IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS AUSTIN, TEXAS

EX PARTE § § § NO. WR-84,092-01 § RICHARD HAMER §

APPLICANT’S OBJECTIONS TO FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO THE HONORABLE JUDGES OF SAID COURT: NOW COMES the Applicant, RICHARD HAMER, and submits the following objections to the Findings of Fact, Conclusions of Law and Order entered in this case and would show the Court the following:
I. The trial court failed to enter any independent findings or conclusions in this case. Rather, the trial court simply signed an order adopting the state’s proposed findings. Art. 11.07, Tex. Code Crim. Proc. requires the Court to make its own findings, and not simply rubberstamp what the state proposes.
II. The trial court signed the state’s findings after the state obtained an affidavit from defense counsel for Applicant in the trial court. Applicant was not given an opportunity to respond to the affidavit. A response to the affidavit of defense counsel has been filed.

Applicant’s Objections to Findings of Fact, Conclusions of Law and Order - Page 1 WR-84,092-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/29/2015 10:06:52 AM Accepted 10/29/2015 10:16:22 AM

ABEL ACOSTA CLERKIII.

Moreover, an evidentiary hearing is necessary in this case. Applicant has raised issues
in this writ application regarding inef f ective assistance of counsel. An af f idavit f rom counsel has been presented. However, Applicant requests an evidentiary hearing where he will have

an op p o r t u n i t y to cross-exami ne counsel f or Applicant. Ex parte Byars , 176 S.W .3d 841 (Tex. Crim

. App. 2005) (Presiding Judge Keller recognizing that the m ost ef f ective way of d e t e r m ining the reliability of witness testim ony is through the crucible of cross-ex a m i n a t i o n )

. IV. Additionally , Applicant objects on the b a s i s that the Court has not seriously considered, or adequately analy zed, his argum ents. Ground One alleged that Ham er received inef f ective assistance of

counsel. He was involved in a vehicle accident that resulted in the death of another person. Def ense counsel advised Ham er to enter an open plea of guilty to m anslaughter t o the court and allow the

court to set punishm ent. The court set punishm ent at 15 y ears in prison. T h e r e was a legitim ate and m eritorious def ense to be presented to the m anslaughter charge which def ense counsel did n o t present. This def ense was that, if Ham er was guilty at all, it was of the of f ense of crim inally

negligent hom icide, rather than manslaughter. Counsel was inef

f ective in advising Ham er to plead guilty to m ansl a u g h t e r and not f ully explaining his options to him

. Had counsel f ully explained the evidence and dif f erence between the charges of m anslaughter and crim inally negligent hom icide, Ham er would not have entered a plea to m anslaughter. Had counsel f ully explained the evidence in this case, Ham er would have entered a not guilt y p l ea and taken the case to trial. Under the f acts of
A pp licant’ s Obj ections to Findings of Fact, Conclus ions of Law and Or der - Pa ge 2this case, Ham er would not have been f ound guilty of m anslaughter or received 15 y ears in prison. Ground Two alleged that Ham er’s g u i l t y p l ea was involuntary

. In the case at bar,
Ham er entered a guilty plea without knowing what the State was required to prove and witho u t k n o w i n g t hat the evidence in f act showed that he was guilty only of the lesser of f ense of crim inally negligent hom icide. He was clearly not aware of the f ull circum stances concerning the law and f

acts of this case and theref ore his plea should be set aside. Ham er would not have entered the plea in this case had he been f ully aware of all of the f

acts, law and circum stances. A guilty plea m

ust be voluntarily and knowingly entered in order to be valid. W hen

a court entertains a plea agreement, it m ust assure itself that the plea is entered voluntarily and knowingly

. A def

endant is required to be inf orm ed of all of the direct consequences of the plea. See Fielder v. State , 834 S.W .2d 509 (Tex. App. - Ft. W orth 1992 ) ; Ex parte Chandler , 684 S.W .2d 700 (Tex. Crim . App. 1985).
I n Brady v. United States , 397 U.S. 742, 90 S.Ct. 1463 (1970), the Court s t a t e d t h e f ollowing: “That a guilty plea is a gr a v e and solem n act to be accepted only with care and discernm ent has long been recognized. Central to the plea and the f oundatio n f

o r entering judgm ent against the def endant is the def

e n d a nt’s adm ission in open court that he com m itt e d t h e a c t s charged in the indictm ent. He thus stands as a witness against him self and he is shielded by the Fif th Am endm ent f

rom being com

pelled to do so--hence the m inim

um requirem ent that his plea be the voluntary expression of h i s own choice. But the plea is m ore than an adm ission of past conduct ; i t i s t h e def endant’s consent that judgm ent of conviction m ay be entered without a trial--a waiver of his right to trial bef

ore a jury or a judge. W aivers of constitutional rights not only m

ust be voluntary but m

ust be knowing, intelligent acts done with suf f icient awareness of

the relevant circumstances and likely consequences.”
A pp licant’ s Obj ections to Findings of Fact, Conclus ions of Law and Or der - Pa ge 3In the case at bar, Ham er was not aware of the f ull consequences of his plea and the
f act that, if

he was guilty , it was only a lesser of

f ense. Thus, his plea was involuntary

. V. Based on the f

oregoing, Applicant pray s that the Court reject the f ind i n g s , conclusions and order in this case. Respectf ully subm itted, /s/ Gary

A. Udashen GARY A. UDASHEN Bar Card No. 20369590 SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 f

ax Attorney f or Applicant

CERTIFICATE OF SERVICE I, th e u n d e r s igned, hereby certif y that a true and correct copy of the f oregoing Applicant’s Objections to Findings of Fact, Conclusions of Law and Order was m ailed to the Harris County

District Attorney ’s Of

f ice, 1201 Franklin Street, Suite 600, Houston, Texas 77002, on this the 29th day of October, 2015. /s/ Gary A. Udashen

GARY A. UDASHEN

A pp licant’ s Obj ections to Findings of Fact, Conclus ions of Law and Or der - Pa ge 4