JOSE GONZALES 111,

Petitioner/

THE STATE OF TEXSS/

Appellee.

IN THE

(

COURT OF CRIMINAL APPEALS

OF TEXAS

PETITION FOR DISCRETIONARY REVIEW

FROM THE COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CAUSE NO. 13-13-00011-CR.

COURT OF CRIMINALappeals

AUG 05 2015

Abe) Acosta, Clerk

ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS

PAGE NO

TABLE OF CONTENTS I.

INDEX OF AUTHORITIES II-IV.

STATEMENT REGARDING ORAL ARGUMENT Vo

STATEMENT OF THE CASE . o - . . VI .

STATEMENT REGARDING PROCEDURAL HISTORY.. VII.

GROUNDS FOR REVIEW • - VIII-I3i>:

ARGUMENTS AND AUTHORITIES 1-16.

CONCLUSION 16.

PRAYER FOR RELIEF. «... - 16.

CERTIFICATE OF SERVICE 16.

APPENDIX... end.

I.
IINDEX OF AUTHORITIES

TEXAS CASE: PAGE NO.

BELL Mr. STATE, 356 S.W.3d:528. ... 1.

DRAKE v.hSTATE, 686 S.W.2a 935,944 7.

ERVlM:ivu; STATE, 991 S.W.2d 804,814 3.

EX PARTE CASTILLO, 432 S,W.3d 457.... • ...4,5.

EX PARTE CAVAZOS, 203 S=W.3d 333 4,5.

EX PARTE DUFFY, 607 S.W.2d 507 16 =

EX PARTE RATHNELL, 717 S.W.2d 33,36 .-5.

GIRDY V. STATE, 213 S.W.3d 315,319 3.

GARCIA V. STATE, 919 S.W.2d 370,381... . 2.

HOLLY V.STATE/ 469 S.W.2d 136,137...... 7.

LACY V. STATE, 160 TEX.CRIM.9599261773 .W.2d 139^141 7.

MENDOZA y. STATE, 1 S.W.3d 829 ... 1.

PHILLIPS V. STATE, 787 S.W.2a 391-95 5.

RUSSEL V. STATE, 146 S.W.Sd 705,714..,.........^. 11.

VAUGHN v.SSTATE, 239 S.W.3d 351 4.

VON BYRD V. STATE, 569 S.W.2d 883,890-91.. ... 11.

WILLIAMS V. STATE, 897 S.W.2d 351, CERT.DENIED 516 U.S. 946... 9-10.

YGLESIAS V. STSTB/: 252 S.W.3d 733S(HDfii®E^^iREP'D 1.

CRAWFORD V. STATE, 685 S.W.2d 343,349-50 ..x....,ll.

LANDERS V. STATE, 957 S.W.2d 558r560... 5.

FEDERAL CASES:

MAYOLA V. ALABAMA, 623 F.2d 992,998. (5TH CIR.1980) 11.

U.S. V. DURHAM, 287 F.3D 1297,1304 (llTH CIR.2002). 2.

SUPREME COURT CASES:

BENTON V . •iHARYLAND , 395 U.S. 784 3.

BLOCKBURGER V. U.S., 284 U.S. 294 3.

BROWN V.OOHIO, 432 U.S. 161 3.

FARETTA V. CALIFORNIA, 422 U.S. 806,821 .... 12.

GRADY V. CORBIN, 495 U.S. 299 3-

ILLINIOS V. VITALE, U.S. 410 3.

STRICKLAND, 466 U.S. 688 ...............6,7,8,12,16

TRAVINO V. THALER/ 569 U.S.^ (2013). 16.

UNITED STATES V. CRONIC, 466 AT? 656-57 . 12.

U.S. V. DIXON/ 509 U.S. 688 3.

II.
AUTHORITIES CONT:

PAGE NO^

TEXAS CONSTITUTION:

TEX.CONST. ARTICLE 1 § 14 3.

UNITED STATES CONSTITUTION:

U.S.C.A. CONST, amend 5 ......... 3,

U,S.C.A. CONST. AMEND 6 1/2,6/8,12,

11/13.

U.S.C.A. (pClNST. AMEND 3j4 ......................................X,2/6,8,12,

11/13.

TEXAS STATUTES:

V.T.C.A. PENALCOODE § 19.03 (a)(2) ...4,7.

V.T.C.A. PENAL CODE § 30.02(a)(2) ..4,

V.T.e.A. PENAL CODE § 22.02 5.

V.T.C.A. PENALCOODE § 8.01 13,14,15.

V.T.C.A. PENAL CODE § 3.04 (a) 7.

FAMILY CODE § 71.003 5.

FAMILY CODE § 71.0021 (b) ....5.

EAMILY CODE § 71.005 (b) 5.

TITLE 7 PENAL CODE 7.

TITLE 5 PENALCOODE .,..7.

V.T.C.C.P. ART.l.lOd) . . 3^

V.T.C.C.P. ART.1,14 8.

V.T.C.C.P. ART.21.24. . . 5^7^

V.T.C.C.P. ART.31.01.. .....11.

V.T.C.C.P-AART.31.03(a) .9.

V.T.C.C.P. ART.42.12 (d)(8)(c)... 12.

V.T.C.C.P. ART.46.03. . . 14.

CRIMINAL LAW;

CRIMINALILaW KEYNOTE-144 4.

CRIMINAL LAW KEYNOTS!620 . ( 3 ) .

CRIMINAL LAW KEYNOTE-641.13 ( 2) 7.

CRIMINAL LAW KEYNOTE-637 . 2

CRIMINAL LAW KEYNOTE-773 13.

INDICTMENT AND INFORMATION KEYNOTE-127

INDICTMENT AND INFORMATION KEYNOTE-129(1) 6.

OTHER STATUTES:

V.T.C.A. PENAL CODE § 3.01(a) .7.

III.
AUTHORITIES CONT:

PAGE NO.

88 P.A.291 (1879) .16,

IV.
STATEMENT REGARDING ORAL ARGUMENT

EETITIONER URGES THE COURT TO ALLOW ORAL ARGUMENT FOR THE FOLLOWING

REASONS; TO WIT:

petitioner's claim of double jeopardy is based on the Gavazos casg

203 S.W-3d 333 (Tex.Grim-App.2006) and the Castillo case that the

State cited in its brief: Ex parte Castillo/ 432 S.W.3d 433 (Tex.App.

-San Antonio 2014/no pet-h-).

Furthermore/ this error is an error whether objected to or not.

Petitioner briefed said error in his Pro/se brief which the 13th

Court of Appeals failed to adjudicate oniits merits.

Because their is a misjoinder issue in multiple count indictment

Petitioner needs futher redress from the Court of Appeals to address

said grounds. Also because the, record was fully developed before the

Court Petitioner claimed ineffective assistance of counsels on both

direct appeal as well as trial attorneys. Fetitoner should be given

the full adjudication of ineffective assistance of counsel as outlined

in Trevino v. Thaler/569 U.S. (2013). Furthermore/ Petitioner urges

the Court for oral argument that Petitioner's attorney on direct appeal

filed Anders brief and motion to withdraw/ the Court assigned Stephen

W. Byrne as attorney who filed motion to withdraw based on ill-health

and no Ander's brief. Because he was the attorney of record the 13th

Court of appeals was in error and abused their discretion by ruling

on Anders brief filed by attorney Fred Jiminez whom was no longer

Petitoner's attorney of record and such Anders brief filed was moot

by operation of law. Because the remainder of the errors are based on

ineffective assistance of counsel Petitioner urges the Court to allow

oral argument.

