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Clerk

Court of Criminal Appeals of Texas

P.O. Box 12308

Austin, TX 78711

Jeremy Crespin

TDCJ No. 1807429

Hughes Unit

Rt. 2, Box 4400

Gatesville, TX 76597

February 28, 2015

RE: WR-82,141-04 and W^-82,141-03

Dear Clerk:

PLEASE FILE THE ENCLOSED MOTION IN BOTH OF THE ABOVE REFERENECED

CASES (WR-82,141-04 and WR-82,141-03). '• 1

Please find enclosed one original of "Applicant's PRO SE

Motion for Leave to Suggest Court to Reconsider, On Its Own Initiative,

the Denial of Relief in These Writ Application."

Please FILE it in both cases and present it to the Court for

action.

Thank YOU for your time and assistance in this mater

Respectfully,

JC/swd

cc: FILE

DA

x

Jerer^ Crespin

Applicant PRO SE

CresDinJ'
CCA WRIT NO(S). WR-82,141-03 AND WR-82,141-04

§ IN THE COURT OF CRIMINAL

EX PARTE §

§ APPEALS OF TEXAS

JEREMY CRESPIN §

§ AT AUSTIN, TEXAS

APPLICANT'S PRO SE MOTION FOR LEAVE TO SUGGEST COURT TO RECONSIDER,

PWl OWN INITIATIVE, THE DENIAL OF RELIEF IN. THESE WRIT APPLICATIONS

TO THE HONORABLE JUDGES OF THIS COURT:

Applicant, Jeremy Crespin, first received.a copy of the convicting

court's Findings of Fact and Conclusions of Law ("Findings")

on Monday, February23, 2015. This Court denied felief in these

writ applications on Wendsday, February 25, 2015. Those 2 days

were not sufficient, time for Applicant to file OBJECTIONS to

the convicting Court's Findings.

Priorly, in a "motion to stay", Applicant had asked this

Court to require the convicting court clerk to provide Applicant

with a copy of the Findings. It appears that, rather than resolve

that concern in the open, this Court utilized back channel (and

ex parte) communications with the convicting court officals and

"dismissed" the motion to stay. The result being, that while

Applicant (thankfully) received a copy of the Findings, as a

pratical matter Applicant was not given 10 days to file OBJECTIONS

to those findings (as was requested in the motion to stay). See,

Tex. R. App. Proc, 73.4(b)(2).

Thus, Applicant request leave to suggest that this Court

RECONSIDER, on its own initiative, the denial of relief in these

article 11.07 writ cases. See, Tex. R. App. Proc.,79.2(d).

And, that upon reconsideration, or rehearing, that this Court

consider Applicant's OBJECTIONS to the convicting court's Findings.

Primarly, this Court had previously determined that Applicant

had alleged facts -that, if true, might entitle him to relief and
that additonal facts were needed. See, CCA Order in Writ No.

wr-82,141-03 (12/17/2014). Yet., the only additonal facts gathered

was trial counsel's "answer" which contains no facts relative

to the grounds raised in the writ applications.- Thus, the Convicting

court's Findings are not supported by the writ record before

this Court. See. JEx parte Evans, 964 S.W.2d 643, 648 (Tex.Crim.

App.l998)("Although the findings indicate that documents ...

corrob.ra.te-Appl-icant'.s allegations.,...our recorjLdoes not include

any such documents. The record is devoid of anp evidence..."

to support the trial court's findings.) Worse still, the convicting

court puportsto make a credibility determination:about trial

counsel; however, even if the convicting court were, privy to !

confidential attorney-client communications between trial counsel

and other defendants, the advice given to other defendants does

1

not.support Findings on what advice counsel gave to Applicant.

See, Pension v. Ohio, 488 U.S. 75,.. n. "(1988)(very real

concern that counsel can just be lazy in one case is one reason

an Anders.brief is necessary). Applicant's OBJECTIONS to the

convicin^ court's Findings^follow: .

