attributable thereto and that the Court’s failure to review his claims will result in a fundamental

miscarriage of justice (id.), See Coleman v. Thompson, 501 U.S. 722, 750 (1991). To satisfy the

“cause” standard, Alvarado_must_show that some objective factor external to the defense

C impeded counsel’s compliance with Texas’ procedural rules See McCleskey v. Zant, 499 U.S.
ree MeCleskey v. 2ant, 877 Us

=z 467, 493 (1991). Alvarado has made no such showing. (See Dkt. 36 at 8-9.) Although
26 See ee

" ineffective assistance of counsel can qualify as cause, McCleskey, 499 US. at 494, Alvarado’s
claims in that area are meritless, as discussed below. And the “justice” exception is, confined to
cases of actual innocence, where the petitioner shows, as a factual matter, that he did not commit ~
the crime of conviction. Fairman v. Anderson, 188 F.3d 635, 644 (Sth Cir. 1999). “To establish
the requisite probability that he was actually innocent, the petitioner must support his allegations

with new, reliable evidence that was Ast presented af trial aid imuist show that it was more lik

an not that no'reasonable juror would have convicted hinr in the light of the new evidence.”, Id.

Alvarado has not presented new and reliable evidence. (See Dkt. 36 at 8-11, 14-15.) Because

neither exception permitting federal habeas review of Alvarado’s procedurally barred claims

applies, Respondent is entitled to summary judgment on them. a

Alvarado also objects to the Magistrate Judge’s conclusion that habeas relief is not
warranted for his sufficiency of the evidence claim. (Dkt. 34 at 11-13; Dkt. 36 at 10-11.)
Specifically, Alvarado contends that the evidence against him was “obtained by illegal seizure,
extortion and trade.” (Dkt. 34 at 11.) To begin, there is no federal right to a factual sufficiency
review. Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002); Wright v. Dir., TDCJ-CID, 2012
WL 7159911, at *21 n.1 (E.D. Tex. Oct. 2, 2012). Moreover, although Alvarado raised a legal

sufficiency claim on direct appeal, he failed to assert this claim in a petition for discretionary

4/8


REACONS FOR GRANTING THE WRIT
been indicted, bot also convicted States Respomse PA InSteiestnnrds agree s Haut
hs entile) tovidlake State and Federal cights, for Kine reason Yak Leannat speak
incor Stele violated ocan tules beceuxe Lavn hispanicoud do not spear (oiitaand
cead English, Leannot defend myelé; Tdout know treit Foles ot: latit Being eae €
Lae State, Appointed counsel ayd the trial court te b%ed bo exercise Ye U.S Cons
Leloltons Violabons Haect entitled moto be seleased before Lwastried tne Stake
maliclos wctodionaly knowtug, continued ootth {ye una grosecdtva a ape lice
investigator qiving 4 False fechmony tae coutt admifed afalse inverted confession «
On November (9 2014.The Court ot Criminal Appeals refused tocevecd and comtest
any cLaionsand Ygnored Hae Fi ElraCiveuit ORDER’ as well avd digentced Hae qppliattion
nptrootaritten over thud resulted \wa Cundamantal Miscarriage oF Teche Soy
94,2015. T6ileda Four te Application (LOY prase,as dcemedy to eview and contestacsio-
vnghol judgment of tne 4Ooth District Coort Weblo County Texas. Expaste Aluasadd (Yo, Wit:
23, (35-04 Hyanadvice, Estate) dich Gy coit S OFDER or ulland Fost Litigation
in Hae Application J also stated inthe byptiditlNnat ib RacState denies every ing
stated inthe App ication, Tan prove tall ina new Faiv jory Fatal nota beuck tia |
a5 adviced by appointed trial conse | Oy Mavc (7.2015. The Stake fs Leda Resouse bo
ine Application, aging Haat L admitted Ane false chaige, Livi tise Wen Stakes
Respoure P. OE rad witked aungthing ' taState wefers toa Cale immuted conkession
adi fled at {uta by investigators pexjured testimavay Hee euiderice wasuoid bot ignored
hy Cootts aboseot- diseredten, Glareasgud twit, Response ignoring ayy ORDER Wace
“Lrg argomarts avelbeetn tejected previouslycn) Huisapplicabion cod Likceusise bx
wosed, rar PA, there State agrees Hal tretolh has been cegechedjxyaiguneut
ae tige, bot Nis Inasd Fox He state to accepted {Loud recognize ne procedoial deFaul.
TheStete denies the tratho tony claims sterted lb me vnides penalty of-peqory tn the

i4


CSINIB02/CINIBO2 TEXAS DEPARTMENT OF CRIMINAL JUSTICE 07/08/15

R115/RPA6567 IN-FORMA-PAUPERIS DATA 10:45:18
TDCJ#: 01565198 SID#: 07954820 LOCATION: RAMSEY INDIGENT DTE: 07/19/12
NAME: ALVARADO, JOSE ZAMARRIPA BEGINNING PERIOD:

PREVIOUS TDCJ NUMBERS:

CURRENT BAL: 0.00 TOT HOLD AMT: 23.18 3MTH TOT DEP:

6MTH DEP: 6MTH AVG BAL: 6MTH AVG DEP:

MONTH HIGHEST BALANCE TOTAL DEPOSITS MONTH HIGHEST BALANCE TOTAL DEPOSITS

PROCESS DATE HOLD AMOUNT HOLD DESCRIPTION

NO BANKING ACTIVITY
WITHIN THE PAST 6
MONTH PERIOD.

STATE OF TEXAS COUNTY QF Barroua

ON THIS THE st DAY OF lui. I CERTIFY THAT THIS DOCUMENT IS A TRUE,
COMPLETE,AND UNALTERED COPY! MADE BY ME OF INFORMATION CONTAINED IN THE
COMPUTER DATABASE REGARDING THE OFFENDER'S ACCOUNT. NP SIG:

PF1-HELP PF3-END ENTER NEXT TDCJ NUMBER: OR SID NUMBER:

ROSLYN D.
VAIGE

eocccvece

RECEIVED IN
COURT OF CRIMINAL APPEALS

JUL 13 2015

Abel Acosta, Clerk


WEBB cOUNTY JUDICIAL SYSTEM

DOCKET
Webb County Courts PAGE
DATE 4/06/10 MCO0250
PDLM

6

CASE NUMBER... . : 2008CRS000589 D4
STATE AT 3:17 & DEFENSE AT 3:20 P.M. COURT SENTENCED DEFT TO 11 YEARS

TO SERVE. CREDIT FOR TIME SERVED. $611.00 COURT COST. CSV.

wommnmnnnnnronnnrme an Case Assgr

Court date/time: 1/28/2009 - 8:30

Reassignment of court date/time.

Offense: INDECENCY WITH A CHILD SEXUAL CONTACT
Court Sent

Sentence entered as 11 YRS TDCJ/ID

Offense: INDECENCY WITH A CHILD SEXUAL “CONTACT

For JOSE ZAMARRIPA-ALVARADO
Dispositn

Disposition entered as 310.

Disposition code 310: Convicted

For JOSE ZAMARRIPA-ALVARADO

Hearing
Hearing Type entered as 5.
Hearing Type code 5: Sentencing

Offense: INDECENCY WITH A CHILD SEXUAL CONTACT

2/09/2009 File Paprs
STATEMENT OF FACT FILED. CSV

2/10/2009 File Paprs
*IMG* JUDGMENT OF CONVICTION BY COURT; SENTENCE TO INSTITUTIONAL

DIVISION, TDCJ (SIGNED-2/10/09) CSV
RAP SHEET FILED CSV

2/11/2009 File Paprs
*IMG* ORDER (INMATE TRUST ACCOUNT), SUPPLEMENTAL ORDER AND BILL OF

COST. SIGNED-2/11/09
$62 350.00 ATTYS FEES. TOTAL: $971.00 (ERG)
——

/26/2009 File Paprs
MOTION TO WITHDRAW AS COUNSEL,

3/02/2009 File Paprs
*IMG* 1st AMENDED JUDGMENT OF CONVICTION BY CRT; SENTENCE TO

TUTIONAL DIVISION, TDCJ (SIGNED-2/28/09) (ERG)
***CERQIFIED COPY MAILED TO TDCU***

DER FOR SETTING/ORDER FILED. JJI

iA

9/02/2009 File Paprs
*IMG* APPLICATION FOR A WRIT OF HABAES CORPUS SEEKING RELIEF FROM

FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ART. 11.07
(EI

¥**WRIT DUE BY 10/06/2009***

***2008CRS589-D4 (A)

9/04/2009 File Paprs
WRIT MAILED BY CERTIFIED RETURN REQUESTED TO D.A.'S OFFICE. (ERG)

Case Assgn
Court date/time: 1/28/2009 8:30 Hearing Type: 5 Sentencing
Status changed from Open to Held


rage 2 o1 8

touching her in this way, C.J. moved away from where she was and Appellant left the room for five to
ten minutes. Appellant then returned to the adult bed and lay down where he usually slept.

According to Yuridiana de Carmen Aranda, the certified outcry witness from the Children’s
Advocacy Center of Laredo who interviewed C.J. and testified at trial, C.J. reported that Appellant
had unbuttoned C.J.’s pants and touched C.J’s vagina underneath her underwear with his hand,
causing C.J. pain.

Laredo Police Investigator Carlos Villarreal testified that he viewed the video recording of
C.J.’s outcry statement and asked Appellant to come to the police station so that he could speak with
Appellant about the allegations. After Villarreal advised Appellant of his constitutional rights in
English and Spanish, Appellant indicated that he understood his rights, placed his initials next to each
of the recited constitutional rights and wrote the word, “Si,” in answer to the questions, “Do you
understand your rights?” and “Do you elect to waive [your rights] and speak with us at this time?”
Within fifteen minutes, Appellant had completed his written statement and was provided an
opportunity to review the statement and make any changes or alterations. Appellant’s written and
signed warnings and voluntary statement were admitted into evidence over the objection of Arturo
Gallegos, Appellant’s trial counsel. Appellant’s confession, which Appellant wrote by hand in

Spanish, was read into the record by Villarreal and translated by the trial court’s interpreter:

I, Jose Alvarado, make the following statement: That as [C.J.] accuses me of
having touched her private part, I confess that it was so, but without bad intention. It
was because of accident. Because my lady, in other words, her mother, was supposed
to be in the place that [C.J.] was at. And it was dark. I could not see. And since I’m
always touching my lady, I got there and stuck my hand in her. But when I heard her
talk, I removed my hand from there. She was not supposed to be in that place. But
from there onwards, I tried that it will never happen again, and J never stick my hand
into my lady until I am sure that it is her.

Although Appellant attempted to suppress the statement in a pretrial hearing, arguing that it
was involuntarily made because he was intoxicated, did not understand his rights, and was not
informed of a right to counsel,-the trial court had found that Appellant’s Miranda rights were read to
him and that he knowingly, voluntarily, and intelligently waived them, and then ruled that Appellant's

statement was admissible in evidence.

http://www.search.txcourts.gov/SearchMedia.aspx?MediaV ersionID=37fe7a72-a00f-484f-... 3/17/2015


CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

98 US.C.A $2454 OU) (ANTCA.Penal cove § 8.07 “Fundamental Miscamiage

of Sushce’ Ker. A.