V.
STATEMENT OF THE CASE

on December 12/ 2011 Jose Gonzales III, hereinstyled Petitioner was

charged with Capital Murder in the course of. committting a Burglary

of a Habitation of one Leslie Morin/ by shooting Leslie Morin with

a firearm. In Count 11/ Petitioner was charged with Burglary of a

Habitation on or about December 12/2011 in Nueces County/ TexasThere and then Intentionally and knowingly enter a habitation with

out the effective consent of Vida,l Rodriguez who had greater right

to said property/ and attempt to commit or committed the felony

offense of Aggravated Assault with a Deadly Weapon.

Petitioner was employed as a Alice police officer in the City of

Alice/ Texas on the:: day of the offense- In a high profile trial

Petitioner was convicted on both counts by a biased and highly ^

prejudiced juryThe court sentenced Petitioner to life with out parole on count 1/

and life with parole on count II. Wherein said convictions are constutionally infirm- The trial was overwhelmed by the media, and public

pressure. Change of venue was warranted.

VI-
STATEMENT REGARDING PROCEDURAL HISTORY

Petitoner was charged by indictment with one count of :Capital

murder during the course of committing a burglary of a habitation,

and one count of burglary of a habitation with the intent to commit

aggravated assault or a felony. A, jury convicted him of both offenses

as alleged in the indictment on December 6/ 2012. The Court assessed

punishment at life without the possibility of parole for the Capital

Murder charge and life in the Institutional Division of the Texas

department of Criminal Justice-CID for the Burglary of a habitation

charge- The Petitioner filed notice of appeal on December 10, 2012.

Petitioner's attorney of record Fred Jiminez filed an Anders brief

on July 18, 2013. On July 24, 2013 Attorney Fred Jiminez filed a motion

to withdraw as attorney. On August 16, 2013 the trial court appointed

Stephen W. Byrne to represent Petitoner. On September 8^ 2013 Stephen

W. Byrne filed motion to withdraw citing ill-health and requested the

court to appoint new counsel. No Anders brief was filed and no new

attorney was appointed. Petitioner filed a motion in the 13th Court of

Appeals for trial record. Petitioner filed his Pro/se brief on May 23,

2014, along with request for oral argument. Furthermore, Petitioner

filed a motion in the 13th Court of appeals for his trial attorney to

produce the psychological report generated from his court ordered

evaluation. Such report was never, made part of the record- The State

was ordered to file their brief. The case was due for submission on

August 13, 2014. The State filed their brief on August 12, 2014 with a

motion for an extension of time. Petitioner filed a motion to hold said

appeal in abeyance in order to respond to State's brief. On August 14,

2014 the Court affirmed in an unpublished unsigned boilerplate opinion

by Justice Dori Contreras Garza, which appear to be the work of a clerk

or para-legal employed by said justice refering soley to the Anders brief

that attorney Fred Jiminez submitted that should have been ruled moot.

Petitioner filed motion for rehearing on August 30, 2014. The State filed

brief agreeing with Petitioner's claim of double jeopardy wherein the

San Antonio Court rendered relief for the exact same issue- Rehearing

was denied on January 21, 2015-

VII -
GROUNDS FOR REVIEW

GROUND ONE; PAGE NO.

TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES

IN VIOLATION OP U-S-C-A. CONST. AMENDS 6TH AND 14TH. TRIAL COURT

INFRINGED UPON PETITIONR'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT

TO COUNSEL. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO

PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULTING PETITIONER'S

CLAIMGROUND TWO;

THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER

FOR multiple BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFUL

ENTRY, IN VIOLATION OF TEXAS CONSTITUTION ARTICLE I/§14 AND U-S.C.A.

CONST. AMEND 5TH/ ALSO V.T.C.C.P. ART. 1.10.

GROUND THREE;

INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER

OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT

FILE PRETRIAL MOTIONS/ NOR OBJECT DURING TRIAL TO MISJOINDER OF

OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL/ SUCH OBJECTIONS

WOULD HAVE RESUffiED IN DIFFERENT OUTCOME.

GROUND FOUR;

INEFFECTIVE OF COUNSEL; COUNSEL'S FAILURE TO FILE MOTION

TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HENCE/ PROSE

CUTION COMMENCED UPON THESSTRENTGH OF AWUNSIGNED INFORMATION.

GROUND FIVE;

ineffective ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE

OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH

V.T.C.C.P. ART.31.03/ WAIVER BY ATTORNEY PROCEDURALLY DEFAULTED

PETITIONER'S RIGHT TO R'aSEiSE CLAIM FOR APPELLATE REVIEW.

GROUND SIX:

TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING CHANGE OF VENUE

AFTER IT BECAME IMPeSSIBEE.TO SEAT A JURY THAT WAS UNBAISED IN HIGH

PROFILE CASE.

GROUND SEVEN;

INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL ABANDONED PETITIONER/

ACTING AS NO COUNSEL AT ALL/ MERELY FRIEND OF COURT.

VIII.
GROUNDS FOR REVIEW CONT: GROUND EIGHT: PAGE NO,

PETITIONER'S COUNSEL FOR DIRECT APPEAL FRED JIMINEZ COMMITTED

INEFFECTIVE ASSISTANCE OF COUNSEL BY PLACING A FRAUD BEFORE THE

COURT BY FILING FRIVOLOUS BRIEF, FOR SUCH ACTION WERE MOTIVATED BY

POLITICAL ASPIRATIONS AND NEPOTISM/ AND THE HIGHiEjeOSSltEE NATURE OF

THE CASE. THE COURT ASSIGNED STEPHEN W. BYRNESAS APPEAL ATTORNEY/

RENDERING FRED JIMINEZ'S BRIEF MDOTi BY OPERTION OF LAW. STEPHEN W.

BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT

EDUCATED IN THE LAW.

GROUND NINE: PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE

OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY

INSANITY/ AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S

MENTAL STATE AT THE TIME OF OFFENSE.

IX".
COMES NOW/ JOSES GONZALESIIII / HEREINSTYLED, PETITIONER/ FILES.;

THIS PETITION FOR DISCRETIONARY REVIEW IN ACCORDANCE WI^H TEXAS

RULES-^sAPPELLATE PROCEDURE RULE«68. TO WIT:

ARGUMENT

GROUND ONE:

TRIAL COURT ERRED IN ALLOWING PETITONER TO BE TRIED I=N SHACKLES IN

VIOLATION OF U.S.C-A. CONST. AMENDS 6TH & 14TH. TRIAL COURT INFRINGED

UPON PETITIONER'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL.

INEFFECTIVE aSSlSTAHGE OF COHNSBIL FOR OBJECTING TO PETITIONER BEING

SHACKLED AND THEREBY PROGEDURALLY DEFAULTING PETITtlONESFSSCCAIHaPetitioner contends the trial court abused its discretion in requi

ring Petitioner to wear shackles during trial/ and the wearing of

shackles was not harmless. (RR.Vol.3/ Pg.l26/Line 3-13). From this

colloquy between the court and the Petitioner ^estEaihtsr.as articulated

by the court line 8, does not justify shackling of the Petitioner. The

Court of Criminal' Appeals has repeatedly critized Nueces County Courts

for rountinely shackling defendants without articulating a need for

restraints. Criminal Law Keynote-637-2: Grounds and circumstances

affecting the use of restraints in general. Essential State interest

justifying shackling a defendant is found where there is a danger of

escape or injury to the jury/ counsel/ or other trial participants.

U.S. V- Banegas/ 600 F.3d 342. Criminal Law Keynote-637.2: Rountine

shackling oi'defendants is prohibited. Bell v. Stated 356bS.W.3d 528/

rehearing overruled. (Tex-App.Houston[14th Dist.]2008).Generally a defen

dant has right to be tried without being shackled/ whether or not the

shackles are visible - to the jury? however/the trial r<s&U-r:t has discretion

to order restriants if there is a ^showing of a manifest need or execeptional circumstances/ such as-when a defendant poses a threat to himself

or others, yglesias v. State/ 252 S.W.Sd 733/ PDR rev. refd (Tex.App.