1) Irrespective of what happen in the juvenile court,

the convicing court did not have jurisdiction to enter

the Judgment of convictin in writ No. WR-82,141-03

because Section 8.07 of the Penal Code prevents prosecution

and conviction of.any one under the age of 15 for a

second degree -4^oJ^W1 and on the date of this offense, . as recorded in the Judgment, Applicant was under the

age of 15. See, Ex parte Waggoner, 61 S.W.3d. 429,

431 (Tex.Crim.App.2001)

2) An 11.07 writ application seeks relief from a

final felony Judgment and, therefore, it is the date

of the offense recorded in the Judgment that matters;

which, requires that the law in effect on the date

of the offense, as recorded in the Judgment, to be

applied (and in 1994 Applicant did not have to object, prior to trial, to problems with age restrictions). See,

Waggoner, 61 S.W.3d at 431 n.2.
3) The express findings set out.on the face of the

juvenile court Order limited the transfer to conduct

that happen when Applicant was 16 years old; therefore,

inspite of any "on or about" language the juvenile

court never waived its exclusive jurisdiction over

conduct that happen on the date of the offenses, as

recorded in the Judgment, and the convicting court

did not have any jurisdiction to enter the Judgments

of conviction in Writ No(s). WR-82,141-03 and WR-82,14104.

See, Moon v. State, No. PD-1215-13 (Tex.Crim.App. - December 10, 2014)(PUBLISHED)(insufficiency of the

evidence to be measured by the express.findings set'

out on the face of the juvenile court Order); Taylor v.

State, 332 S.W.3d 483, .491-492 (Tex.Grim.App.2011)

(language in jury instruction could limit.the "on or

about" dates the jury could consider to dates when

the defendant was over 18 years old.) .

4) Applicant wasvNOT required to cite law in the writ

application, rather law must be cited in the memorandum

of law, and in his memorandum of law Applicant did

cite to Richardson.v. State, 770 S.W.2d 797, 799 (Tex.

Crim.App.1989) which relies upon Section 54.02(g) of

the Family Code to prohibit the separate prosecution,

or rather the retroactive separation of a companion

case out of the underlying juvenile court order. See,

"Instruction" for 11.07 writ application form (rev. 01/14/2014)

5) The statue, Penal Code 3.01, itself threatened •

stacked sentences of these two separatly indicted cases

and, regaurdless of any other promises, by pleading

guilty in exchange for, 5 years deferred adjudication

probation, Applicant avoided.the threatened result.

6) There is a fourth category, that creates ex post

facto laws, mainly laws that "permit conviction on

quantum of evidence, where that quantum, at the time

the new law was enacted, would have been legally insufficient"

^and under the statue of limitations in effect on the

date of these offense^ at the time of trial there would

-have-been -i-n-s-ltf-f-i-c-i-en-t evidenee—t-o- sustain- the-Gonvic-tions

-SeeVXarmeTI v". Texas; t20^STCr:-l&20, 1&40(2000) ;- - " -

Phillips v. State, 362 S.W.3d 606, 610 (Tex.Crim.App.2011).

(acknowledging fourth category); See, also, ie., Lemell v.

State, 915 S.W.2d 486, "488 (Tex .Crim. App .1995) (failure

to prove statue of limitaions dates results in reversial

for insufficient evidence).

1. Moreover, while the convicting court is allowed to use personal, recollection

to resolve disputed facts (under Article 11.07 § 3(d)) ~ that provision refers

to personal recollection about the case at hand NOT any general knowledge the

Judge might have, especially when there is nothing in the writ record before

this Court to support those findings. See, Evans,. 964 S.W.2d at 648.
7) Trial counsel's "answer" contains no facts relative

to the grounds raised in the writ application and,

thus, the convicting court's Findings concerning ineffecitve

assistance of counsel are not supportted by the record

before this Court. See, Evans, 964 S.W.2d at 648;

See also, Perillo v. Johnson, 79 F.3d 441, 445, 451

(5th Cir 1996)(additional discovery and evidentiary

hearing were required, in part,, when counsel's affidavit

did not squarely address the relevant issues).