9 05GB (185.
U.S FOURTH ANEWOMEUT “Unloatel Aveest-clatt Search and 5 seicatd Elan amy APPA,

OS Foueti.ano FOORLEEKTH AMENDMENT) Detention Clali’? AREA. ADUS.CAB igBsRee a,
4 a 7
gS FOO RTH AND FOURTEEN TY AMEVOMEUT. Unlawful Atrestclalin, 42. 0S.CA.6 (483, APD A,

. A008 a
U.S. COUSAMEND 14th FOURTEENTH. Equal prolection’ y Due Process Clauses US.Const AMEND 5th
ARRB

29 US.CA,B 2254 “Failure of Consideration’ Corgigert My all of evidewe. vou avilable,

titerot tact would hoveentertuhd ceagnable doubt ast g guilt il b Minit Cerhioeand
APE, Band APPEL

A1.US.C4,5 (183 Deprivation oF Coustitu Hoval ec Sfahtte ry nights) wt fat inated
Pe. APE T And APP. CoAnd B.

MaNicioas Proseathion” 42.US.CA, 4 (483. hee. 8 vnowing Tyteutionally

DEFAULT JUDGMENT ONDER RULE 55 (>)
RULE 55 (O) oF oles of Ciul Procedve. De Fault Tudgnoteg., APR CAPE F

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REACONS FOR GRANTING THE WRIT
My Constitu'ia nal aud Statutory + Igltts rere clea iy denied twhen T requested
fox Hac ever a tect atta) «, The order wasnrever Shoanto me noteven issued Im
Nac entire cecocd, Ly uplakiono€ Statotory rights 42 US.CuA § 1983,Due Process Clavse
Jost For a pessonal problem, Lroaurest was made | rdalahon. Ta MewlauState,
21 $09 3) 294 Ceu.Critm .App.2000)., Where He Stete oC fered evidence aFertrancous
criminal comact sevctoncing ; Hye debewhnt cas eutitled fo show Phat ae indictment
Cor Lnat condack was diwmissed before tials In McGee State, 93 $4) 3d 56 Cex.
Appr Houston [14 Ha Dist} 2000, pel guanted), The arvest of the defendyntwt root ia
want tags improper, Al ough Hee of fiers liad probable cavse-to arrest the defendant,
Prey did nat present evidence-to meet ony eephin tothe cacraatt vequtemen f Eran iE
ae asest us pope, the body cout seach gaforied by the officers cans uncns tito.
nal Tt osos gestormed imax open areaoka Five station. on Alvasados case, the aires
tas pectormed ta public area (authozane),and oftivers did nat-atemet topratect tie
defendaks privacy Tnany way, no exception towoitant vequrement shou Ln vidlation
oF Tey Crim, Rule 4CG(3(A) stating OFficers esha dees mat posses wosrant upsnattes f
must show it to deferdant as soon as possible upor vequest. Alea, mny asresteaas made et
oot tras Monde’ tights be ig xead onthe H4Ho6 May 100% Trviolation of the St Amar-
dmen-t, Ln Stade. Moore 28 5) 3d, TheArial cout t properly suppressed eutden ce seized
as the result ofan unlawful arrest ond search. Sixteen montis atte the un laut

nicest itwasthe ELRST TIME BEFORE A SUDGE AND APPOINTED COUNSEL...Wolatvon of Due
Process Clause. Lrespect the au aalt until Hue lows ots, inmg cise Was siseen mo
thst ack evaiding my case,noos State contends that T waived my rights because Tad
prot said something that taey coere awayer Ldow't go toscheal lacy so Tdowt now that
t coppaseto fell ther something they already Kreis Pit obligakion to give me afalr
vial, ast-to vislatemy ets Loecouse T cast t defend mse 2 was denied abai tial L

al



REASONS FoR GRANTING THE WRIT
without time and place stated, As th thi cases, Tn State v Zavaly 17 5 S56
CTex. Appr Coxpis Charsty 2000, pe t,ce Fa), The States appeat From the tial
courts demgal ofan information sag dismissed as untimely The toa \eourt
erred intailing to sushi appellants mobiowtoquash the complalat becaus
such covnplaint does not kate Pret cand place ot Hrecommiss ia atte
- oftense, Tn Stater, Rasnn 160 $,u1.1d 163; Theor attired onappeal by
State, quashing ot infarmalion adhere ib cons suppor bed by complatt axes pro~
per ly quashed Cot alleging am taposs thle date. Ty Me Easland v, Stude63% 64)
15 ELLE This case collects and stalolishes Tre cvles for woyily bn possible date ste
vations, The spectlic holding «as tual on allegation of on ov akaut” Phe 3 (St
das oF Neri AD. (418. (animpostble dade) was nota funduientul defects however
anallegation only “pn” sude animnpossible date would be Fondamendadas would
“ow ox abbot te —day of — h.0. 400, Citing Benson. Stale 14 Sed Ud 122485),
“ow of Ow or aor” the day oF Savuaiiy (484 would be su Hidebabewta
mation to quash. Davis v.State, 608 Su) 2d AlCrex -App. 1444) The covnp late
suonin to ow Joly 2,1¢7Ly alleged am ollense ocaoired ow. Soly 27,1472. Thee com
plaint was Fatally defectrverse, Ln wy case, inthe record, cn seagrva complalut
4o fusti€y the impossible date. Tt is cleas andsv (Fivient evndence to cerase
Tals cage and dismiss (+ Tis cerborari sloould be Glanirey Got this reason.
REMONHG. Unveasonally CNS)TCEDepk Placed Aol On de
Ather one mano Une onlambul arrest Phe TCE department of€-
icers placed alld ov ma by sFbicoré Laziness and syplte. The TCE officers
velused to go Hwoogh mg INS clean xecotd, and vidlabed Hue 4th aw! 14,
Amendments, Had tre oFEicers go Hwough Ruereco”, Ceaill ve able to wcie
Pud{l00,050 bond- Tandd beable to work, hove anelFechive coumse| ode end
; 28


IN THE SUPREME COURT OF THE
UNITED STATES

TRIALCASE NO. 2008-CitS-489-)4
Jost ALVARADO, Ze} Hioner prose
Vv 5) 6

THE STATE OF Ts etal”

hn a tt
STATE TRIAL COURT DECISION CONVICTION!

“APpENpX B.


REASONS FOR GRIT O16 THE WRIT
case or delaying Shu indichwent, Because We condude trabastiol 28.061
Violates Lue separation of power doct ine and that appellate ad to obtatnacvling
on tas astiole 3201 complaints We reverse’ the dictriot courts order. See. Gxtolav
vState at 178.(ase reversed) Tntuso cases veleased ak Ke samettine Yc ies Mistiict
Court oF Appeals Ly declared as ticle 18.061 Cons: Hhubrenal, See MovgenvS tate 88.2
SUS ATL (Key Appr Houston st Dist], Ltd pet, rel 2), NivvState692s.w.2d 424
Cex Apps Houstor (st Dist tae’ spot ced): Ln booth cases thostate axqoed {iat
ecause Pre coutt oF Criminal Appeals shoal i) Jeclased axticle 98.061 | uaconstitut onet\,
‘tus void and could motapply-to untimely dndichmenr under astiole 32.0) ” See Ng-
gyenat 472; his ak 475. The appelles asgued Yt because Phe legislafure amended
asticle 18.061 able Neshell., 1+ comaihed available enforcement mechanigm Goraiticle
32.01. See Agoyen at IL; Wit at 475° NO.04-O0265-CR slip op ak 2-1-5) Td 5~
Cex .App-San Antonio bec26,t426,p0 pet. | applying csticle 3201 and 28.061 inthe
covtext of a late odictmentosluon tue State did nob calsed cconstitutiowa ty question .
Charge not made constitutes adenial odueprocess.) The Fourteenth Cout stating
N wa 32.0) isvok speedy rial medhautism tefected tis argument Cov tne Follouiing fea
sows.(to) The Heostor grand juries hove 6ix mmovrfies terem nore is puck less pressa re to
indict taste months Hun togo to trial inthat lenght of time, (C) The good cause
exeption serves a proceddral saFequad to allow Nac prosecatot to present facts suchas
Prose mlasieel OF as wnigut othersose jastiby a late indictments Ty a concy ting Opivioa,
Hudson stated Baad, Acticle 3101 is suflieient qrouuded onavticle tsecttontD o Ete
Toyas Coustituton, No puison shall beheld to ansuey Forg crivasiutl offense Unless onan
indictment 04. qrandjory’,delendart {asd ily pudicted {sacleas volalionobafuns stake,
The indictment oras Fatally defective, reversalacquittal osas requ wede
Fee TA COORT REY To wecoONOTCSRSO
a4 “Roles oF Cre Evid, WLEGB



WEBB COUNTY JUDICIAL SYSTEM

. DOCKET
Webb County Courts PAGE
DATE 4/06/10 MC0250
TIME it PDLM
CASE NUMBER + + « + + 2008CRSO000589 D4
9/12/2008 File Paprs
- WRITS -ESSUED7—-CSV ‘ine -

Vv 9/22/2008 File Paprs or vndicteerg #4300 we

WRIT OF INDICTMENT EXECUTED (DOS: 9/17/08) CSV

10/22/2008 File Paprs
CASE CALLED. JUDGE OSCAR J. HALE, JR. PRESIDING. DEBBIE CAMERON,
CR. PAUL THOMSON, PRESENT/ST. ARTURO GALLEGOS, PRESENT/ATTY. DEFT
PRESENT/JAIL. CASE WAS mone. sete POSSIBLE PLEA 11/06/08 @ 10:00 A.M.
ddI so
ORDER SETTING pzapuimes/ SES ae DATES AND JURY SELECTION;
DISCOVERY ORDER FILED. JJI
pretrial dates and discovery order faxed to atty Oscar O. Pena.
rmm.