Houstonv[14th Dist.] 2007). Requiring a defendant to be tried in shackles

without adequate reasons is repugnant to iire spirit of r.the law and ideas

of justice whether those restriants visiblecor unseen-Grayson v.viState/

19225.W. 3d 790/ also see/ Mendoza v. State/ 1 S.W.3d 829 (Tex.App.-Corpus

Christi 1999)(Reversed Aug.31/1999). The Court of Criminal Appeals admoni

shed Nueces County Courts for rountinely shackling defendants. Peitioner

was "required to stand every time the jury exited or entered the courtroom

as well as move to a different courtroom for furthdfvior dire. Said restri1.
ARGUMENTS CONT:

^ants were visible to the jurors.. See Vol ^3 .pg. 126. The Petitioner was

denied the persuiaptibn of innocence and every aspect of due process under

the U.S. Const.14th Amend/ 6th Amends/ Equal Protection Clause.

Ineffective Assistance of Gounseli To Wit: Because Petitioner's counsel

did not object to petitioner being shackled/ said counsel procedurally

defaulted said claim for purpose of appellate review and such deficient

performance prejudiced the out come and because of this act and ommission

there is a probability that the outcome would have been different.

Shackling of•Petitioner without a demonstrative need compromised the

formal dignity of the court and judicial proceedings and lead to harmful

collateral effects- Such eff'ects cheifly included curtailing Petitioner's

ability to communicate: freely v/with counsel because of the physical limi

tations imposed by shackles and simply the distraction and embarrasment

they caused the Petitioner. See/ United State/ v. Durham/ 287 F-3d 1297/

1304 <llth Gir.2002) ("Even if the [shackles] placed on the defendant are

visible to the jury/ they still -may... confuse the defendant/ impair his

. ability to confer with counsel/ and significantly affected the trial

strategy he choose to follow.") . Petitioner's attorney made the follow

ing statement to the prospective jurors that tainted the whole trial

process: I frankly/ rprobably will not be spending any'tiffie'-qiaeStioning

that type of evidence because as I told you right from the get go/ Jose

is in fact guilty of criminal homicide/ the question is what sort of

criminal hombcide is he in fact guilty of? See/ (Vol.3/pg.147/4-9).

Because Petitioner was shackled he did not approve of such trial strategy/

whie^imade the trial process unfair and confused Petitioner/ and impaired ,

his ability to communicate/ and significantly effected the trial strategy/

wherein Petitioner was not informed of such trial strategy. Petitioner

believed that temporary insanity would be the trial strategy and course

his attorney would take. It appears that attorney's error for not object

ing to shackling/ along with the attorney's anprofessional error that

believing that Petitioner was guilty and shackling implied dangerousness

in the jurries mind/ serverly infringed on Petitioners persumption of

innocence/ was defificent performance that reasonable effected the out

come ofcthe case. Petitioner was made to stand for the jury on numerous

occassions/ not only were the shackles visible/ but because of the

movement/ the chains were heard byithe jurors. In such a high profile

trial/ here the errors originated from the trial court's saa sponte order/

and trial court's reason for shackling the Petitioner are insufficient as

a matter of law. See/ Garcia v. State/ 919 S.W.2d 370,381 (Tex.Crim.App.-

1994). Because of errors appearing in the record PDR should be granted.

2.
GROUND TWO:

THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER

FORMMUETIEEE BURGLARIOUS ENTRIES WHERE THERE WASOONEY (1) UNLAWFUL

ENTRY. IN VIOLATION OF TEXAS CONST. ARTICE 1§14 AND U.S.C-A- CONSTAMEND. 5th AND V.T.C.C.P. ARTICLE 1.10. TO WIT:

Petitioner was convicted in a single trial and given multiple punishments

for the same conduct/ thereby invoking the jeopardy clause in the P»S.

Const. & the Texas Const. Petitioner was charged by indictment in Count I

with coniitting Murder in the course of a Burglary of a Habitation, and in

Count II/ Burglary of a Habitation with Intent to Commit Aggravated

Assault or a Felony- In Art- 1.10 V.T.C.C.P. States: No person for the

same offense shall twice be put inrjeopardyief life-be it-b©rtyfsnor shall

a person be again put upon for trial for the same offense; after a verdict

of not guilty in court of competent jurisdiction. The rule is a State may

notpplace a defendant in doiable jeopardy; U.S. Const. V; Tex. Const. Art.

I§14; Benton v. Maryland/ 395 U.S. 781 (1969). This means the State may

not:. :.(1) prosecute a. defendant fGrvthd same offense after an acquittal;

and (2) prosecute a defendant for the same offense after a conviction; or

(3) obtain multiple punishments in a single trial for the same offenseIllinios v. Vitale/ 477 U.S. 410 (1980); Brown v. Ohio, 432 U.S- 161 (197?

7). What we are concerned here is; "that Count I for Capital Murder is

predicated on a burglarious entry in order to be upgraded to Capital

Mureder- See, Tex. Penal Code § 19.03. Count 11, under Penal Code § 30.02

Burglary of a Habitation intent to Commit Aggravated Assault or a FelonyThe "same elements" test found in Blockburger v. U.S., 284 U.S. 299 (19-

32) questions whether the State is attempting to punish the defendant

twice for the same offense- This test asks the Court to examine each of

the statutes to determine whether each require a proof of:apdifferent

element the other does not- The Court abandoned the "Same ebsdaet" test

by overrulling Grady v. Corbin, 495 U.S. 508 (1990), in U.S. v. Dixon,

509 U.S. 688 (1993) . But in double jeopardy/mCiitiple punishment claims,

Blockburger is not the solo focus- Ervin v. State$?991 S.W.2d 804,814

(Tex.Ceim.App.1999)- .IfIthe Court has actual legislative intent of the

two statutes, that intent is the critical factor- If not then look at

Girdy V. State/ 213 S.W.3d 315/319 (Tex.Crim.App.2006)(if the prosecution,

in proving one element of one offense, also necessarily proves another

charged offense; if so, there must be clear legislative intent to punish

the offense seperately or multiple punishments are barred.)

3.
GROUND TWO CONT:

The allowable unit of prosecution is the individual entry for burglary

is • not the number of individual crimes committed once the defendant

makes the unlawful entry. Ex parte Gavazos* 203 S.W.3d 333 (Tex.Grim.-

App.2006). Vaughn v. State/ 239 S.W.3d 351 (Tex.App.-San Antonio 2007).

Here we have Petitioner sentenced to multiple punishments for one un

lawful entry. See/ Ex parte Castillo/ 432 S.W.Sd 457 (Tex-Crim.App.-San

Antonio 2014/ no petih; iDouble Jeopardy Keynote-4: Double jeopardy

clause impose few/ if any/ limitations on the legislative power to esta

blish and define the offense. U.S.C.A. Const.5th Amend. Double Jeopardy

Keynbte-144: Convictions for Capital Murder during the course of commit

ting Burglary of a Habitation/ and Burglary of a HabitatlgnrrinfefeBt to

eommxt a Felony (Aggravated Assault) violated double jeopardy clause;

even thou there were two victims/ the alloable unit of prosecution was

the unlawful entry. Not the complainant/ and the defendant was punished

multiple times' for a single entry. U.S.C.fiA 5; V.T.C.A. Pen. Code § 30.02

Ca). Double Jeopardy Kefnded-r32.1: Thie "most serious offense" which is

retained when convictions violate double jeopardy clause is the offense

of conviction which the greatest sentence was assessed; other::£getors

such as the degree of the felony, range of punishment, and rules govern

ing parole eligibility and awarding of good-conduct time/ are not consi

derations; overrulfling Landers v- State/ 957 S.W-2d 58/ U.S.C-A. Amend 5. 'h

The issue before us is convicting Petitioner of two burglarious entries

each with a different complainant but arising from a single unlawful en

try of a habitation constitute double jeopardy? The prosecutions theory

in the charging instrument that Petitioner committed Capital Murder in

the course of committing Burglary of a Habitation in Count:!. The pre

requisite of felony murder upgraded to capital ..murder is outlined in V.T.-

G-A. Penal Code § 19.03 (a)(2). Wherefore without the burglarious entry

'"I

Petitioner could only be convicted murder as defined. The integral part

of the conviction in Count I is the burglary of a habitation- It was

established at trial/ that Petitoner kicked in the front door/ shot/at::