8) The convicing court made imporoper jumps in logic

in its Findings, to include:

a) Trail counsel's conduct in other cases

proves what knowledge of the law counsel - -has -gene-rally, what-investigation-counsel

~di~d "±n~~t'he's"e case~s7"~and-what—advice counsel

gave to Applicant.

b) The fact that trial counsel discussed

some unspecified strategies with Applicant

proved that counsel actually discussed matters

of law that Applicant complains counsel did

not in the writ applications.

c) The fact that trial counsel was ready

to proceed to trial proves that counsel correctly

advised Applicant about the guilty plea.

d) The fact that Applicant choose to plea

guilty proves that trial counsel either did

not have to provide adequate advice about

the guilty plea or that counsel did provide

correct advice.

e) That just because Applicant was prescribed

anti-psychotic medications that it proves

trial counsel was aware of that fact^ and

that counsel inveestigated that fact»5> impact

upon Applicant's competency.

9) The convicting court never resolved numerous controverted

previously unresolved facts, to include:'

a) Was the complainant present and available

to testify on June 15, 2010? See, Applicant's

Exhibit "A" (Affidaivt of Debra Crespin).

b) Did trial counsel tell Applicant whether

the complainant was or was not available

to testify on June 15, 2010?

c) Did trial counsel advise Applicant that

the State could obtain a conviction without

the testimony of the complainant?*

d) Did trial counsel advise Applicant that

the State could use the "out-cry" statement

against Applicaat(to obtain a conviction)?

e) Did trial counsel advise Applicant that

the State could use the recorded phone call

between Applicant and the complaintant to

either help convict him or at the sentencing

hearing to obtain a harsher sentence?

f) Regardless of what the plea papers state,

did trial counsel advise Applicant that the
defferred adjudication probation had severe

disadvantages that the 5 years in prison

plea bargain did not have?

g) Did trial counsel investigate at all

the problem with,the dates between the juvenile

court Order and the indictments and did counsel

advise Applicant that if the State only proved

at trial the 1994 dates and the defense made

the State "elect" which dates it was seeking

a conviction for -- that there was a chance

to prevent the convietion(s), or at least

to prevent a stacked sentence.

h) Was trial counsel aware that Applicant

had mental helth problems and was taking

prescribed anti-psychotic medication AND

did trial counsel perform any investigation

into Applicant's competency?

10) The police believed that Applicant's demeanour

during the recorded phone call between Applicant and

the complainant was incriminating and the recording

could have been used at sentencing; therefore, the

recording should have been supressed when Applicant

had invoked his right to counsel and, thereafter,

never waived his right to counsel. See, Rhode Island v.

Innis, 100 S.Ct. 1682, 1689 (1980)(anytype of incrimination

is suffienct. to require suppression).

11) No where does Applicant claim that the registration

requirment was an ex post facto violation; rather,

at all times, becuase Applicant was under the age of

17 on the date of the offenses., Applicant was only

required by law to register once a year --•• never every

90 days -- and the appeal was affirmed soley upon the

failure to register.every 90 days (the amendment of

the statute of limitaions was a separate error of counsel)

AND, insufficient, or no evidence, claims may be raised

for the first time on appeal. See, Tex.Code. Crim.

Pore, art. 62.001(6) and 62.058.

12) Yet, the convictingf;:court failed to aquire a response

from revocation counsel or revocation appellate counsel.