11/06/2008 . Notes
CASE CALLED: JUDGE OSCAR J. HALE, JR. PRESIDING. DEBBIE CAMERON,
CR. PAUL THOMSON, PRESENT/ST. ARTURO GALLEGOS, PRESENT/ATTY. DEFT.,
PRESENT/JAIL. CASE WAS RESET FOR 11/13/08 @ 10:00 A.M. COURT INFORMED
BOTH DEFENSE AND STATE THAT HE WILL ONLY TAKE THE PLEA IF DEFENDANT
LAKES A POLYGRAPH TEST. JJI '

File Paprs

ORDER SETTING DEADLINES, PRE-TRIAL DATES AND JURY SELECTION;
DISCOVERY ORDER FILED. JJI

12/11/2008 Notes
CASE CALLED. JUDGE OSCAR HALE PRESIDING. VICENTE MENDOZA CRT
REPORTER. RICK LOPEZ PRESENT FOR STATE. ARTURO GALLEGOS PRESENT WITH
DEFT & IN CUSTODY. MR. ALBERT LONG CRT INTERPRETER. COURT ADVISED
DEFT WITHDREW PLEA. NEW DATES GIVEN: MOTION DEADLINE-1/10/09,
PRETRIALON 1/22/09 & JURY SELECTION ON 1/26/09 AT 8:30 A.M. CSV

File Paprs
LETTER FROM JOE RUBIO DISTRICT ATTORNEY TO HON. JUDGE OSCAR HALE.
csv
12/23/2008 File Paprs
STATE'S MOTION FOR DISCLOSURE OF DEFENDANT'S EXPERT WITNESSES
FILED.
1/07/2009 File Paprs

STATE'S WITNESS LIST, STATE'S NOTICE DESIGNATING EXPERT WITNESSES,
STATE NOTICE OF INTENT TO USE CHILD ABUSE VICTIM'S HEARSAY STATEMENT,
STATE'S NOTICE OF INTENT TO USE CHILD ABUSE VICTIM'S HEARSAY
STATEMENT FILED. CSV

1/14/2009 File Paprs
STATE'S AMENDED WITNESS LIST. CSV

1/21/2009 File Paprs
STATE SUBPOENAS ISSUED ON "CJ", VERONICA ALVARADO, DORA QUIJANO,


so cqveceuident Reson FoR EAT NETHE WRT -
ary apporsted course) ceGused 4o litigate o FOURTH Pmelincart claim Unlansty| Seas

and Seieord,, Avd*Ehuses nolo investigate to obtain extfeae to prove a perjared
testivnsay to suppress Hac False evidence, re veCused becouse he comterrds Haak te

Se hate Wuie decided 40 make you guilty oF Hreo€Cerse charged by Hw State cuit,

Fruit witnesses Tuat di riot noes, see, oViidevnl peisons, Lev ures police o fficersand
poblic sewants. Bot counse) Coyne. up with aneveptiony 16 Leork tora caste
‘ \owd, or (© L have money, Taal oe (vee, give hin a newe, 4ven hecvould imeke.

adea\ cite, D.AS/Which Tre fuss iE eccaust Taam insta gaatg menloers ds Hake?
TThaitis not conupens , .
Jue Mibonny, State 15 53 3d 267, The cout Hood Huat appellants’ trrel covngel was

rwe (fective log failing totmvestiqate and Cnteruierd potential atnesses Cespite-th
avalabrlifyand wilingness 0 sevealo aaypellowts welatives, Grtends asad Corot hevs
to testi€y on his Vehalls The sewtenclag stage © Cany case vegpsdless 0 & Khe pe
hential quridnent isthe time at which fot wang defeudamts tre. nos porta
services of the entire proceeding canbe performed. Tn Alwaseds} case,T rie | covws\
Called ag promised +o Wis client to Cle anotiecotappeal itwasdiccused before aud
alter Miccomvictirine Teal counsel aloandowd ime he lied, revel ile) Hicappeal «

REASONZ OC. TRIAL CORT Lgnopine ANORDER Eom Consol Crivaivil Aypety

THE COURT! Thus 1g, Nn ute onan application FormnitoClubes Corpes past comvictiqu,
Hac deadline Ervine to respond.180 asst gags, Micves—a back issues Shall loecesolutd
toi iin QO day ¢ of Pac orden (CRE24 TRI),

MEWWESMn Alvarado ts gretly muck claiming Hrathe omsqi ber inelbective assistance,
because Ais attorneys bls. Calleyos, liad fold lim that hewas going foFile anappeals MiGallegos
newer (te Hheappent(CR45, 18-23) The only issve Tad alsocuas drat there osas supposed £0
be aheaving asithin days of He Orde Cromthe Court al Gremlin Crypeals, coun they
issued This ofder, aalch was Sanuasy Wie 13th, ThedO days expired already «

TRECOURT* Cremmembg coirec ly, Wwe defendant mentiouce) aboot anayper.
MAR.WISES T had syoiien forts, Calleyos Bot nenevel addresses Heise of Yarappaml. He
addresses Hat issue o€ ine Feechive assitoce ak tral We never dose cthelherar not
he wos going Lo Cle Theappeal torr is no slice ebappealowFile((R416,8-05)

34


NO. WR-73,133-03
TRIAL COURT NO. 2008-CRS-000589 D4 (C)

__EX PARTE § IN THE DISTRICT COURT
JOSE ALVARADO ZAMARRIPA § —. 406th JUDICIAL DISTRICT
§
APPLICANT § WEBB COUNTY, TEXAS

STATE’S RESPONSE TO THE SUBSEQUENT APPLICATION FOR A
WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF THE 406TM DISTRICT COURT AND THE
HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

NOW COMES THE STATE, by and through her undersigned Assistant
District Attorney, and files this response to the subsequent application for a writ of
habeas corpus filed by Jose Alvarado Zamarripa (“Applicant”), and would

respectfully show the Court as follows:

IL FACTS

The Applicant was convicted of indecency with a child by contact. He

admitted to penetrating an 11-year old girl but claimed that he thought the girl was
my “

noite bi)

nape pains neve

we
his wife. Alvarado v! State, No. 08-10-00211-CR, 2012 150957, 2012 Tex.

ee

App. LEXIS 381, *3, *5 (Tex. App.—El Paso 2012). After a bench trial, he was
convicted and sentenced to eleven years of incarceration; in imposing that

sentence, the Court aimed to ensure that, as the Applicant would ruminate over his

STATE’S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS PaGE 1 OF II


TABLE OF CONTENTS

OPINIONS BELOW .0......cccsssssssssssssseesescssssessssssssssnnivreesssessssessasnassnsseseesssssesesssssissssssseseess 1
JURISDICTION. .0..cccsseesssssssesecsssecesssesessssscesssssssssusssessseeessaseesssstvssssuiessssuesssssuseessseeseseseeeeees 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......:s:::ssssessseeeeeee 4

REASONS FOR GRANTING THE WRIT

CONCLUSION ...oesseesessssssssssssssssssssnunmesssseseshesssasssssstessassssesssssssssnnsestsisssssesesdvssssesssseneeed

INDEX TO APPENDICES

APPENDIX A The Filly Cireuit Court ORDEK For Full and fair [tigahlon Neri
APPENDIXE State trial Court’ Dectsion, Comicttan.

APPENDIX C State Couto GCriwinal hopeals Denying Review! 0 Tpw se.
APPENDIX D State Courto€ Crimina) Appeals MANDATE CRRMTING OUT-OF-TIMEAPPEAC,
APPENDIX E E iq ttCousk ok Nppeals ACEI ming cast Dect Appeal.

APPENDIX F States responselo HARSH iLOTGast) Application. devying ceva.


2. List your employment history for the past two years, most recent first. (Gross monthly pay
is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay
Employment
WA M/A MWA $6
“WA MWA MA. $_¢
MWA MA Wy $"g

8. List your spouse’s employment history for the past two years, most recent employer first.
(Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay
Employment
AA MA NA $A
NA NA ALA: $ NZ
ALA ASA AYA $ M/A

4. How much cash do you and your spouse have? $ 4)
Below, state any money you or your spouse have in bank accounts or in any other financial
institution.

Financial institution Type of account Amount you have Amount your spouse has
MWA NA $. Ly
MA . MA sia $_" AIA
“ hWA ne )//." sg $ ALA.

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing
and ordinary household furnishings.

OU Home CU Other real estate
Value NAG Value_N/A g
O Motor Vehicle #1 ; O Motor Vehicle #2

Year, make & model Kt Jk. Year, make & model _A//A
Value g Value g NLA :

0 Other assets
Description WAN
Value



REASO US FOR GRANTING THE WRT
In Staley, kelley 20 Sud 3d 147 (Tetapp- Texas tan, 1000); We ova court
Properly gt anted thedelenrdamts mabey for newtria| on Lreloas Ic of Me fec-
Soy eassistance oFlviq\ counsel, The filling of mbce obagpent dWuot deprive
Pactra cours of juvisdicliun Yo gle onthe mation For neod trial. only Rue
Fall (ing of heappellate secotd ends jusisdiction, Whee Yn defendant heed a mer favious
speedy bria\ moten, boty couwsel Caled bo sere a Tiny otk, eMe tral ort
giopetly exercised ths Jpisdictowrto getaneatyial (or nelCeckwve assistance
0© couse (CAR coset ‘COUNSEL INTENTIONALLY CHAOGES NOT TO FILE Motionlitadismass.
Troe, Coumel Cai ledte Pile mation sequesting the courtdisinissiing Phrecase. Gey
a lode orvnbinely indictwrenl pisvauct to arhicle SLO asd 18,06 Lo tev il Proc.
Tira Counsel duorrectly musaduiced mete waive my, jury trial Thegtving oF
Me rrect advice Concerning wlevanrt issues mass comstlyte ve flectiveasistance.
Ex patte Duffy de mmanced ar « neaypuneilament heocing, Eypaite Camda 618 sui 2f814-
CreneCrte Aye 122i} -Lohore Ye defense atbornty believed That the defendant was
alegible For shacn sobakton Crown Le courtand tere Fave advice) thedeCendewt
Locsaive lig raght toa jury onpunishinelrt, Here wans she lfectrwe assistemce ofcouuse |
owsemtencing owder the rule of Expatte fully, Ln Gullegocu. State 756 S03 Ud (tey, Iyp.-
Sayn hu.fonld 1498 pet 4260), Fai lave to counges Lo inborn debendant Wed wis euoNer
0 & Jovy at punislamant stage oFtwal ciodld proclude hy tecetvtng provahion was
Imelfective assistance OF counsel and raquired raewal, See also Toney wStaly 755
Seatd 101 Tex App Hoosten [idtupict)] 428), However Hic tote hyo Fb ie rep
vesenteatton akbecte) Prcpuuishment phase and evnand Foye necd paiskwentis
seqyite)» Heimander yp State,943 Ses a 43 0Crexbppe El pase 1947, pety greaited ) Wea
Couse | requested inten trommlly tothe court Corsentence csi tuautetCective conserth
MB.GALLEADS* Mychent astshis Fot hui Honor to sentence bute (CRI 101,16 - U2).
3\


in THE SUPREME CouRr OF THE
— 7 UNITED states

TRIALCASE WO, 2008-CRS-584~ 04

JOSE ALVARADD, PETITIONER Pro Se,
VS,

THE STATE OF TEyas, etall.

“STATE COURT OFCRIMIAL APPEALS DEW'NG REVIEW
“IGNORING AN ORDER”

Ny

APPENDIK C.


vage Sor

reasonableness of counsel’s performance according to prevailing professional norms which includes
an examination of all the facts and circumstances involved in a particular case. See Strickland, 466
US. at 688, 690.

To meet his burden under the second prong of Strickland, Appellant must establish that
counsel’s constitutionally deficient performance prejudiced his defense; he must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Ex parte Chandler, 182 S.W.3d at 354, citing Strickland, 466 U.S. at 694. A
“reasonable probability” is “a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Any constitutionally deficient acts or omissions will be considered in
light of the totality of the evidence before the judge or jury when making this determination.
Strickland, 466 U.S. at 695; Ex parte Nailor, 149 S.W.3d 125, 130 (Tex.Crim.App. 2004).

The record on appeal must affirmatively demonstrate trial counsel’s alleged ineffectiveness.
Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). As the Texas Court of Criminal Appeals
has repeatedly-said, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective-
assistance-of-counsel claim on direct appeal because the record on direct appeal is usually
undeveloped and inadequately reflective of counsel’s reasons for his or her actions at trial. Mata v.
State, 226 S.W.3d 425, 430 (Tex.Crim.App. 2007); compare Cannon v. State, 252 S.W.3d 342, 350
(Tex.Crim.App. 2008) (although rare, trial record was sufficient to permit appellate court to decide
merits of ineffective-assistance claim). “The lack of a clear record. usually will prevent the appellant
from meeting the first part of the Strickland test, as the reasonableness of counsel’s choices and
motivations during trial can be proven deficient only through facts that do not normally appear in the
appellate record.” Mata, 226 8.W.3d at 430.