Vidal Rodriguez/ then proceeded to the back bedroom and shot his estranged

wife-multiple times. See, (RR.Vol.4/pg.11-17. The theory of the indictment

differed from the theory at trial. Wherein the capital murder was placed

in a stratigic position of appearing first/ when in fact it was the-'

result of Count II/ Burglary of a Habitation intent to commit a Felony

(Aggravated Assault). Burglary of a Habitation is complete once the

unlawful entry is made, without regard tb whether the intended theft or

felony is also completed. V.T.C-A. Penal Code § 30.02 (a)$2)/ V.T.C.A.

i

! 4.
GROUND TWO CONT:

§ 22.02 Aggravated Assault (1) Causes serious bodily injury to another,

including the person's spouse; or (2) Uses or exhibits a deadly weapon

during the commission of the assault and causes serious bodily injury

to a person whose relationship to or association with the defendant is

described by by Sections 71.003/ 71.0021 (b)/ 71.005 (b), an offense

under this statute is a felony of the second degreeif; (to end of statute)-

The allowable unit of prosecution for assaultive offense is each complianant. See, Phillips v. State, 787 S.W.2d 391^95(Tex.Crim.App.(1990)(Assault)

Ex parte Rathnell, 717 S.W.2d 33 ,36 (Tex. Grim. App .1986) (VoltiintaEy/Manslaugh

ter) . Burglary, however is not an assaultive offense; rather, its place

ment within Title 2 indicates that the legislature determined burglary

to be crime against property. Thus the complainant is not the allowable

Vinit-of prosecution in burglary, rather, the allowable unit of prosecution

is the unlawful entry. When a defendant is convicted of two or more offenses that are the "same" for double-jeporady purposes, our case law tells

us that the conviction for the most serious offense is retained and the

other conviction is set aside. See, Landers v. State, 957 S.W.2d 558/5S9—

60 (Tex.Grim.App.1997). Landers statesr^that the ^ni©st?sgf:ious" offense is

determined by the degree of the felony range of punishment and sentence

imposed. Landers is overruled by Ex parte Cavazos'. The third reason

applies some what differently to the double-jeopardy ebntext than the

misjionder context, we.fashioned a rule'designed to best ascertain what

offense the State would elected to proceed upon upon at the time of trial.

We did so because, in the misjionder context the State is not permitted to

prosecute both offenses at the same time. Hence our evaluation of the

seriousness of the offense coming into play only when the cahgejof punish

ment and the degree of the offense being the same- It is this very rea

son why Petitioner need competent legal counsel, for the complexity of

such issue. Petitioner's counsel acted as No Counsel at All! We shall

visit the misjionder doctrine in our next point of error. For the record

reflects that double jeopardy has appeared from the record, to the degree

that both sentences are equal in respect that Petitioner was sentenced

to life on both Counts, and the Court has ruled in Gavazos, 203 S^W-3d 333

(Tex-Crim-2006)- The most serious offense retained.-In this case both

sentences are equal, thereby jeopardy nullifying both- There being jeo

pardy appearing from the record, said convictions should be remanded and

aggHi^tal?/ or in lieu with instructions. See also. Ex parte Castillo/ 432

S.W.3d 457 (Tex.App.-San Antonio 2014, no pet. h.).

5.
GROUND THREE:

INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJIONDER

OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT.

COUNSEL DID NOT FILE PRETRIAL MOTION NOR OBJECT DURING TRIAL TO

MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL.

SUCH OBJECTION WOULD HAVE RESULTED IN A DIFFERENT OUTCOME.

Criminal Law Keynote-620(3): Mandatory serverance of offenses only applies

to joinder of property offenses. V.T.C.A. Penal Code § 3.06(a).

Indictment and Information Keynote-127: State is prevented in the presence

of objection/ from alleging more than one non-property offense in a single

indictment/ regardless of the number of transactions involved. V.T.C-C-P.

Art.21.24. Indictment and Information-Reynote-127/129 (1): For State to

avoid joinder problems/ indictment for non-property offenses/ whether

arising from one transaction or seperate transactions/ should contain only

one Count in as many paragraphs as are necessary to allege various manner

and means of committing the one alleged offense. V.T.C.C.P •;\ART. 21.24 (a).

Indictment and Information Keynote-196(7): To avail himself of pleading

limitations with respect to non-property offenses, defendant should file

pretrial motion to quash indictment orrurge/ sometime during trial/ that

State make an election; failure to object will result in waiver of plead

ing requirements. V-A.T.C.C.P- art- 21.24. Indictment and Information

Keyn©te-127: Indictment was invalid on basis of misjoinder where indictment

alleged more than r.pne:: rionproperty offense and property offenseINEFFECTIVE ASSISTANCE OF COUNSEL

petitioner's counsel not filing Motion to Sever offenses/ nor Motion

to Elect/ nor Objecting to misjionder/ resulted in Petitioner's claims

to be procedurally defaulted for purposes of appellate reviex^. Prejudiced

the outcome of the trial/ resulted in the convictions for two offenses

for the same transaction which resulted In two life sentences- Because of

counsels deficient performance thereri-s treasonable probability that the

outca>!he would have been different- Such ommissions by the Petitioner's

counsel gave the State a-tactical advantage over Petitioner/ which resul

ted in the trial being unfair and biasd jury. U-S.C.A- Const- Amend- 6 & 14

Counsel's failure to file pretrial motion to quash/ or object was far

"below the range expected of reasonable/ professional competent assistance

of counsel." Counsel's performance thiis/ "did not measure up to the stan

dard required in the holding in StricMand/v466 U.S. 688(1984), and [if it

had/] there is a reasonable probability that the results would have been

different in the sentencing phase."

6.
GROUND THREE CONT:

Under the applicable State prcedures there would have been an election,

and Petitioner would not have to face two offenses under the same jury.

Turning to the prejudice issue: Counsel Abandoned His Client; The manda

tory severance under §3.04 (a), applies to joinder of property offenses

listed under Title 7 of the Penal Code. See/ Waythe v. State/ 533 S.W.2d

849 iiTex.Criin-App.1976) - Capital Murder is not a property offense. It is

listed as an offense against the person, under Title Eive of the Penal

Code. V.T.C.A. Penal Coddoig.03.. However , the right iso-foeeesaTi election#

which follows from implicit statutory restrictions relating to the manner

in which non-property offenses may be joined in an indictment/ is supportedbby precedent# it holds that the legilature/ by its amendment of art.

21i24 / has implicitly prevented the State::fromiiailegiagv. in a. single

indictment two or more nonproperty offenses if those offenses arose out

of the same criminal "incident/ act or transaction'."" Generally/"transac

tion" has come to mean a criminal event and the various paetieulaf offenses

committed within that event. See, Drake/ supra/ at pp.945-49/ (Petitioner's

original Brief and Appendix pg.l6). Thereby counsel abandoning his client

in a^critical stage of the proceeding resulted in inadequacy of representa

tion. fhere being ineffective assistance of counsel appearing from the

record/ said cause should be reversed and remanded with instructions.

INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL'S FAILURE TO FILE MOTION

TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED; HENCE PROSECUTION

COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION. GROUND FOUR: TO V3ITi

Petitioner's attorney failed to file motion to qaush the Information that

does not have signature on it. We are left with the proposition that the

case proceeded to a conconclusion with a documentation in the file to

reflect that Mark Skurka or anyone else signed the Information charging

Petitioner with an offense a further jurisdictional defect of itself.