Thus, not.only are the convicting court's Findings not supported

by the record, they continually misconstrue Applicant's grounds

forvrelief.and: the applicable law.. This Court should not have

denied relief based upon the Convicting court's Findings. Indeed,

it would be a denial of DUE PROCESS to deny relief based upon

such poor Findings. See ie., Townsend v. Sain, 83 S.Ct. 745

(1963) (state habeas court must provide full and fair opportunity
to develope facts and have the factual basis of calims considered),

overruled in part on other grounds, Keeney v. Tamayo-Reyes, 112 S.Ct.

1715 (1992)(n.5 still requires full factual develope in state court

proceedings), Ex parte Young, 418 S.W.2d 824 (Tex.Grim.App.1967)

(same); See also, (Michael) Williams v. Taylor, 120 S.Ct. 1479 (2000).

DISCUSSION OF ONLY TWO OBJECTIONS

Rather than represent arguements on each and every one of

Applicant's OBJECTIONS, Applicant will focus on the convicting

court's lack of jurisdiction to enter the Judgments and that

the writ record before this Court does not support the convicting

court's Findings. (Applicant has filed numerous pleadings addressing

the content of the OBJECTION^ to include, a REPLY to the State's

Response, A REPLY to this Court's Order of 12/17/2014, a Motion

to STRIKE Trial Counsel's Response, and, of course, the original

memorandum of law.)

JURISDICTION TO ENTER JUDGMENTS

The convicting court's Findings appear to conclude that

because the "proper" date for the offenses are in September 1996,

when Applicant was 16 years old, that these is nothing wrong

with these convictions. It is correct that it will be important

to focus on the conduct when Applicant was 16 years old. However,

the Findings (or conlcusions) overlook that it is the date in

the Judgment(s) that will determine if these convictions are

improper. Especially, when the only evidence to support the

Judgments are the judical confessions that admit to offenses

in Septmber 1994 (over which the convicting court had no jurisdiction)

Applicant is entitled to RELIEF.
Date In Judgments Matter

An 11.07 writ application seeks relief from a final felony

judgment. See, Tex. Code Crim. Proc, art. 11.07 § 1... The Judgments

in these cases record the dates of the offenses, as .required

by law, as September 1994. See, Tex. Code Grim. Proc, art.

42.01 §1(14). The only eviednce introduced' at trial were the

judical confessions, and they admit to the offenses happening

in September 1994- -Thus, the -dates_t.ha.t- mater in .these .cases. _.. .

~2 " "~" are the dates in the Judgment. At this point, the dates in the

juvenile court order and the indictment, are immaterial.

Date in Judgments = Applicable Law

The law is already establishes by this Court that for offense^

that happen in 1994, there is no requirment to object to a district

court's lack of jurisdiction based upon age-related reasons.

See, Waggoner, 61 S.W.3d 431 n. 2. Thus, this Court, and the

<oncivting court, were incorrect to consider whether Applicant

objected under Article 4.18(b)(1). That statue does not apply

to these Judgment that Applicant is seeking relief from.

Judgment in WR-82,141-03 is VOID

Moreover, no matter what happen in juvenile court, the convicting

court had no jurisdiction to convict Applicant of an offense

that'happen when he was under 15 years of age. See, Tex. Penal

Code § 8.07; See also, Acts 1975, 64th Leg, p. 2158, ch. 693.

Thus, this Court's own case law establishes, that the Judgment

in Writ No. WR-82,141-03 is VOID. See, Waggoner, 61. S.W.3d at 431.

Did "White Card" Overrule Waggoner?

This Court should not summarly overrule Waggoner, this Court's
established precedent, with a "white card" denied without written

order.

Application of Legal Theories = WR-82,141-04 VOID

Thus, established precedent requires reflief from the Judgment

in WR-82,141-03. Yet, it does take some application of leagal

theories to determine that the Judgment in WR-82,141-04 is VOID.

There are several legal theories under which to determine that

this Judgment is VOID (which have been discussed in privious

pleadings); but, only one legal theory will be addressed here.

