

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

re z ;

y se

Appe

ult

al o

u 11-••'•

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

tact f..by ,causing. Kary Ramirez

ration of the anus of Kary

xual

llan

by p

r g ah

by A

ate

pen

org

by P

rgan

y ca

f Ap

y pe

org

by

of

bye

rgan

exua

ire z

con'

t;

ene t]

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

pell ant;

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 In t i t

ice for

2 5 year

-. . *'-.'.

arch 24,

1Iant pi

e of you

shment w

ce of ap

mended m

s t of j u

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).

2 014, 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 Err or F"i v 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 Rule s' 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

ma te ,

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

for en

er ; 1

comp

d Ev

lfnat

Scho

Past

Depa

"•) i

ez , w

Wot

outa

at t

day .

ne R

in te

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 Re gel ado, while riding the school bus home.

e told her mother ,Marib el Regelado,. who report's

ol Counselor, Deborah Floyd, with the support of

o't Carlos Mendoza. .••.'.

rtment of Family and Prd-tect ive -Service s (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 ter viewer ,a 1icensed peace office TV'*

On or about SeptemberT'B ,201 2 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 1 8 ,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, o 11'= r, + r, =„•= +„~+„A u „- with his penis. '' "' t r ial day)'

examiner examination and Forensic interveiw

FILED", against Appellant.

Appellant knew of the interview due to it 's ref erence-'' 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

1 vara

or F

d in

ts th

answe

the i

ha v

sk?

'd Id

abl

vie t

t ims

•''. R a

un v

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

if ie

Admi

and

aid

mine

The

chil

Grim

Clau

year

youn

ctorof HCCAC, Holly Robinson',

not recall receiving the subpoe

e been se vr-ed one•-.•.( emphsi s mine

to1d 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,

I s -mi'ne•)•'•.'see ,(RR-; 1 24)

done through -the use

var'ado•'( whbm' is- not

ourid reseacher whom

slation . "

at ion., Law Enforce- .

den ti-'aled;.or cer t'- <l '

II y , Ms. A1 a-v a 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

His pa

as no

s ic 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 ;

for ma1

terview

n ,by ah

ified q

o t h i ri t

(more 1

d e-o tap

t sine

Jazmln

y and

Ms . Ro

trial

Iph co

mploye

but a

ass ist

traini

ing ,no

y 11 ce

ue'stin

erview

ike ci

e o f th

e it ha

-Cos te 1

Kary Ra

bin son

court)'('

nducted

e CI a u d

cler k/b

in the

n g 1 n t

r is sh

nslng a

s' and a

er and

rcumven

e int

d bee

1 o :an

m i r z;-

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 interv ieiiier 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 respon s i.bi ty 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 complainant t' 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!»"distor ting.-" 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.3d 893,

912(Tex.Crim .App .2010) ; also, Jackson V.Vlrgina.at 443U .5.307 ,319

(1 979) . ..........

On review "direct and c ire urns tan tial-evdidence can.be treatedequallyV 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 aidi in th-ga Stages behalf".

(5)
Ultimately the modified circumstantial(Modification of ;Translatlation) evide-nce, especially those of cumulative' Lri ferenc'e s^i is- •

there no actual evdience should be Insufficient to support this

conviction, since there Is -no act ual'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 f or 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, stat erne-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 -is seies'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

pr epatrator',' 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 c onv i 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' off ice as a clerk whom happens to be '•

hispanic by birth, she has no other special 'qu.iliti.es to assist

Ms. Raplh in translat ion ,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 •f drmalCedu'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'pell ant ,no where in the record does it

indicate that this trial court "cert if ied ", 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-r te st imony 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 "every reason ',''. 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 .1 99B) ;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 qualific atlons(n.o ).

4. Whether action was taken to subsquently assure the translator

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

see, Saawdra V.5tate,29 7s.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 no tr'm,e:'t:•>' Accor din g 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 :1 57-1 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 Appealant)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. St ate,792s.w.2d BB(Tex.Crim.App. 1 990)

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 to a alleged

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 discern able manner,

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

No one question the skills of Ms .Alvarado,.as ifac 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 Def e

with ,

Garica

The t

Appeal

admitt

as it

Let i t

for Ms

to pro

en j oye

for tr

ndan

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 in

t ha

r der

ta te

c ou

ated

nd s

oneb

note

ph ,

a"n_

o 'j mo

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

i te

d fo

shou

ai'tr

righ

prep

s . w .

verr

or w

to

of t

r th

Id n

al I

t 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 sircu m~ve dted,distorted or misapplied

n personal benefit.

attempt by the state, to obtain a fair and

,1nterpr e'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.y sentence and conve Reverse and Remand for new trial.

ti v-e

s ow

no

tra'l

f as

do d

as

vard

o th

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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) ..-,.".-:;.-y v -.-;

' '-, •••• A "- " - "' '••' - '•• --'•- -"•' " '-"' :' "-

(10) .
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Standard 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 "re versatile 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,3 73 U.S. 87,;

U.S. V.Bagley ,473U.S. 667, 1 OSS .CT.3375(1990) .

State prosecution it's agen t 's( include HCC AC ),h ave 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 .UJ h i11 e y ,51 4 U .5 .419 ,4 37-3B ,

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.2 79,2B3(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, 941 s.w.2d||.7 ,364 (Tex .App .Waco" 1997) ; Payne V. State,51 6s.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(in slant 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 .AppVl 992) .

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 ma teiial,they are required to turn over all f,vidence that maybe

exculpatory, or have mitigating ting affects affects especilly espec upon request

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 ,1 ack of Brady material ,for -Ltrial, 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 g a1 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 .51 0 ,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 the Texas 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_5 04,

a duty to v; exert

based on correct

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!

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)

Respe cJbf.u lly

0|diL io Torres Palomo

T^D.E.0.#192 3341

^01C'§?^ilyU3i?

Beeville,Texas 78102
Cerificate 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#19 2 3341

Mc . Connell Unit

3001 S. Emily dr.

Beeville, Texas 78102