See, Holly v.State//i469 S.W.2d 136 ,137 (Tex .Crim.App. 1970) . See/ Exhibit

"A" Pet- Appelate Brief). T-C-C-P- art- 21.21(a)/ Lacy V-State/ 160 Tex.

Crim. 95/ 267 S'^;]W-2d 139/141(1948)- Because Petitoner is in need of aJity.

at every stage of the proceeding it is emphasized here that attorney's

knowledge and skill of the law and practices of the criminal trial and

proceedings. Criminal Law Keynote-641.13(2): Performance of defense coun

sel was not only unconstitutional unreasonable and ineffective, but coun

sel abandoned required duty, of loyalty to his client; Counsel he acted with

reckless disregard -for his client's best interest and at times, appearantl^

to weaken his client's case. Just simply poor strategic choices. U-S-C-A7.
GROUND FOUR CONT:

Const- Amend- 6th- It is emphasized that a "defendant need not show that

counsel's deficient conduct more than likely altered the outcome of the

case." Instead the defendant bears the burden of showing "that there is

reasonable probability that/ but for counsel's unprofessional errors, the

results of the proceeding^-/would have come /out different. A reasonable

probability sufficient to, undermine, confidence in the outcome." Id-/ 694/

104 S-Ct- at 2068/ T-C-C-P- art-1.14 Waiver of Rights: Punishing a lawyer's

intentional and unintentional errors by closing the courthouse door to his

client is both senseless and misdirected method of deterring the slight of

State rules. It is senseless because unplanned and unintentional action

action of any kind generally is not;, subject to deterrance; and to the

extent that it is hoped that a; threatend sanction addressed to the defense

induce greater care and caution on the part of trial lawyers, thereby

forestalling negligent conduct and errors The potential loss of valuable

State remedies would be sufficient to this end. And it is misdirected

sanction because even if penalization of incompetence or carelessness will

enciourage more legal trianing and trial. preparation / the Petitioner / \as

oppossed to his lawyer, hardly is the proper recipient of such a penalty.

Espicially with fundamental constitutional rights at stake, no fictional

relationship of principal-agent or the like can justify holdingthe crimi

nal defendant accountable for the naked errorscg^ his attorney. This is

espicially true when so many indigent defendants are without any realistic

choice in selecting who ultimately represents them at trial. Indeed, if

responsibilty for error must be apportioned between the parties, it is

the State through its attorney's admissions and certifications policies,

that is more fairly held to blame for the fact that practicing lawyers

too often are ill-equipped to act carefully and knowledgeably when faced

with decisions governed by State procedural requirements. Hence, Petitioner

agrees with the proper functioning of our system of criminal justice,

necessarily places a heavy reliance on the professionalism and the judgment

of trial attorneys. A system that ascribes absolute forefiture of Petition

er's constitutional claim where his lawyer manifestly excercise no pro

fessional judgment at ail-where carelessness, mistakes, or ignorance is

the explanation of the procedural defaults. It is regrettable that certain

errors/.that might have been cured earlier had trial counsel acted expeditiously, must be corrected collaterally and belatedly. Hence, Petitioner s

attorney was was deficient and such deficient conduct prejudiced the

outcome of the trial. Because of attorney's acts and ommissions said cause

should be reversed and remand with instructions8.
GROUND FIVE:

INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT FILING

MOTION FOR CHANGE OF VENUE IN HIGH PROFILE CRIMINAL

PROSECUTION IN ACCORDANCE WITH V-A-T-C-C-P. ART- 31.03.

SAID WAIVER BY ATT0RNEY:EEFSUL"TED PETITIONER' S RIGHT

TO RAISE GROUND FOR APPELLATE REVIEW.

Petitioner complains that deficient perforraace by attorney defaulted

his claim for appellate review, and prejudiced the outcome of trial.

Petitioner an Alice police officer was the subject of extensive media

coverage in the County and surrounding Counties wherein the instant

offense took place. Furthermore/ the Internet and Social Media followed

said case. Petitoner was the subject of a documentary/ wherein a series

of local television stations broadcast the sventsrand circumstances

surrounding the case. See/ (App- Brief Bxh3)li>it "G"). Under art. 31.03 (a)/

a change of venue may be granted in a felony ©r5at.misdemeanor case punish

able by confinement on the written motion of the defendant. There was a

dangerous combination against him instituted by very influential persons/

by reason of which he canot expect a fair trial. Said publicity was per

vasive/ prejudicial/ and inflammatory. Here we aiee concerned with the

attorney not filing motion for change of venue/ after it became apperant

that Petitioner could not recieye a fair and impartial trial/ and if

atorney's deficient performace prejudiced Petitioner? The court asked the

panel anyone knows about the case? (RR'iVol .2/pg.30/ line:6-23) Over 70

jurors raised their hands who had:personal knowledge of the case- In

VoJ'.2# pg.30/ line: 23S25.) 27 people had already made up their minds

could not be fair and impartial. In (RR.Vol.2/ pg-58/1-25/pg.59/1-25 &

pg.60/1-25)/ juror no.2 explains in detail about the coverage in the Callei

Times. She describes the kidnapping of Petitioner's son/ wherein she has

formed an opinion as to the violence of the case. Also defense attorney

Woener Stated: "he never seen so many people who have made their minds up

in a case/ even with more publicity. fVol.2/pg.56/23-24). Defense counsel

should immeadiately filed a Motion for Change of Venues Kealizing from

the percentage of potential jurors that had already formed an opinion

about the guilt of the Petitioner/ that his elient could not recieve a

fair an impartial trial, "a defendant must show an ability to obtain a

fair an impartial trial." Coupled with counsel's disenchanment Petitioner

could not have recieved a fair and impartial trial because defense counsel

a'lready given up. See/ Williams v- State, 897 S.W-2d 351 {Tex-CriM*App.^

cert, denied/ 516 U.S. 946, 116 S.Ct.385, 133 L.Ed.2d 307 (1995). To

9.
GROUND FIVE CONT:

•gastify a change of venue based on reGen.tfarid'significant ^amounts of

media coverage and that publicity regarding similar cases had the effect

of creating greater prejudice/ bringing "some afore-thought to people'

and making it "very hard" to find a fair and impartial jury. Petitioner's

attorney could, have called upon a number of potential witnessesa that

were listed on the prosecution's witness Irist for this eventuality. The ,

prosecution was prepared to fight a'change of venue motion/ witnesses from

several television stations/ newspapers/ and other social media outlets

were prepared to testify to the number of potential jurors exposed to these

segments. See/ (Appellants Brief Exhibit "C"). Petitioner's attorney could

have produced the requisite affidavits need to bolster his Client's positior

See/ (C.R. pg-30/32/ and 43). Here you have .77 members of the array who have

followed the case in the media, who have extensive knowledge of the case,

including kidnapping of Petitioner's son/ (ah offense he was not on trial

for), which further excebarrated the coverage and the amount of times this

coverage was repeated in a course of a year was-astronomlcal- Therefore,

even after the court conducted its vlbr.dire, it was clear from the record

that the trial court tried to rehabilitate the remainder of this poisoned

panel, we must also bear in mind, that the court was in a unique position

of hearing the testimony of the .jurors and guaglng the. siacerity of ,their

responses in light of the publicity about the case. Petitioner was entitled

to a change of venue if he could show that the there;.was influences in the

commiiiity which could affect answers on the vior dire. There are two

things that distinguish this case from others in which a majority of the

venire is familiar with- the case.. First the nature of the publicity is

quite different because/ Petitioner was a police officer/ there was a

buiglary/ a murder/ kidnapping/ an Amber alert went out/ there was a school

lockdown/ there was a Swat-standoff/hostage situation. NewsrStationsrreport

ed widely and did extensive coverage on the day of the offense/ and for a

year after until the date of trial. Potential jurors had the oppertunity to

watch it unfold. Second/ a large number of potential jurors could not setaside their opinion. This strongly indicates that pretrial publicity result

ed in actual identifiable prejudice to Petitioner. Also media coverage was

not accurate and objective/ because it reported an actual kidnapp were

there was none. Because Petitioner's attorney not filing the motion for

change of venue, it rendered him deficient in his performance/ and because

of -the ommission/ it is a probability that the outcome of the trial would

have been different. It must be remembered that the court ordered a Gag

Order on the case. See, (CR.pg.30). Here we have the acts and ommisssions

10.
GROUNDdFIVE CONT:

of said attorney / who effectively abandoned his his Client. Said

cause should be reversed and remanded.