"After conducting a thorough review, we find the record before us underdeveloped and silent

regarding the motivations underlying counsel’s tactical decisions. We find nothing in the record —

that apprises us of counsel’s reasons for his acts or omissions at trial and about which Appellant now.

complains in this direct appeal. Consequently, Appellant has not overcome the strong presumption

that counsel’s conduct was reasonable. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001).

“{C)]ollateral attack may be. . . the vehicle by which a thorough and detailed examination of alleged

http:/Awww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=37fe7a72-a00f-484f-... 3/17/2015


a | | cory

Information foy the CLERK of Court by Petitioner Josehbavagb.
Dear Clerk, please bring this\writ of Cectiovari totneattevition forthe Court...

INTAE SUPREME COURT OF THE
UNITED STATES 13, |33-OY
TRIAL CASE 110.2008-CRs- 584-4
RECEIVED IN
JOSE AWARADD, Fefitione/ Pro Se, couRT OF CRIMINAL APPEALS
VS. JUL 13 2015

THESTATE OF TEMG et all. gt Acosta, ler

“WRIT OF CERTIORARI OF INDIGENT PETITIONER, CORRECTED AWD UPD AVED.
NO CHANGE OF SUBSTANCE WAS MADE

\orit oF Certuran respectfully Corrected and Uj dose
rit of Certravi respectfully Corrected and Updated By ros Minted

for 15 Aan ae

ie Seuss Rd
Rostaron TX. 71583

“One TRE CONMENT OF MANY Lam innocent,

Considering all of evidence now avila, KrtevoF Fuck caoold how enter kained
ceasonalle doilet as to guilt. Artecked in tetaliahion ow. Nay 14,1007. Incustody
sisteen months Lndicted on! September 17, 9008.42. UScAS 1983 vialattion,:

“Foudamental Miscostiage OF justice As theti(tl Circuit Coort <a Shag
; Tsend The ocigital Writ of Certierasito tle Supreme Cour betdsigan
Del, and one copy For the opposing Coonse| tre Covtt oF Crimaibal Appeals at
Austin TX, as requested by the TonombleSuporne (cult

eoted on this the BY day oFluly 20Is. bis i? 8% 2015 Placed ih Phe
i box e

4



AFFIDAVIT OR DECLARATION
IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

1, Jose ALvARADO-Z ,am the petitioner in the above-entitled case. In support of
my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay
the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of
the following sources during the past 12.months. Adjust any amount that was received
weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross
amounts, that is, amounts before any deductions for taxes or otherwise.

Income source Average monthly amount during Amount expected
the past 12 months next month

You Spouse You Spouse
Employment 3 O $_N/A $ g SNA
Self-employment $ g $_N/A $ g $_N/A
irre onsen propety S$ #____$H/A__ 8 fp ___S.4//A
Interest and dividends $ g $_N/A 3o $_N/A
Gifts 3g s_N/A sp S_A/A
Alimony $ g $ N/A so 3_N/A
Child Support sp $3_N/A sf $NA
Retirement (such as social $ g $. N/A $ g sN/A

security, pensions,
annuities, insurance)

Disability (such as social 30 $. N/A 3 $ N/k

security, insurance payments)

Unemployment payments so $_N/A 3p $ N/A
Public-assistance 36 * $_N/A 3G $ N/A

(such as welfare)

Other (specify): N/A sf 3_N/A so sN/A
Total monthly income: $_ $_N/A $ @ $. N/A



\

REASONS FOR GRANTING THE WRIT
reason te investigator eaere cware Hatt was enti ed €or release belaretrial)hisgeople
ang coUrce mete olotain aninveloutary conbessivn against me with isptomise to
stop Prchassments, (€-Loid not t will continue bo hove tyouble -\nvestigatet were
acsare That heuns commiting activne against me lnowingly intembonally. the damage
oF anobe is cons dered accimeoG- violence’ V. TCA, Pens (cove § 26,03(0) US.u Reyes
Maya 305,63) 362, TheStieailGully and inturhonally destroyed tre defendants inne -
cence Stahute pertaining to acts calculate) to prodoce injury 0¢ damnageto propel by  pe-
sson or ibe oF another, proscribes khowtgl y and ail\Gol commissionoF fact or vvging
oFonobner person to commit act onder crcl reasonably calesated to po e
Cleat an) present curd immediate threat or danger to physical well, proptty or life oF
another caheseactés calculated and adstoprodoce suck axresslt and stadute was ne! vord

Coy Vaguanes,VeraonsAnn . P.Cast 466(@) Lockey. Vane, 307 F. Supp 434, Arkicle 13.3.
ot tex,Crim Pox. provides Haale A criminal conspitacy may be prsecdted inthe county

here Pheconspicacy was eutered agreed fobeexecuted, Tex Pe Cope § is.02@},
Tulenial CObe § 15,6208) provides That” ‘Begessow cominits atria conspiracy iC he

agrees cal thon OI wore pet sons Hrckengag ein conduct Prat wsould constitube-te offense
nat palorins an over actin putsuance.o Fine agreement.

Lay illegally dept ved of my liberty sepaiated Grommy lovely Family by wse of conspiragy.

REMONHS. A> CONSPIRACY To STEAL

Ateciwuclontaily inwented afalse covkesion chile Las diunk for adeal-trade, £
Cecovedee) my 1p,cad,T cashed my Tes (BiAky o support nny Ea lys As Soom as L cashed
mny chetk, { Count out the\> wacshigh geople in lais Consptracy cout ved hardogs ig
me. Being theinvectigdor te only persan sho Mucus that Leas going fe chsh achecy.,
abe else. could send geaple bo stole my money. L dont kuood calut their inteutons weve or
ardor Grom tne iwvestigator-told tiem +o do now, bot J called (nim aid let him know that le

\4


Ground Four: “I believe [I made the]

Detective mad when I [hid] but this is
just a personal problem [between him]
and me when he arrested me I told him

light’ someday” (p. 9).

-‘Fhe~truth~is~going-to~come-to-the-/-

Ground Four: “The main problem is
that, the investigator Villarreal arrested
him in retaliation. Investigator lied
under oath in court because [he] denied

it.” (p. 12).

Ground Five: “I told my counsel that I
can prove that confession doesn’t have
any value[,] it was a trade for my
Driver’s License with [Detective]
Carlos V. on May 8, 2007. I signed the
invented confession in exchange for
my D.L. ...” (p. 10).

Ground Five: “Later, [the] investigator
made. a deal with Petitioner (driver’s
license for a confession)[.] Petitioner
invented a false statement to please the
investigator and stop the harassments
from investigator’s people.” (p. 14).

See above.

Ground Six: “Petitioner made a false
confession because investigator
promised to stop the harassment[,] After
investigator obtained the confession, he
sent the people in his [conspiracy] to ...
[coerce] Petitioner’s wife into his
scheme plot.” (p. 16).

See above.

Ground Seven: “A police detective
Villarreal unlawfully obtained by force
a false, and invented statement from

Petitioner...” (p. 17)

See above.

Ground Eight: “Petitioner explained his
innocence and gave [counsel] all the
{Petitioner’s version of the] facts of the
case and witnesses on his behalf and
how the false confession was
obtained...” (p. 18)

As to Applicant’s ninth ground, asserting ineffective assistance of counsel

(IAC) on appeal, the State would further assert that Applicant’s second writ

2 Petitioner goes.on to accuse the investigator of stealing his identity, “surely to use or sell it.”

(New Application, p. 14)

STATE'S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS

fit]-to-be-true;-but—Petitioner-can-prove-}......

PAGE 5 OF 11


rage 701 9

“C.J.’s” genitals with his hand, with the intent to arouse or gratify the sexual desire of
any person, including his own sexual desire, Against the Peace and Dignity of the
State. ,

Thus, to prove Appellant committed attempted aggravated sexual assault, the State was required to
show that on or about April 1, 2007, Appellant intentionally or knowingly touched C.J.’s genitals with
his hand with the intent to arouse or gratify his own sexual desire or that of another person and that
C.J. was under the age of 17 and was not Appellant’s spouse at the time of the offense. TEX. PENAL
CODE ANN. § 21.11(a)(1), (b)(1)(West 2011). :

A person acts intentionally, or with intent with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in conduct or cause the
result. TEX. PENAL CODE ANN. § 6.03(a)(West 2011). Proof of a culpable mental state generally
relies upon circumstantial evidence. Rodriguez v. State, 793 S.W.2d 744, 748 (Tex.App. — San
Antonio,1990, no pet.). Circumstantial evidence of an. accused’s.mental state is not treated differently
than circumstantial evidence of other elements and is reviewed under the same standard as direct
evidence. Laster v. State, 275 S.W.3d 512, 521 (Tex.Crim.App. 2009). Moreover, intent can be
inferred from an accused’s actions, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50
(Tex.Crim.App. 2004); Maldonado vy. State, 998 S.W.2d 239, 243 (Tex.Crim.App. 1999); Gallegos v.
State, 340 S.W.3d 797, 802 (Tex.App. — San Antonio 2011, no pet.). An accused’s intent is a
question of fact to be determined by the fact finder from all the facts and circumstances in evidence.
Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App. 1974). The specific intent required in
proving indecency with a child may be inferred from a defendant’s conduct, his remarks, and all of
the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981).
An oral expression of intent is not required and the conduct itself is sufficient to infer intent. C.F. v.
State, 897 S.W.2d 464, 472 (Tex.App. — El Paso 1995, no writ).

In his voluntary statement, Appellant admitted that he touched C.J.’s “private part” but stuck
his hand in her under the mistaken belief that he was touching his wife and removed his hand when he
heard C.J. speak. At trial, Appellant admitted touching C.J.’s buttocks, described the touching as a
spanking, denied touching C.J.’s genitals, and claimed the touching was accidental because he

believed he was contacting his wife. Rather, Appellant stated that it was not his intention to touch

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=37fe7a72-a00f-484f-... 3/17/2015


IN THE

SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

{ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix
the petition and is

to

[ ] reported at Sor,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.

The opinion of the United States district court appears at Appendix
the petition and is

to

[ ] reported at > Or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.

x For cases from state courts:

The opinion of the highest state court to review the merits appears at
Appendix _A to the petition and is

DX reported at CWILACTIONNO,SiA-CWV-ISh or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.

« a

Tah 5

The opinion of the Coort of Criminal Appeals Denying Ceuiea” court
appears at Appendix _€ to the petition and is

D<l reported at Excpaste Avardd M0.WR-73, 133-04 5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished. ~



INTHE SUPREME COURT OF THE

UNITED STATES
TRIAL CASE NO. 2008 -C 8S -589- D4

JOSE AWARADD, Petitioner prose.

VS.
THE STATE OF TEXAS. et all’

*MERITS:
“ORDER FOR FULLAND FAIR LITIGATION

“Appendix. A!


for a constitutional violation, no rational juror would Have found Applicant guilty.” For
that reason, this application, like the previous ones, must fail.