Moon v. State = Face of Juvenile Court Order Matters

Just recently, this Court has held that the express findings

set out on the face of the juvenile court's Order are controlling.

See, Moon, PD-1253-13 (applying Family Code § 54.02(h)). The

face of the juvenile court's Order in these cases expressly set

out that the juvenile court was only transfering conduct, that

happen when Applicant was 16 years old and that happen on or

3

about September 1, 1996.

Conduct Not Person Transfered

While it is true.that an indictment, and conviction, following

a transfer from the juvenile court may be based upon any conduct

that the juvenile court transfered -- it is only conduct, not

a person, that is transfered. See, Livar v. State, 929 S.W.2d 573,

574 (Tex.App. - Ft. Worth .1996)(following Ex parte Allen,

618 S.W.2d 357, 361 (Tex.Crim.App.1981(Op. on reh'g). Thus,

2. See, Ruiz v. State, 499 S.W.2d 299 (Tex.Crim.App.1973)(under prior version

of Article 42.01 the date of the offense did not matter unless it reflected the

conviction was barred by statute of liomitaion AND AS LONG AS THE DATE WAS IN

AGEEMENT WITH THE JUDICAL CONFESSION). It could be argued that under the present

version of Article 42.01 the date of offense does matter and espcially when it

is necceassary to determine the applicable law and other material matters AND

that the date in the Judgement must match the JUDICAL CONFESSION.
the express findings set out on theface of the juvenile court's

Order work as limiting language that limits the conduct that

is transfered. See, Taylor, 332 S.W.3d at 491-492. Therefore,

inspite of any "on or about" language in either the juvenile

court's order or the indic^»frt -- the only conduct the convicting

court had jurisdiction over was from when Applicant was 16 years

old. Id. The juvenile court never waived its exclusive jurisdiction

over any conduct that happen in September 1994 (the dates in

the Judgments and Judical Confessions). Therefore, the Judgewrrt

in Writ No. WR-82,141-04 for an offense that happen on Septmeber 1,

1994 is VOID (as well as the Judg&wrrt in WR-82,1.4-lfB). Applicant

is entitfiled to RELIEF.

FINDINGS UNSUPPORTED BY THE RECORD!.

Is there any doubt that even when the state does not have

to offer any post-convction relief, that once the state chooses

to offer post- conviction relief procedures applicant's are entitled

to DUE PROCESS in using those procedures? Applicant has not te^

<% afforded DUE PROCESS when the trial court continualy misconstrued

his grounds for relief and failed to allow Applicant an opportunity

to gather additional evidence to support his grounds for relief.

For instance, this Court had priorly determined that Applicant's

grounds that revocation and revocatioi^aappellate counsel were

ineffective to fail to object to the revocation of probation ibased

upon the sex offender registration requirments "if true, might

entitle him to relief." See, CCA Order in WR-82,141-03 (12/17/2014).

Yet, when the convicting court's Findings misconstued that ground

as some type of complaint about an ex post facto law, this Court

did not revisit its original determination that there was a vaild

calim made in that grounds*
No Facts in Trial Counsel's "Answer"

The simple fact is that trial counsel's "answer", that is

devoid of any supporting facts, can not support any Findings

of Fact.. See, Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.

2008)(no deference to findings and conclusions that are not supportted

by the record). The only "fact" in trial counsel's "answer"

is that counsel "was able to secure [Applicant] a five year probation

which.he quickly._.v.iolated." (emphasis a_dded) . This fact only

serves to affirm, not refute, Applicant's grounds. Applicant's

most basic complainant is that trial counsel, was so pleased with

himself at securing the most lenient, plea bargain allowed by

law, that counsel did not fell the need to explain to Applicant

little things like the differences between regular "probation"

and deferred adjudication probation. In short, counsel's

response, shows that, once again, this case is not imporant enough

to merit his precious time to eVplain the relevant facts and

law. How on earth such an "answer" from counsel can support

the Findings is lost upon Applicant.