GROUND SIX:

TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING A CHANGE OF VENUE

AFTER IT BECAME IMPOSSIBLE TO SBAffiCMJURYVTHIST WASiiHNBTASDCiNi'HIGH

PROFILE CASE.

In change of venue cases; T.C.C.P. art.31.01/ the trial judge should

have filed her own motion to change venue after the vior dire revealed

that Petitioner could not recieve a fair and impartial trial. Because

the jury that was actually seated was tainted by the rest of the array,

along with the fact that this case was tried in the media before the

actual jury was pooled. The Sixth Amendment gives the Petitoner the

right to, a fair and impartial trial/ it is the presiding judge who condu

cts the vior dire. It was impossible to seat a- jury in this high profile,

media driven trial, trial judge abused her discretion. The large number

of venire panelist were disqualified for cause, because they could not

not set aside their opinions of the. Petiioner's guilts See, (RR-vol.2/pg.

30/9,22/ & pg.31/13-25). See/ 14th Amend U.S. Const. Also/ V.T-C.C.P. art.

31.03 (a)/ Mayola v. Alabama/ 623 F.2d 992/ 998 (5th Cir.l980)/ Von Byrd

v. State/ 569 S.W-2d 883/ 890-91/ Russel v. State/ $46 S-W.3d 705/714

(Tex,4App.Texarkana 2004) pet. refd) / Crawfeord V. State, 685 S.W-2d 343/

349-r350. The number of jurors that were unable to serve on the jury in this

case demonstrates the extent of the pretrial publicity had permeated the

community. Here out of 100 a large percentage more than %could be- impag/

tial and already formed their opinions. See, (RR.Vol.2/pg.31/22-25). These

panelist could not set aside their opionions is reasn enough to consider

the entire community 'infected" by the pretrial publicity and prejudice.

Thp inflammatory atmosphere and those actually seated were polsioned by

the others. For this reason said cause should be reversed and remanded,

and said former trial judge should be taken on vior dire for her acts and

ommissions. GROUND SEVEN:

INEFFECTIVE ASSISTANCE OF COUNSEL FOR ABANDONING PETITIONER

ACTED AS NO COUNSEL AT ALL: ACTING AS MERE FRIEND OF COURT.

Said counsel abandoned his Client at critical stage of the proceedings.

In the toality of representation by defense counsels', Mr. Mark Woerner,

Mr. Steve Schiwetz, and Mr. Mark Gonzales abandoned their client. Mr.

Woerner at the orjset of trial was not concerned about shackling of Client,

nor did any othei: attorney object- Furthermore, Mr. Woerner told the

11.
GROUND SEVEN CONT:

that his client was guilty, which nullified any defense in regard to

Count II/ and resulted in the jury bein^ biased. A strategy the Petitioner

did not approve of/ nor able to communicate his disbelief about such

remarks that infringed upon his persumption of innocence, the Supreme Court

has longed recgonized that 'the right to counsel is the right to effective

assistance of counsel'" under the Sixth Amendment/ Strickland v. Washington

466 D.S. 688 (1984); In this case, We find that the defease counsel did

not put up any meaningful defense during the punishment phase/ nor file

any,pretrial motion that Petitioner was never convicted of any felony in

this State or any other State/ See, V.T.C.C.P. art.42-12(d)(8)(c) states:

A defendant is eligible for community supervision under this section only

if before the. trial begins the defendant files a sworn ai6£i6ft"to the judge

that the defedant has not been previously convicted of a felony in this or

any other state/ and the jury enter in the verdict a finding that the infor

mation is true. See, (RR.Vol.2/pga9/l-I7). Because of the forceful argument

by State's attorney Mr. McCaig that Petitioner was not eligible for proba

tion/ Petitioner's attorney should have researched further in the same

code to ascertain that Petitioner was eligible for probation. Furthermore/

counsel did not reasonably argue on his client's behalf during punishment

phase/ espicially in regard to Count II. See/ (RR.Vol.5.pg.126/3-13). Furthe

-more/ defense counsel failed to investigate the extensive media coverage/

Television Documentary which featured Petitioner in family violence^ failed

to adequately prepare a defense/ nor subject the State's case to the advesa

rial testing process/ by having fellow police officer's who were having

illicit affairs with his wife there to testify. Nor did he interview them/

nor have them appear before the court/ Officers Noe Roel/ Emede Reyes/ Buzz

esparza/ Luis Rene Ozuna/ and Frank Estrada. Defense Counsel did produce

phone records.-See/ petitioner's appeal brief Exhibit "14-16"). That was

the extent of the preperatxon:for..the capital murder trial. Eortheraore/

although court ordered physcological testing of the Petitioner/ there was

no report by the psychologist included in the record/ nor was he called to

testify as to the Petitioner's mental state at the time of offense. Once

the attorney told the jury his client was guilty/ he was wholly unprepared

to make a platable defense of his theory/ and effectively undermined the

persumption of innocence in Count I and Count II. This was no defense at

all/ but a tactical retreat/ and pure abandoment of his client. Even grant

ing deference to counsel's choices/- we cannot conclude that he need-not

undertake further investigation/ "before proceeding with an argument he

was wholly unprepared to make. Burger/ 107 S.Ct. at 3126. The Court should

find elSarly established that Petitioner's counsels' so abandoned their

"overarching duty to advocate the Petioneir's cause/ that the State proceed10
GROUND SEVEN CONT:

-ing were almost non-adversarial. Informing the jury that his client

was guilty/ permeated that guilt thru both counts and destroyed any

persumption of innocence f or Gccurit: II - Counsel's actions in regard

to sentencing in Count II even more clearly indicate the abandonment

of his duty of loyalty/ by switching -from the jury to sentence/ to

judge/ and failed to put on any mitigating factors/ and failed to advo

cate his client's position. The most striking indication of counsel's

performance and failure to fufill his duty of loyalty to his client is

from his behavior at the trial itself. "Counsel at the summation of the

trial / counsel reffered to the difficulty his client had presented to

him. See, (RR.vol.5.pg.99 / line 20-25/ Pg.lOOllilne 1-20) . Counsel is in

fact telling the jury he could not present any mitigating eirCQmstances/

when evidence against his client is so overwhelming. In closing counsel

lamenated : (RR.Vol.5/pg.102/13-16). Petitioner's attorney did not simply

make poor choices; he acted with reckless disregard for his client's case.

Whatever the reason the record supports that counsel turned against his

client. There is no apperent reason for counseil's behavior/ although he

repeated many times that his client was guilty and how difficult this

case was. This conflict in loyalty unquestionably affected his represen

tation. A defense attorney who abandons his duty of loyalty to his client

and effctively helps the State in an effort to obtain a conviction suffers

from an obivious conflict of interest^ Sich an attorney/-like unwanted

counsel/ ''represent' the defendant only through a legal fiction." See/

Faretta v. California/ 422 D-S- 806#821 (1975). In fact an attorney is

burdened by a conflict between his client's interest and his own sympa

thies to the prosecution's position is considerably worse than an attorney

with loyalty to other defendants/ because the interests of the State and

the defedant are necessarily in opposition. As the Supreme Court has

assereted: "The right to effective assitance of counsel M thus the right

of the accused to require the prosecution's to survive the crucible of

meaniningfuii adversarial testing. . . [i]f the process losses its character

as confrontation between adversaries/ the constitutional guarantee is

violated." See# Cronic# 466 U.S. at 656-57. Petitioner urges the Court/

that reversable error has appeared from the record because of sadd coun

sel's deficient performance that prejudiced the outcome of the trial.