RESPONSES TO APPLICANT’S INDIVIDUAL GROUNDS

Vi

Applicant’s allegation regarding an unlawful search and seizure is a Fourth
Amendment Claim that must be raised on direct appeal and cannot be considered for the
first time on habeas. Ex parte Kirby, 492 S.W.2d 579, 581 (Tex. Crim. App. 1973).

Vil.

Likewise, Applicant’s allegation that his confession should have been suppressed
because, he claims, he was not properly Mirandized may not be considered on habeas.
Such a claim must be objected to at trial. If it was not, it is barred on habeas. Ranson v.
State, 707 S.W.2d 96 (Tex. Crim. App. 1986).

Vit.

- Nor is there legal merit to Applicant’s request for relief based upon his claim that
he was confined from May 14, 2007 to September 17, 2008 during which time no
complaints, indictment or information was presented. There has been no allegation by
Applicant that he requested a speedy trial before he went to trial. Accordingly, he has
waived that issue and cannot obtain habeas relief thereby. See Hartfield v. Thaler, 403
S.W.3d 234, 239-40 (Tex. Crim. App. 2013).

IX.

In his fourth.ground, Applicant once again alleges ineffective assistance of trial

counsel. This allegation was made on appeal and was rejected by the Eighth Court of

Appeals because he failed to establish that the allegedly deficient performance of his

State’s Response to Application for Writ of Habeas Corpus Page 4 of 7


é

INTHE SUPREME COORT OFTHE

UNITED STATES
TWALCASE NiO, 2808-Cis- 589-04

THE AWARNDG, PETITIONER Prose,

VS.

THE STATE OF TERNS et all!

"MANDATE GRANTING OUT-OF-TIME APPEAL

 ABPEN DIX. D”


REASONS FOR GRANTING THE WRIT
Thetvial Court intenbionally Albused sits Discretion being aware. o€-
False evidence, Uinlaus ful search and seizure with malicious intetion foobtain a
contessidi, UrlassCal arrest aud védlation o€ duc process of lau violations of tue
FOURTH, FLETH, SXTH AND FOURTEENTH Amendment agaist ne. 42. UsS.C.h§ 1985.

WIWEN THESE WORDS WERE MENTIONED (N-COURT IN RECORD aie shouldbe divnistel.
Yoox Hovor, My client thas been tn custecy for about 17 months (C214, 18).
PRESECUTOR' Weve had this cage stce Sept, 22,2008, (R516, [6-17 Haeartest was May (4, 2007)
TRIALCOURSELS We mniglet possibly work This out pretly soonsince hes been in-custady for 0
foug Cons 4-2);
—_ sppessipeersame TINE TIAL COURTS HAUL D Disbtiss THE CASK, Tastead of,
THE COURT: And T guess He ol Porta this case eaastuio geass toserve?
TRIAL COUNSELS Ves Your Honat. He does lnawe (2 mowths credit (C37 (7,4-8). There eias onotiey
reason, T didnt want to bring ftup.(cese@ t1-L

ea eee a ie ane gn
lege lly dekained, buthe ‘relused tori ng io pas hestated nye record ‘

Thebiial court abusdd Ms disccelfeon when Pie courttebesed to pro vide. one a
professional transla fo/ sive the hegiuming as Teequested. Renewal is cequtied adhere
The {ital coutt, upon timely request Fails-to provide an iuterpreler fora defendan bale

- does wot speail cond understand English. Only a Corts enioneons conclusion sstmiscandect.

THE COURT! Obviously yoo had all oF yous rights afforded to gou( CRT (6-25).
THALCOUNSELS One OF He allegations icthatle ans notinforined edhat cold lhaypenacttria \Gnergas)

En Anes v. Stalt 658 sul 2d 823, The petition wos consictedotstatutory cape
and sentenced +o lee I1464., The State entered lato astipvlation will qppetlant ih
be tial wort Yat the appellasrt dd not undersea? Hye Gag lish language duv'ng
Hrecast- Duahich he eas cowvicted * AncaCide /+o6-interpreter suppoted contewtion,

“RELUEE GRAMEN. Ales Kee trial court abused of its discrebtan potsuantte speedy
Jota yialabion The rigivtl a speedy tila is walated chen piejudtcets sla Froman,
unieasonable delay 1m Hie Arial of the case, Bx patte Cafhcact een sel 2d #30 Ctex,
as


REASONS FOR GRANTING THE WIT
performance coustute a comple teactual of Constwuctive dental of ec assisfastce off
counsel. Qiejudice is piesamed « Wik eheold be G RAVTED for Relief fot tu's reasons
REASONAL A. DEFICIENT PERFORCHANCE
Appellate coowsel Failed to(fintotall raise Lc issue of- Void sentence on appeal,
A defect whicly cenders a seintence vor), may be waisd atany time Ley vState
B18 Su) 2d 801, Consecuembly arconbemporuncous objection is not necessa y to
preserve the ettor For appelecre euterd, Lapateustabe, 640 Su) 2d 412 sTewe-
Fore, appollacte coowel covs deCiciewt Wu nat presenbing arguments on appeal ac
(LY, vovd sentence, 2) Uwlesaful Secuchand Seizure (3) No complaiwtsyhoy suiorn a€Ci-
davits press ingclaag tact me(4) No arrestarut sont in the ers) Uulawhl
Attest rete OR ET coun imovits i custadky cur) no indictmentor infovmatioy
presented,(Z,) Tadictwowl Void Gov delay (8) Ty sed couusels Failure to disclose the
Fackota caness callling to testify on my deball (4) And+vial covmselé Feilore to
call my oitues +0 the shud, Wharappellabe Cavin veceived al tui information per-
sonally Crow me He promised +o File the appeal accolding on alts ow the record
aud Fai lal; LE counsel (nad go through the tecord, the would lave food the clear
euidonce 0% procedoral defanlt (rong fl couvic Hon) i Lig lit of Neeeupence in the
recov, There fore Arc aypa| as based onan onreasouable dererwudartionol-th ete
Facts, an) cleas and conuiuciar evidence in Yue tecotd, Lad he ditfeent itappellate
counte\ necy, of Go tniough tacrecovd, He comuichion axodld be reversed onappaa
Based Upon Mi.Clalles D. Wise, tre total ohandonentnt-oC- cause Wo, 1008-CRS-562-04
ona peal, cows dante) eFfective assis enct oF cous and Olwreas tn tais as ey the
complained oF pev for mang const iyted acomplehecc tual or constwctivedema of-
Pucassistance oF dung, preiwiceswoul bepesumed. Cikis not presumed,
Petitioner Goould show tat duetbo Mn Wises ahandanwencte & cause je lng ouable

$7



~)

No.

IN THE

SUPREME COURT OF THE UNITED STATES

SOSE AWARADO-Z.  _ petitioner

(Your Name)

vs.

Ties ball’ — RESPONDENT(S)

PROOF OF SERVICE

I ose Alvasado -Z. , do swear or declare that on this date,
Bh, , 2015., as required by Supreme Court Rule 29 I have
served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding
or that party’s counsel, and on every other person required to be served, by depositing
an envelope containing the above documents in the United States mail properly addressed
to each of them and with first-class postage prepaid, or by delivery to a third-party
commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows: SH cleskolAbel caste

One Cony of this Wil of Cerf iy (385 Sey wet The pees Couns, ‘rhe dout¢

On,
TAT, Placed inthe U5 Mall bay the same date’ erected and sed

I declare under penalty of perjury that the foregoing is true and correct.

Executed on Jy, ly ‘gh, , 2015

— (Signature)

49.


REASONS FORGRANTINGTEE WRIT
o advance cany legal axgqument contesting thre Factual and lgal sufticiency of That
cowniction,as dell asthe wid sentence that cas imposed. Had Mi. Wise tajsédas
T cequestted al issues on appeal the covl+wauld hav e reverse) and reformed Lrejud-
gimeatto dismiss. The couwsels performance xa dojetively defi clon and tee
deficient pes hor mance was grejudi cial tthe Lae resilt of (he proceeding
woodld pave been different. Shuichlavad vllachinghinn 466 0.5, 668,687(964) « For
tis aso, tis Writ For Certeotar’ shoul) be CRRWTED, cose. 10.2008-CKS-569-04
yeversed and dismissed, oF tetitel, to ensete theaccuray of dhe vedictand the
system oF justice, in the intuestoF tive justice tmacrimetiat T did nob
commit lt Lgny it; Lean 9 rove it. Please gjeant one oot opportunity ‘to prove d
REASONZILB. Fear From LiGe Statements
Hovo tale Supreane Cath Teas Com my Vibe” because iwveshigatat Villatten)
ates wnat Ve eoold dare to hark me bt retaliation; Game coay he vila fully asrgtedon)
becouse Tam dvdlosing all ue ells about bis dkgal actives agaistme, And Daont te
beclear incase angttaty load happens-te me or my Family, that ail be only by br
Villatveals retaliation, because oF the sameway flat he senthis people ives Comspiicy
to Collow it hans ne and rly val, etwodld “ne an et to att mae or img
Caumily as \ Committed petjery being vides oath, he wold shioy via macy to wrt
meol ie Kill we fos etait ta pres slpeyt cot lit some
sort tprotectiou for me, of and my Gauri ly Lesoold appiecdate it Turdersfand investigator
hakes ne for persondl problem only becuse 1 compleivae) to Wimrgs T explained
inthe Stalementot fhe case. 8 gy Thetis {scomiug otto te ligt as
T promise) hina cobon Onlacafully aitested me on May [1,2607, 1 did ceplaind to the
appoiute) counse| vot Ihe refused +p Inform judge oc disclose the Fact inthe vec,
Tcannotspoasand tde notspoak English atthe time Twas natallowed ta
38


Page 1 oF

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JOSE ZAMARRIPA ALVARADO, '
No. 08-10-00211-CR
Appellant, '
Appeal from the
v. '
406th District Court
THE STATE OF TEXAS, , of Webb County, Texas

Appellee. (TC# 2008-CRS-000589)

QPINION.

In a bench trial, Appellant, Jose Zamarripa Alvarado, was found guilty of indecency with a
child by contact and was sentenced to confinement for eleven years. On appeal, Appellant contends
that trial counsel rendered ineffective assistance and that the evidence presented in the guilt-innocence
phase of trial was legally insufficient to support his conviction. We affirm.

BACKGROUND

By indictment, Appellant was charged with indecency with a child by contact. The
complainant was C.J., the eleven-year old daughter of Appellant’s wife.

At trial, C.J. testified that Appellant, her mother, and her two sisters slept on two mattresses in
one room. Appellant and C.J.’s mother slept on one mattress, and C.J. and her sisters slept on the
other mattress, which was separated from the adults’ bed. C.J’s mother always slept closest to her
daughters’ mattress, and C.J. always slept closest to her mother. On or about April 1, 2007, C.J. went
to bed with her clothes on, including underwear, blue jeans, and a blouse. C.J. awoke in the night
because she saw and felt Appellant using his hand to touch her genitals underneath her underwear.

Appellant was in the bed where C.J.’s mother usually slept. After waking up to find Appellant

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=37fe7a72-a00f-484f-... 3/17/2015


Il. GENERAL DENIAL

The State generally denies any and all allegations in the Application.