Not About Credibility

All the convicing court did was find that trial counsel

was credifable. Okay, great. But, what facts did counsel diclose

that were creditable? Only the one.-- that'he secured the most

3. The juvenile court's Order limits the conduct in .WR-82,141-03 to exactly

happening on September 1, 1996 (not "on or about").

4. The record also does not support the convicting court's<finding that,the

plea papers explained that if Applicant was placed on.deferred adjudication

probation he could be sentenced anywhere within the applicable range. First, at

the time of the plea Applicant did NOT know the correct termilogy. And what the

plea papers actually say is that Applicant was pleaing to "Deferred community supervision for 5 years" and if "unadjudicated community supervision" were violated

he could be sentenced anywhere within the range. NEVER DO THE PLEA PAPERS

COMBINE THE TERMS "DEFERRED" and "UNADJUDICATED". Thus, Applicant did not

understand, from the plea papers, that the "probation" he was agreeing to

could result in a LIFE sentece if revoked. ; . inrio\/ n ; *. 5. See, Ex parte Imoudou, 234 S.W.3d 866, 871 n.4 (Tex.Crim.App.l992)(a lenient

sentece does not refute ineffective assistance), Ex parte Langley, 833 S.W.2dl41,

144 (Tex.Crim.App.1992)(same).
lenient plea bargain allowed by law. Thus, the resolution of

these cases is NOT about credibility. It is about the lack of

facts to support any Findings made by the convicting court.

Sure, there are some facts disclosed by the trial record.

But, it is those exact proceedings that Applicant has.raised

as being Consitutinally infrim. Meaning, whatever was said on

the record and in open court is NOT inline with the previously

unknown, and confidential, communications between Applicant and

trial counsel.. Thus, the trial record does not. resolve the disputed

facts -- it only makes the facts disputed. It is the convicwrt^

court's duty to gather additonal, facts to resolve the disputed

facts.Townsend, 83 S.Ct. at 757.

CONCLUSION

And, that is just what this Court has already had to Order

the convicting court to do -- gather additional, facts. Yet, I

trial counsel's "answer" is not sufficient additonal facts to

resolve the controverted, previously unresolved facts material

to the legality of Applicant's confinement. Thus, the writ record

doeSnot support the Findings made by the convicting court. This

Court should reject the Findings of Fact and Conclusions of Law,

and rather than deny relief, ORDER the conviciting court to gather

additional facts to resolve the disputed facts (ex. was the complainant

present at court and available to testify on June 15, 2012).

The failure to do so is a denial of DUE PROCESS (for which the

federal courts may. resolve).

PRAYER

Thus, Applicant, Jeremy Crespin, asks for this Court's LEAVE

to suggest that this Court, on its own intiative, RECONSIDER
the denial of relief, based upon the convicting court's Findings

of Fact and Conclusions of Law WITHOUT A HEARING, .in both Writ No(s).

WR-82,141-03 and WR-82,141-04; AND, ANY AND ALL OTHER RELIEF THIS

COURT FINDS PROPER IN THE INTEREST OF JUSTICE.

Respectfully Submitted,

Jeremy^Crespin5

TDCJ No. 1807429

Hughes Unit

Rt. 2, Box 4400

Gatesville, TX 76597

APPLICANT PRO SE

VERIFICATION / CERTIFICATE OF SERVICE

I, Jeremy Crespin, TDCJ Id No. 1807429, being presently

incarcerated in the Hughes Unit of TDCJ-GID, in Coryell County,

Texas, do declare under the penalty of perjury that the'facts

inthis motion for leave are true and correct and that I have

caused a copy of this motion to be served on the Dallas County

District Attorney on the date executeAbelow by placing it into

the prisonmail system to mailed 1st class USPS.

EXECUTED on this the %ft day: of P»p .lo^aA f ^ 2015.

Jeremy Crespin A

Applicant PRO SrE*