Said cause should be reversed and remanded.

Ground Eight:

S>fiT!DafM®^R;';S counsel for direct appeal FRED JIMINEZ COMMITTED lENEFFECASSISTANCE OF COUNSEL BY BLACING A FRAUD BEFORE THE COURT BY FILING

1 3.
GROUND EIGHT CONT:

FRIVOLOUS BRIEF, FOR SUCH ACTIONS MOTIVATED BY POLITICAL ASPIRATIONS^

NEPOTISM/ AND THE HIGH PROFILE NATURE OF THE CASE. THE COURT ASSIGNED

STEPHEN W. BYRNE AS APPEAL ATTORNEY/ RENDERING FRED JIMINEZ'S BRIEF MOOT

BY OPERATION OF LAW. STEPHEN W. BYRNE FORCED INDIGENT PETITIONER TO FILE

PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAWErejudice/ whether necessary or not/ is established under any applicable

standard. Petitioner was.charged with several crimes/ the State assi^^edf

counsel Fred Jiminez to represent him on his direct review of convictions.

Fred Jiminez's wife was the District attorney for Nueces County/ (Anna

Jiminez)/ whose office prosecuted the Petitioner. Becausg -of the conflict

of interest ,.iand the high profile nature of the case, said attorney filed

a frivolous v, brief/ knowing well that Petitioner's case was filled

with meritorious claims. Such insidious intent is demonstrated by the

fraudulent document foisted upon the Court as an Anders brief. Because

of the political aspirations of Attorney's wife and the high profile nature

of'.: the case/ who was at the time of the filing of brief embattled with

the State over corruption charges while she was in office/ said attorney

did not bring his legal-skill and knowledge to bear. Petitioner would

have succeeded . Because Stephen W.. "Brynd was the counsel chosen to repla

ce Fred Jiminez / because the court was not satisfied with Fred .jiminez's

representation. -The purpose of the SiuxaarAiriend guarantee: is to insure that

defendants are represented by counsel and not have to face lybrinth of the

criminal justice system unawares. Judicial scrutiny of cioxttk®!''^ performance

must be differential (highly)^ Petitioner urges the Court because -the

record was fully developed/ Petitioner should be allowed to proceed with

ineffective assistance of counsel claims as postulated by the opinion in

Trevino v. Thaler/569 U.S._(2013)(citation ommitted). Because of the con

flict of interest (See/ Exhibit "D" Appellate Brief)/ and attorneys abandon

ing etitioner there is a probability that the outcome would have been

different. Because revers.ible error has appeaared in the record,/ Petitione

urges the Court to allow him to take said attorneys on vior dire to further

develop the record/ as well as reverse and remand said cause. .

GROUND NINE: PETIiETIONER' S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY,

AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE

TIME OF OFFENSE.

Ciriminal Law Keynote-773: If evidence from any source raises the issue of

insanity, the trial court must include an instruction on insanity defense

in jury charge.V.A.A.C.P.art.46.03; V.T.C.A., Penal Code §8.01.

u

14.'
GROUND NINE CONT:

When considered with the facts and circumstances concerning an accused

and defense/ lay opinion testimony may be sufficient to raise the defense

of insanity. V-T.C.A./ Penal Code § 8.01. During the trial on the merits/

Petitioner's counsel raised the issue of Petitioner's mental state that

lead up to the commission of the offense. See/(RR.Vol.5/pg.99 line 25#pg.

100 line 1-2G).From the foregoing by Petitioner's counsel demonstrates

that he was of the opinion that his client "snapped." Which is eln off color

remark of insanity.Petitioner's attorney filed motion for psychological

testing which was granted by the court. See/ (CR-pg48). It appears from

the record that counsel was headed towards this defense/ then abandoned thi,

defense/ even thou that was the agreement between Petitioner and attorney.

Knowing that; Petitioner was a former Border patrol Agent/ got hurt on this

assignment/ suffered from Post Iraumatic Stress snydrome from this assign

ment. Also/ as an Alice Police Officer/ which greatly effected his physcological well being/ coupled with the fact that Petitioner's wife was having

multiple affairs with Petitioner's co-workers who were Police Officers.

Also/ the amount of stress that police officers' experience on a day to day

level/ such amount of stress police officers' on a national level is well

documented, and the amount of domestic violence involving officers' and

members of the armed Forces in like situations. Petitioner's attorney was

derilict in his duty for not preparing for this defense, soi if by moral

insanity it be understood only a disorder or perverted state of affections

or moral powers of the mind/ it cannot soon be disgarded as -affording any

shelld from punishment for crime: if it can be truly said that one indulges

in violent emotions/ such as remorse/ anger/ shame/ grief/ and the like is

afflicted with homocidal insanity/ it would be diffucult/ yes/ impossible/

to say. where sanity ends/ and insanity begins* We say to you/ as a result of

our refelections on this branch of the subject/ that if the prisoner was

actuated by an irresistable inclination to kill/ and was unable to control

or subjugate his intellect... he is entitled to acquittal. (|te Justice

PaxsoH/ 88 PA.291/Jan.20/1879). What then is that form of diease/ Dominated

Ho'irtocidal Mania/ which will excuse one for having committed a Murder?

Cheif justice Gipson calls it that unseen ligament pressing on the mind

and drawing it to the consequences which it under coecerion which/ while

it results are clearly percieved-/ is incable of resistance-aii invisible

inclination to kill. It was error for trial counsel not ask for instructione

punishment stage of trial due to insanity/ furthermore/ Petitioner's attor

ney and State's attorney Ms. Dorsey put the charge together/ so it was

ineffective assitance of counsel that his attorney subjected his cl

to such eregrious harm both great and apperant. Ex parte Duffy/ - /

is:.
Ground Nine Cont:

S.W.2d 507 (T6x.Criin.App.1980) . This standard requires that the court

evaluate complaint of;ineffective assistance at the punishment Stage deter

mining first/ whether counsel was reasonably likely to render ineffective

assistance of counsel/ and second/ whether counsel reasonabley rendered

ineffective assistance. The record is replete with the litanies of the

grave and fatal errors committed by counsel in this case- These errors

jctp^ged by the totality of the repesentation / denied him a fair trial. Merly showing that they had some conceivable effect on the proceedings is

inadequate. Strickland/ 466 U.S. at 693. Petitioner urges the Court to

rev.- said cause and remand with instructions . ,

CONCLUSION

Petitioner would urge the Court/ that he falls under the narrow ruling in

Trevino Th4ier/ wherein the record was fully developed and the errors

of his attorney were plain and apperrant. Said trial was overwhelmed by

media and public pressure/ which resulted in the impossibility to seat a

fair and impartial jury^/Petitioner was forced to wear leg shackles during

the entire trial with no demonstrative reason by trial judge/ and counsel

did not even object/ because he was assisting the State in helping to

obtain -a conviction -Counsel rendered ineffective assistance on numerous

occasions/ destroying Petitioner's persumption of innocence when he decided

to abandon the temporary insanity defense and just throw his client to the

wovles. Petitioners appellate attorney completely missed the double jeopar

dy issue/and affadavit and information not being signed, as well as was

motivated by nepotism and other factors and filed a frivolous brief.

From the numerous litanies and acts and ommissions of counsels' in this

case.' Said cause should be reversed and remanded.