Additionally, the State would further respond with specific denials as follows:

(Lull proue rf In a ned tral colth the tw fh )

Il. APPLICATION IS BARRED FOR FAILURE TO SHOW CAUSE WHY
GROUNDS COULD NOT HAVE BEEN RAISED IN A PREVIOUS

APPLICATION
Article 11.07, section 4(a) of the Code of Criminal Procedure prohibits

review of subsequent applications for writ of habeas corpus except in limited

circumstances. The applicant must establish one of the following exceptions:

(1) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously considered
application filed under this article because the factual or legal basis for the
claim was unavailable on the date the application filed the previous
application; or

(2) by a-preponderance of evidence, but for a violation of the United States
Constitution no rational juror could have found the applicant guilty beyond a
reasonable doubt.

TEX. CODE CRIM. PROC. art. 11.07, § 4(a); Ex parte Brooks, 219 S.W.3d 396, 399
(Tex. Crim. App. 2007). The Applicant must therefore show why “the factual or
legal basis for the claim was unavailable on the date the application filed the

previous application” or that there are “sufficient specific facts establishing by a

STATE’S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS PAGE 3 OF 11


REAGONS FORGRANTIUG THE WRIT
“Here, the cog | \ied because T never requested cock tying, Tee teasoa T do net
complains 50s Wyecause Phe interpreter didnot informed mot that assertion,
Hie translatot corked (nan ungto fessional manner. “Trial coussel (gnoted oraiasan
agreement exyle ined esp eerbrealley Inoas Phe False evidence eras o's bated.

MRGALEGOS: Yours Homer, my CLiewt ic still clojecting to Xe confession, terre stillaquing
tos its sinslon taty cowbession, \yased one tact Paki t- eves based oMapeomse.
Yous Rony. and given by ivuestigatot Vatlarreat (C0150, (418),

The counsel Failed, unsuccessfully ony trade a mottaucto coppiess tc conlession, bot
Ine cela to \ higate cite Hic tw th, aud tele to obtain evidence to prove nal
Ane conkesston exes bake, inverdedfiegal lf’ Aotained, im Cesult pasadvrilld af tal.

REACONHIOR, COUNSHS S ELE SERVING AEEWDAVIT
Counsel’ self sexutng al dau’ t ig cought Lo awed Yc professions lobliga-

Lions set forth in Milburn at 267, Because he Failed fopresent-antness(afier Hraw
petition’) despite hauning been pranded Maformahion oy Puc petibisnes bo ew bigal}e
ne serteree Brat eons facile his pesfonmance Fell Welloes hic pro fessional noi
of reasonableness Beouts conse Failed Lo comkuct des pie wrau yy Haak Fouorable
sottcss tere avarlalle to deshity. Tn Shautilitg Ed. at 6S. Thecour t-coucsded Pau
"appellw llarthas demonstrated prejadice In his case eventhough oe cava t say For
certain Hhatappellanty characte axe sses coould have fouorebly iublvenced +0
duly § assessment of puuishwtn I sha nbling at 165 and Mlbvnnad 214" have
no doubt, oaever,Huat defense counsels Gaslure to intervrens orcall poss li ty
ot bsg tay out even a silagle raitgahing factors

Teal Counsel Wer Aulone Aid He Titentionlly Refused 0 Bring tops
MR GALLEGOS: Thore wwacanoticy veasou,T didatt evoutt Lo loving iu p((e5%@, tt-12) Hes

gota to appeat tven nel say Looas ‘ineffective (cRss4, 10-12) «

The sixty Amewdinent tedac tight 4e elective assicbance ot coumselStory ulaaell 408 us.
Bh


as

No.

IN THE
SUPREME COURT OF THE UNITED STATES

L JOSE ALVARADO-Z. PETITIONER

(Your Name)

VS.
« %
THE stare oeTexas etal’  — rEsponDENTG)

- MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari
without prepayment of costs and to proceed in forma pauperis.

Please check the appropriate boxes: -

Petitioner has previously been granted leave to proceed in forma pauperis in
the following court(s):

CO) Petitioner has not previously been granted leave to proceed in forma
pauperis in any other court.

O Petitioner’s affidavit or declaration in support of this motion is attached hereto.

O Petitioner’s affidavit or declaration is not attached because the court below
appointed counsel in the current proceeding, and:

CO The appointment was made under the following provision of law:

Oa copy of the order of appointment is appended.

(Signature)


WEBB cOUNTY JUDICIAL SYSTEM

DOCKET

Webb County Courts .
DATE 4/06/10 MC0250
TIME 11:31:16

CASE NUMBER... . : 2008CRS000589 D4
OFFCR J. GONZALEZ, SGT RENE VENEGAS, OFFCR ADAN HERNANDEZ, OFFCR
CESAR BENAVIDEZ, DET CARLOS VILLARREAL, YURIDIANA ARANDA, SGT.
“=< ETANTE” VELARDE. NOT” LISTED” BUT” ISSUED~ON~SABRINA~SANCHEZ~ (SUBPOENAS~—~ "~~ ~~
PREPARED BY DA'S OFFICE) CSV

1/22/2009 Notes
CASE CALLED. JUDGE OSCAR J. HALE, JR. PRESIDING. DEBBIE CAMERON, CR.

PAUL THOMSON, PRESENT/ST. ARTURO GALLEGOS, PRESENT/ATTY. DEF.
PRESENT/JAIL. MOTION FOR CONTINUANCE FILED. CASE WAS RESET FOR MTNS
ON 1/27/09 @ 9:00 A.M. JJI

File Paprs
APPLICATION FOR SUBPOENA OF WITNESSES FILED. SUBPOENA ISSUED AS TO
"CJ" AND VERONICA ALVARADO. JJI
ORDER/MOTION FOR CONTINUANCE (SIGNED) JJI

1/23/2009 File Paprs bMyushussv
SUBPOENA EXECUTED ON VERONICA ALVARADO & "CJ"-DOS: 1/22/09 CSV
STATE SUBPOENAS ISSUED ON OFFCR. J. GONZALEZ, DET CARLOS VILLARREAL
& YURIDIANA ARANDA. CSV
DEFENDANT'S ELECTION AS TO PUNISHMENT, MOTION FOR NOTICE AND WRITTEN
SUMMARY OF HEARSAY STATEMENT AND MOTION FOR HEARING PURSUANT TO
ARTICLE 38.072, MOTION TO SUPPRESS, MOTION FOR DEFENDANT TO APPEAR
IN PERSONAL CLOTHING AND WITHOUT RESTRAINTS FILED. CSV

1/27/2009 File Paprs
SUBPOENAS EXECUTED ON DET CARLOS VILLARREAL; YURIDIANA ARANDA AND
OFFCR J. GONZALEZ (DOS: 1/26/09) CSV
Notes
CASE CALLED. JUDGE OSCAR HALE PRESIDING. DEBBIE CAMERON CRT REPORTER.
PAUL THOMSON PRESENT FOR STATE. ARTURO GALLEGOS PRESENT WITH DEFT
& IN CUSTODY. WITNESSES SWORN IN & TESTIFIED. COURT HEARING TESTIMONY
& ARGUMENTS DENIED MOTION TO SUPPRESS. DEFT WAIVED HIS RIGHT TO JURY
TRIAL. ORDER SIGNED IN OPEN COURT. MR. VICENTE MENDOZA CRT
INTERPRETERBENCH TRIAL TO BEGIN ON 1/28/09 AT 9:00 A.M. CSV
File Paprs -
WAIVER OF RIGHT TO JURY TRIAL FILED. CSV
*IMG* ORDER-WAIVER OF RIGHT TO JURY TRIAL (SIGNED-1/27/09) CSV
—*® AVIT FILED. CSV

1/28/2009 File Paprs
*IMG* T COURT MOTION TO SUPPRESS FINDING (SIGNED-1/28/09) CSV

TRIAL COURT OUTCRY WITNESS FINDING (SIGNED-1/28/09) CSV

Notes
CASE CALLED. JUDGE OSCAR HALE PRESIDING. DEBBIE CAMERON CRT REPORTER.

PAUL THOMSON PRESENT FOR STATE. ARTURO GALLEGOS PRESENT WITH DEFT

& IN CUSTODY, MR ENTE MENDOZA CRT INTERPRETER. INDICTMENT READ
& DEFT PLEAD(NOT GUILTY) WITNESSES SWORN IN & TESTIFIED. MOTION TO
INVOKE RULE GRANTE TATE RESTED AT 11:21 A.M. AND TO RETURN ON

1:15 P.M. COURT RESUMED AT 1:45 P.M. DEFT SWORN IN & TESTIFIED.
DEFENSE RESTS AT 2:37 P.M. STATE & DEFENSE CLOSED AT 2:37 P.M.
CLOSINGARGUMENTS BY STATE AT 3:06 P.M. & DEFENSE AT 3:08 P.M. COURT
HEARING TESTIMONY & ARGUMENTS FOUND DEFT GUILTY. BRIEF ARGUMENT BY

—



CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

etal

Date: Til Bh 2015

4


REIKONG FOR GRANTING THE WRIT
application, that We Store iunnstuy ivtentonally denies Facts taal entitlemeto be
celeased Immediately From unbrartital curd eriomeons decision of Pre OGH istrict
Coot Webb Cont, Taras - TheGortolGiwingl Appeals xetused to ceuteea and Couttest
ny chalins ignoring an ORDER as well; The Court dtgrutssed Hac Applivthgutcaithauta.cori-
Pon odes Relic Cas dented On Tone 10, 2015, (hick is in conGlict aot Bue Fith Cie
copts opportunity For Full and Feu Uihigation Haat cequives an immediate detesontnchiy
and a Give Sudgmosrt cotth ORDER to vevesse-Aae case and dismiss Hor setvied to
ensoie theaccaracy of Lneverdectand the system of justice. For this reason, L
ves pect Cully request tig Honorable Sopreme Courtin hs author ihy for Gnew,Fai¥
trial wilh jory to prove my \nmoceince dest ly ape joed festhmony. Lonlyneed
to go bacu, nos Hrat Lean defend enygel Na hale oF @ Spanish -Evglshdichnety
and Gods help to prove with my only defense whichis the TRUTH and ny itis.
REASONS A Restraining Order Obtained By Extortion Au) Theat.

Hy Gama ly wesctaken cvany by foe Rion schoo! ly cacaormadn ho Never Bewrti feed lnev.-
seLF,Laterilog plone call, nay wie informed methat poblicservautts toot my Family by Fore
hecewse-t elas under investigation bya WHLiSy statermart:As che explaied te these po-
Lic servis: Cot Huart geagorageins her tailshe had +o File a testialningorderagainst
me, (evencdlneu she explained that tesopposed ictin Herdooghtercaas notatothful
child) 1€ shedid not filathart order aos tee children cooald be takers audag -Mycake
Gugposed viches muoteet) explained tat she hos been mairied colt me fos 5 i years ttre
Aime, time enocgh to jancca ine very cael and judge my hie chavactev ofa wud axlking
men that ma\kes her believe my ivuncewce,aond not to press anny chasges against &-
Despike of Hass, she wns coerced bo File arestratning aderagainstone,|6 she did not, she
would have +eodbole-She informa publtcsqweuts thot she needed money to pay 00 ©
howe rentibe public sevaits (Geel to pay oor vent inexchange forler oF lethat

i5


STATEDE NT OF THE CASE
The Stabe accepted reir misaptication oF stated cules of lading \vckeuti—
onally combinved auith theprosecutan, being aware. the State andtrial counsel,
Haak L was entitled to bereleased 0 Ceustody before Hreuinfais tial startathe
stele vequested that Hated Subsecoent Application loe dismissed loeaouse,1 did wal vated
ny Clay ropetly, stating Haak comnot olstain celief now Hak Tam sevitenced and
anethat tn mi ..
cowvicedt ere ig no aathority, Thereason ofthis injustice \s because Tam his pawic,
Luo nist speatior cead English, theState Geel Free to vidlate mg right thd Stake ignored
an ‘ORDER. The Court 0 € Corminal Appeals ignored Pech Cueits opgor tunity tor
Foil and Fait litigahon 33 well and refused fo review my claims o contest,as it
(as ordered, The bpplication was dkimissed cattvodt wartten ordes, Expade Muasada 0
MIR-73 133703. RelieG was deniedou November (4, 1.014, On Febwusiy 24 DOS TEed
atoty Appliccton for Writ of Habeas Cotpos wer asticle \L.07 prose, byadviceste-
ing the Fitt Civcuits ‘ORDER Fos Cull aud Faiv (tiyahion intreApplication, and i€
Stakedonies everglring ctated lathe dyp ication, T caw prove itallin a.nety fai and
jpty trial, State denies everyting staked inthe appliachon ‘qretiing at ORDER as aril
in a States Response-to the Application cequesting Haat Hoe application bedisenssed:
The Court ob Gr va Appeals ignoving the Reth Gucvit$ ‘ORDER 0s well, cebuced to
veviela,andiconest my Claivs asitaras ORDERED. Te Court dimnissed applianhioxcutthaut
cotter ode. Expacle Nvawilo NO. WR-73, 134-04. Relie€ cas denied on June lot,
1015s; That conblict thee decision f\uodvequives an immediate deuminaghan
ofthis Cowamertal Miscarriage oF Sustece, tea cequives a baa Cnal jogment wil
Fhe trath ad the lag), because only for a porjured testivmmany (unusual punishment)
Taam illegally detained, deprttd oF Life (rbetty fora crimetVuit t dt) not commits

This case should be revetsed ot velied to ensore the accuracy of the vedictand the system
ot jughce.- r


REASONS FOC Ghaniue THE Witt
After siteen mouths of custody, € walla T ceceived a late indichmentuith a false
chasy & OF indecency cattle a child by comact & 2 aitheul quod case stun Laid
nok speali,sead Of aatite Gaglih( Ge a Hdd Todo enow oSbiat was stated tn
He document (FT yeneny, Tees d AePegtad paper, T igs told te sign itand
Laid, bob L ceqged ted For an explana hon because Leaswt awareoteahatwas it.
Hoe veasonte <tqn alate indictment never casas made clear to me. Therefor eavie~
lation ot-ax ticles 48,061 ant 32.01 (as cleat, aud indictment sould bo yord «
Lydickmentad Intormbonstates, Sauction Gor vatimely bdichmen t
is dismiwal will prajudece Neanans Aun Leas C.CPas ts 18.06aid 3L0\, See
Teh v, Stale 505 5u 26 648., Article \8 10 0€ +he Toyas Constitubonr provides
tat" _ No person shall belield toonsuiey Fora. criveinal offense unless owanindictment
ofa grand jury” Defendant tacdily iwficted isa. cleos violation ofa Texas statute ,Astiele
98.061 OF Tex Crim. Proc, provides, Discharge \necavse of deny. TCamobionte setaside
an indictment wwlormation or complaint Gor failure to provide aspeedy ‘wal tnviola-
fiw of asticle U.06) is sustained the court-shrall dischay ge Haedefedant ppoistea
covasel glioses not to Flea Matton xequesting dischasge,| being autsre of Hyatt viol -
action. be discharge onder as ticle 28.061 is a bas +o any Gui thor prosecotiara for Hw offense
discharged vderand foray offense arising. See Coudran State, 451 50) 2d 17% Gee
veversed) Tames Vusttee Opinion, He Stabe appeals From Hye de trict courts order
digmsinng The prosecution axgainslappelle Charles Frasiuling Condian pursuant: toarhile
BL.OV OF Teras Cava Procedurcawd bare Fuster proses hoi pursuant toarhcle
98.06 (oC eas Cotmningl Procedures TyeStatt assets twee poorts olornns Fist’
Pisinet Court did nokerred trun | dismissing appelles grosecution Second {The Skate
contends articles 2201 and 18,061 are unconstitutional Tyd {The Stole contends
ne d wtrict coort ded not aluused ts d tecre tion Einding the Stale d not have gos
q3



provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at trial. Stone v. Powell, 428 U.S. 465, 494

(1976). The Fifth Circuit has interpreted “an opportunity for full and fair ligation” to mean an

opportunity to contest the unlawful search and seizure, regardless of whether the defendant

actually took advantage of that opportunity. Janecka v. Cockrell, 301 F.3d 316, 320-21 (Sth Cir.
2002), cert. denied, 537 U.S. 1196 (2003). Here, the Magistrate Judge found that Alvarado did

not take advantage of the opportunity to challenge the legality of his arrest during tria]. (Dkt. 34

at 9.) Thus, as Alvarado already litigated his Fourth Amendment claim in state court, it is

procedurally barred.

Moreover, 28 U.S.C. § 2254(b) requires that a habeas petitioner exhaust available state

procedures before he pursues habeas relief in federal court. See Wion v. Quarterman, 567 F.3d

146, 148 (Sth Cir. 2009). Here, the Magistrate Judge found that despite having appealed his
conviction to the Texas Eighth Court of Appeals and filing a state habeas application with the

Texas Court of Criminal Appeals, Alvarado did not present his detention claim to either state

_court, (Dkt. 34 at 9-10.) Alvarado now argues that he stated in his habeas application “Alvarado
in Custody and no Indictment” but it was ignored. (Dkt. 36 at 8.) However, the Magistrate
Judge found no. such statement (Dkt. 34 at 11), and the Court finds no such statement upon its
review of Alvarado’s habeas applications (see Dkt. 25, Attach. 4 at 53-63; Attach. 31 at 15-25).
Therefore, as Alvarado failed to exhaust his detention claim, it is also procedurally barred.

Alvarado alleges that exceptions apply to his procedural default. (Dkt. 36-at 8-9.)

Specifically, Alvarado argues that there is cause for his procedural default and prejudice

court had jurisdiction and the indictment was s' ient for that purpo
3/8 Lade ;


fu

TEXAS COURT OF CRIMINAL APPEALS

Austin, Texas
MANDATE
THI STATE OF TEXAS,

TO THE 406TH DISTRICT COURT OF WEBB COUNTY. — GREETINGS:
Before our COURT OF CRIMINAL APPEALS, on the JUNE 16, 2010, the cause upon an

Application for Writ of Habeas Corpus styled:
EX PARTE JOSE ZAMARRIPA ALVARADO

CCRA No. AP-76,365
Tr. Crt. No. 2008CRS589-D4(A)
was determined; and therein our said COURT OF CRIMINAL APPEALS made its order in these words:

"This cause came on to be heard on the Application for Writ of Habeas Corpus, and the same being considered,

because it is the Opinion of this Court that the relief prayed for should be Granted, it is ORDERED,
ADJUDGED AND DECREED that an out-of time appeal is GRANTED, in accordance with the Opinion of

this Court, and that this Decision be certified below for Observance."

WHEREFORE, We cornmand you to observe the order of our said COURT OF CRIMINAL
APPEALS in this behalf and in all things have it duly recognized, obeyed and executed.

WITNESS, THE HONORABLE SHARON KELLER, Presiding Judge
of our said COURT OF CRIMINAL APPEALS,
with the Seal thereof annexed, at the City of Austin,

on this day July. \ 2010.

\ Wee his SON, Clerk
\ \ MAY , Chief Deputy Clerk

Abel Acosta



REASONS FORGRANTING THEWRIT
Qldere yoo accare, Hnak hebiad his Jes chee ound Swat heneedd his 1.40%
A.Wis cafe dd enaye tt kued towne Haat heneeded ite cash acheck (86 %.66, 1-15) «
Appoiuted counsel Hyer asned me houdtre false statement ans obtained.
Q- What else did tweet gator Wlavedl tell goo aboot your ID.2
A. forme to Gil oof some paperwork for tinetobeable to give meback my TD. LF uch beans
not going toretu Ii and Lneed Hat L)to be able tocash my check ((ees4 8-12).

dU Lashed my check, and The falsestutament was made, meansshat he did
gave meloack my toed Kose statewerds in court record, thetvial cou ttabu-
sed ob its discretion admitting a False Erideaceat tial. In welation oF Vernon’ Ann‘Teras
§ 0.002 willl and Naliciouk for This teasou,tleis peition For Certiorarshouldh-e
‘crawten, CHES order ceversed and disinise)
REASONHA - Comvichtan Obtui \ jul

Being vwderoathy Investigate’ Villavvea\ hed betarethe cout}; Knowsingly ivcbertonally,
hedestroyed my invpcevee,and one family 6s wxe\\uvilte his Galsebestimmony caben Hue cow

asked him Ihe made a dealWade (dt vers license im exchange For the-confession) Me \ied «
Tal, counsel as Ked hit Q. Did you raaue any promises tomy client? TE you conlecs.T'\ eave.

you alone, 1€ you Congess TU give you your TO, cosd @ nid you gave him his TD. casd Gs soow as
— Weasdeed ute door? ; .
AT dont ememiber i 61 handed iva bac his 1) CeRCTAA0). (ie pesivty)
, Ite investigator was a ltones t person, he shoold say Hetwth because as
‘ain investigator he is trained) nat-+to Forget tungs. UC inveshigator od said the
Lyon, Ais case Wag dicnnssede And Me ‘rath Bp peed Losayis Luis, Yes yout
Henot, 1 sent peoplete covcce hits confess hasiss and stole his dks moneys, Lasked Inti
iF he was ready to mare a deal Avade (his drivers license in exchanngefor a stictement)
Gus be wow aceyt it botatter being courted 1 ettikel uedea len) Tretormen lis
LY, and L told hninn thot Tin going to stop The hovascments, bu 1 tied., When he
Complained to me hesaid Hast \re wes going to report me For my illegal actvihes L
citested Inn in cetaliation, accep ty orongding apclogtce, tes not guilty and
(7


Il.
GENERAL DENIAL
The State generally denies each and every allegation in the Application. Additionally,
the State would further respond with the following specific denials;
Ill.
THE APPLICATION IS REPETITIVE
OF APPLICANT’S EARLIER FILINGS AND SHOULD BE DISMISSED
The Court is requested to take judicial notice of the previous applications for writ of
habeas corpus filed by Applicant. The issues raised in Applicant’s current filing are the same
arguments he has urged in his previous applications, arguments already rejected by this Court.
Sec. 4 (a) If a subsequent application of writ of habeas corpus is filed after final
disposition of an initial application challenging-the same conviction, a court may not
consider the merits of or grant relief based on the subsequent application unless the
application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented
previously in an original application or in a previously considered application filed under
this article because the factual or legal basis for the claim was unavailable on the date the
application filed the previous application; or

(2). by a preponderance of the evidence, but for a violation of the United States
Constitution no rational juror could have found the applicant guilty beyond a reasonable
doubt.