PRAYBB

Petitioner Prays that the Court grant him this PDR and any and all relief

requested herein.

CERTIFICATE OF SERVICE

A true and correct copy was hand delievered to the Nueces County district

attorney Hark Shurka on 7/ /15. At the litieces County Courthouse/ 901

Leopard St- Corpus Christi# Texas 78401/ also Atty/General P.O.Box 12405/

Aastin/ Texas 78711.

Respectfully ^ubnj^tte^

By:

Jose (^nzales All #1832029

James v. Allred unit

201 FM 369 N.

Iowa Park/ fexas 76367

16-.
APPENDIX
CHIEF JUSTICE

ROGELIOVALDEZ

JUSTICES

NELDAV. RODRIGUEZ

DORI CONTRERAS GARZA

G!NAM.BENAV!DES

GREGORY T. PERKES

NOPAL LONGORIA

CLERK

DORIAN E. RAMIREZ

Coitrt of

tS^irteentj) Bisttrict of tlDexasi

NUEOES COUNTY COURTHOUSE

901 LEOPARD. 10TH FLOOR

CORPUS CHRISTI, TEXAS 78401

361-888-0416 (TEL)

361-888-0794 (FAX)

HID/M.GO COUNTY

ADMINISTRATION BLDG.

100 E. CANO. 5TH FLOOR

EDINBURG, TEXAS 78539

956-318-2405 (TEL)

956-318-2403 (FAX)

Hon. Adoifo Aguilo Jr.

Assisfent DistrictAttorney

Nueces County Courthouse

§©TteDprard - Room 206

Corpus Christi, TX 78401

* DELIVERED VIA E-MAIL *

Hon. Mark Skurka

District Attorney

901 Leopard Street, Room 205

Corpus Christi, TX 78401

* DELIVERED VIA E-MAIL *

August 14, 2014

Hon. Fred Jimenez

Attorney At Law

509 Lawrence, Suite 301

Corpus ChristIi TX 78401 * DELIVERED VIA E-MAIL

Mr. Jose Gonzales III

TDCJ #1832029

James V. Allred Unit

2101 FM 369 North

Iowa Park, TX 76367

Re: Cause No. 13-13-00.011-CR

Tr.a.No. 11-GR^14W ,

Style: JOSE GONZALES III v. THE STATE OF rEXAS

Enclosed please find the opinion andjudgment issued by the Court on this date.

Very truly yours,

DER:dsr

Enc.

cc:

Dorian E. Ramirez, Clerk

State Prosecuting Attorney (DELIVERED VIA E-MAIL)

105th District Court (DELIVERED VIA E-MAIL)

Hon. Patsy Perez, District Clerk (DELIVERED VIA E-MAIL)

Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region,

(DELIVERED VIAE-MAIL)
THE THIRTEENTH COURT OF APPEALS

13-13-00011-CR

JOSE GONZALES III

V.

THE STATE OF TEXAS

On Appeal from the

105th District Court of Nueces County, Texas

Trial Cause No. 11-CR-4141-D

JUDGMENT

THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should beAFFIRMED. The Court

orders the judgment of the trial court AFFIRMED.

We further order this decision certified below for observance.

August 14, 2014
NUMBER 13-13-00011-CR

OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSE GONZALES III,

THE STATE OF TEXAS,

On appeal from the lOSth DistrictCourt of

Nueces County, Texas.

Appellant,

Appellee.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza and Benavldes

Memorandum Opinion by Justice Garza

Ajury found appellant Jose Gonzales III guilty of capital murder, a capital felony

offense, seeTex. Penal Code Ann. § 19.03(a)(2), (b) (West, Westlaw through 2013 3d

C.S.), and burglary of a habitation to cpmn^it afelony (aggravated assault), afirst-degree

felony offense. See id. §30.02(a)(3), (d)(1) (West, Westlaw through 2013 3d C.S.). The

trial court assessed appellant's punishment for the capital murder offense atlife without
parole, see id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.), and assessed

punishment for the burglary of a habitation offense at life Imprisonment, with the

sentences ordered to run concurrently. Appellant's court-appointed counsel hasfiled an

Anders brief. See Anders v. Califomia, 386 U.S. 738, 744 (1967). We affirm.

I. Anders Brief

Pursuant to Anders v. Califomia, appellant's court-appointed appellate counsel

has fired a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of error upon which an appeal can be predicated. See id.

Counsel'sbrief meets the requirements ofAnders as itpresents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 262 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief

need not specifically advance 'arguable' points of error if counsel finds none, but it must

provide record references to the facts and procedural history and set out pertinent legal

authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus

Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503,510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.

June 25, 2014), appellant's counsel carefully discussed why, under controlling authority,

there is no reversible error inthe trial court's judgment. Counsel has informed this Court,

in writing, that counsel has; (1) notified appellant that counsel hasfiled an Anders brief

and a motion to withdraw; (2) provided the appellant with copies of both pleadings; and

(3) informed the appellant of appellant's rights to file a pro se response, and review the

1The Texas Court of Criminal Appeals has held that "the pro se response need not comply with

the rules of appellate procedure in order to be considered. Rather, the response should identify for the

court those issues which the indigient appellant believes thecourt should consider in deciding whether the

2
record preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 2014 WL

2865901, at *3, Stafford, 813 S.W.2d at 510 n.3: see also In re Schulman, 252 S.W.3d at

409n.23.

The record shows that appellant was provided a copy of the record on October 21,

2013. After this Court granted several motions for extension of time in which to file his

pro se response, appellant filed his pro se response on May 23,2014.

II. Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75,80 (1988). When an Anders brief and a subsequent pro se response are filed, a court

of appeals reviews the entire record, and: (1) detemriines that the appeal is wholly

frivolous and issues an opinion explaining that it finds no reversible error; or (2)

determines that there are arguable grounds for appeal and remands the case to the trial

court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826^

27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not

reviewthose grounds until after new counsel has briefed those issues on appeal. Id.

We have reviewed the entire record, counsel's brief, and appellant's pro se

response, and we have found nothing that would arguably support an appeal. See id. at

827-28 ("Dueto the nature ofAnders briefs, by indicating inthe opinionthat itconsidered

the issues raised in the briefs and reviewed the record for reversible error butfound none,

the court of appeals met the requirement ofTexas Rule ofAppellate Procedure 47.1.");

case presentsanymeritorious issues." Inre Schulman, 252 S.W.Sd 403,409 n.23(Tex. Crim. App. 2008)

(quoting Wilson v. State, 955 S.W.2d 693,696-97 (Tex. App.—Waco 1997, no pet.)).

3
Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the

judgment of the trial court Is affinmed.

III. Motion Tb Withdraw

In accordance with Anders, appellant's attorney has asked this Court for

pemiission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jefferyv. State, 903 S.W.2d 776, 779-80

(Tex. App.—Dallas 1995, no jaet.) ("[I]f an attorney believes thei appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attomey must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's

motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered

to send a copy of this opinion and this Court's judgment to appellant and to advise him of

his right to file a petition for discretionaiy review.^ See Tex. R. App. P. 48.4; see also In

re Schulman, 252 S.W.3d at 412 n,35: Ex parte Owens, 206 S.W.3d 670,673 (Tex. Crim.

App. 2006).

DORI CONTRERAS GARZA,

Justice

Do not publish.

fEX.-R.App.P.47.2<b).

Delivered and filed the

14th day of August, 2014.

^No substitute counsel will be appointed. Siiould appellant wish to seel<further review of this case

by the Texas Court of Criminal Appeals, he must either retain an attomey to file a petition for discretionary

review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed

within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion

for en banc reconsideration that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for

discretionary review must be filed with the clerk of the Court of Criminal Appeals, see Tex. R. App. P. 68.3,

and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See Tex: R. App. P.

68.4.

4
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