Tex. Code Crim. Pro. Art. 11.07 §4(a) (2013).
Iv.
As revealed by even a cursory review of the Application, each of the grounds stated by
the Applicant are issues that he has raised previously or that he could have raised in one of his

previously applications. While he has changed some of his wording, Applicant continues to

claim essentially the same grounds:

State’s Response to Application for Writ of Habeas Corpus . Page 2 of 7


TABLE OF AUTHORITLES CITED
Cases.

Pace NO.
Barring foa ns Stole, INT Tex.Citm, [32 80 2b 937 46
Beusou v,State,7¢ 50 2d (221436) 8
Coptanu Sfate, 967 603 2d 118. Case. reveised. 23-44
Cadterv Stale, 398 Sc) Id 290 Case| Coad dy a 1
Catrille wState,462 $0) 2d 1/4 (ey. Apps Houston /yDist 442) ——______. 27
Davis v. Stake, 50,5 Sed 20 241 (Tes. App.) 28
Ex parte Alvacadd No, WR- 73,135 -03. _ AS
Exvpatte Alvaiacs, Mo. wk 73, (33-04 uA
Ex patte Cathcart, 192 Sa) 24 430CTex, Apps Sao Aufowie 08) ———__ 45
Expaite Cancdb,618 sci 20 814 (Tey Crim App. 1991) Bl
Ex patte Lope, 745 Se 2d 28(tex Cris. App, 1183) , 36
Fasland ys State, 632 sv 2d 621 wo ae sh
Callogos v. State, 756 Sus 2) Tex-AppSanhutanid 498 ped, refd) 8
Holly State, 460 ty 2d 136 Ctey.Criva ppd 470) : 27
Heinandes v State, 443 se £0 930(tex-Appe Elpeso (977 petgeun —3i

Kime | man V: Moiison477 0S. 365,41 L Ed 2d 308, 106 6 Ct. 2574 33 «+

La pottev. State, GA0 Su) 1d 4/2 . 37
Levy ¥, State, 818 Sw 2d 80). 37
Loche v. Vance. 307 F, Supp 134. Iq
Mooney Vi holobae 244 U.s.103,55, C4. 340,74 b £0. 241(435) « 1g
HMendiala wStete,2 ( So) 30.282 (tex Clim. App. 2000) rr

McGee wStuti, 13 $0) 3d 156 (Ted. App.- Houston [tttuDist ] t00, pel grated _.2

McMann v. Richasdsea, 397 v.5.754 (920) on 4
Milbumn vs State, 5 Sed 3d 267 34
Ngvyenu State,882 Std 2 47 (Ctes.Ayps Hoosten [istdst] 44, pet, sed).
Mixv.S fate. 862 50 Ud 474(Tey. Apps ouster [ist vit Judd pohseFd)._.¢
Nanes vi State, 558 SU 2d 893... _ DS
Prccell yo Stati, 317 $6) 21d 208 cose | Gey, Ciin App.) “NG
Powell v. Alabayna, 287 WS.45°(1432) 24
Peniou.v, Ovo, 488 US. 75. 36
Strickland ws fate 166 05 668 ,687(|¢04) 34
Stillesn w Stute, 690 bu! 2d B44 4

Slate v. Willrqrns. 938 SW 2d 465 CtexCitre app te) a

Stale v. Syastid, 240 Sc) 2d 405 (oy bpp Fortssolt 47), —_____—.A6
State v Zavala, 17 SW Id 366 (exper Corpos Chitsly £000, pe +,1e6) —_—. 28
Skate vc Basidvt: 160 $c) 29 163. 28

Shy cklaid v Washington, 166 US.668 (1¢#), BA

t


IN THE SUPREME COURT OF THE
UNITED STATES

TRIAL CASE NO. 2008 -CRS-¢9q-D4

JOSE AWARADO, PETITIONER Pro Se.
VS.

Yo,
THE STATE OF TEXAS, et all.

"DIRECT APPEAL

“EIGHTH: COUNT OF APPEALS AFF LRMING Chst

* APPENDIX E


rage 6 ui 8

ineffectiveness may be developed and spread upon a record.” Ex.parte Duffy, 607 S.W.2d 507, 513
(Tex.Crim.App. 1980). Issue One is overruled.
IL.

In Issue Two, Appellant contends the evidence was legally insufficient to support his
conviction because the State failed to prove beyond a reasonable doubt the essential element of
intent. We disagree.

Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the prosecution to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895
(Tex.Crim.App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). Such a
standard not only gives full play to the responsibility of the trier of fact to resolve conflicts in the
testimony and to weigh the evidence accordingly, but it also enables the fact finder to draw reasonable
inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778. Indeed, the trier of fact is the sole judge of the weight and credibility of the evidence, see Brown
v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 129 S.Ct. 2075, 173 L.Ed.2d 1139
(2009), and therefore we, in performing our sufficiency review, may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4
S8.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d
958 (2000). Instead, we determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to the
verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). Moreover, we presume that
the fact finder resolved any conflicting inferences in favor of the verdict and defer to that resolution.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

The indictment charged Appellant with indecency with a child and alleged:

[O]n or about the 1st day of April, A.D., 2007 and anterior to the presentment of this
indictment, in the County and State aforesaid, JOSE Z. ALVARADO, did then and
there intentionally or knowingly, engage in sexual contact with “C.J.”, a child younger
than 17 years of age, and not the spouse of JOSE Z. ALVARADO, by touching

http://www.search.txcourts.gov/SearchMedia.aspx?MediaV ersionID=37fe7a72-a00f-484f-... 3/17/2015


No.

IN THE

SUPREME COURT OF THE UNITED STATES

JOSE ALWARADO -Z. — PETITIONER

(Your Name)

vs.

THE STATEOETENAS ef all, RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

TUE UNITED STATES DiSTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO piyistON
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Dosé Alvarado -Z,TOCT# 1565148

(Your Name)

Ramsey One Unit (00 FM. 655 RQ.

(Addr&ss)

Rosharon, Texas 77593

(City, State, Zip Code)

N/A

(Phone Number)



vage 4 or 8

of innocence; (2) Mr. Gallegos failed to file a notice of appeal; (3) Mr. Gallegos placed his own
interests above Appellant’s right to a fair trial without prejudice; (4) Mr. Gallegos failed to “invoke
the rule” during the suppression hearing; (5) Mr. Gallegos failed to object to “numerous leading
questions” from the complaining witness; (6) Mr. Gallegos permitted exhibits to be improperly
admitted without certified translation thereof; (7) Mr. Gallegos failed to ask for a directed verdict; and
(8) Mr. Gallegos failed to argue that the evidence against Appellant was insufficient to support his
conviction.

In judging any claim of ineffective assistance of counsel, the benchmark must be “whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). We analyze claims of ineffective assistance of counsel under the Sixth
Amendment by applying a two-prong test. Strickland, 466 U.S. at 686; Ex parte Chandler, 182
S.W.3d 350, 353 (Tex.Crim.App. 2005). Under this framework, Appellant must prove by
preponderance of the evidence that his counsel’s performance was deficient and there is a reasonable
probability sufficient to undermine confidence in the result that the outcome would have been
different but for counsel’s deficient performance. Ex parte Chandler, 182 S.W.3d at 353, citing
Strickland, 466 U.S. at 694.

To establish deficient performance under the first prong of Strickland, Appellant must show
that counsel was not acting as a reasonably competent attorney and that his advice was not within the
range of competence demanded of attorneys in criminal cases. Ex parte Chandler, 182 S.W.3d at
354, citing Strickland, 466 U.S. at 687. Appellant must overcome the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466
U.S. at 689. Thus, Appellant must overcome the presumption that, under the circumstances, counsel’s
challenged conduct may be considered sound trial strategy. Miniel v. State, 831 S:W.2d 310, 323
(Tex.Crim.App. 1992), citing Strickland, 466 U.S. at 689: While strategic choices made after
thorough investigation of law and facts relevant to plausible choices are virtually unchallengeable,
counsel’s cited strategy does not prevent a reviewing court from determining whether a specific act or

omission was outside the wide range of professionally competent assistance. Jd. We judge the

htto://www.search.txcourts.zov/SearchMedia.asox?MediaVersionID=37fe7a72-a00f-484f-... 3/17/2015


CERTIFICATE OF SERVICE

On October 6, 2014, a copy of this document was served on the Applicant
at:
JOSE ALVARADO TDCJ#1565198
RAMSEY UNIT 1

1100 FM 655
ROSHARON, TX 77583-7670

by certified mail, return receipt requested.

David-L. Reuthinger, Jr.

STATE’S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS PAGE 11 0F 11


review. (Dkt. 34 at 12-13.) This constitutes a procedural default under Texas law that bars
federal review. Clark v. Texas, 788 F.2d 309, 310 (Sth Cir. 1986) (per curiam); Noriega v.
Thaler, 2011 WL 677352, at *4 (S.D. Tex. Feb. 16, 2011).

Furthermore, a sufficiency of the evidence claim is not cognizable under Texas habeas

review. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). This constitutes an
independent and adequate state procedural ground that bars federal review. Reed v. Thaler, 428
F. App’x 453, 454 (5th Cir. 2011) (per curiam). Also, Alvarado has not met either the “cause” or
“justice” exception above permitting federal habeas review. (See Dkt. 36 at 10-11.) As such,
summary judgment on this claim shall be granted.
IIL. Ineffective assistance of counsel In sof fet ewt evidente_

Also unpersuasive is Alvarado’s objection to the Magistrate Judge’s conclusion that
habeas relief is not warranted for his ineffective assistance of counsel claim. (Dkt. 34 at 13-17;
Dkt. 36 at 3, 6, 11-14.) Specifically, Alvarado argues that his counsel failed to present his

version of the facts, failed to file an appeal on his behalf, and failed to call his wife as a witness.

(Dkt. 34 at 14.) To demonstrate ineffective assistance of counsel, a petitioner must show that
apne eee

(1) his attorney’s performance was objectively deficient and (2) the deficient performance was

prejudicial in that the result of the proceeding would have been different. Serickland vy

Washington, 466 U.S. 668, 687, 694 (1984).

Here, the Magistrate Judge found that while Alvarado ostensibly disagrees with his

counsel's trial strategy, counsel presented a defense that included testimony from Alvarado and a

Motion to suppress that sought to exclude Alvarado’s written confession 1 (Dkt. 34 at 16). See

Strickland, 466 U.S. at 689 (“[T]he defendant must overcome the presumption that, under the

circumstances, ‘the challenged action might be considered sound trial strategy.”). Moreover,

5/8


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS

LAREDO DIVISION
JOSE ALVARADO ZAMARRIPA, §
ee
Petitioner, §
vs. § CIVIL ACTION NO. 5:12-CV-155
§
WILLIAM STEPHENS, §
§
Respondent. §

MEMORANDUM & ORDER

Petitioner JOSE ALVARADO ZAMARRIPA, a state inmate confined by the Texas
Department of Criminal Justice, Correctional Institutions Division, has filed a pro se “Petition
for a Writ of Habeas Corpus by a Person in State Custody.” (Dkt. 1.) Therein, Alvarado
challenges his state conviction for indecency with a child by sexual contact on four grounds. (Jd.
at 2, 6-7.) Pending is Respondent William Stephens’ motion for summary judgment. (Dkt. 28.)
Alvarado filed a response (Dkt. 32) and a motion for an attorney (Dkt. 33). The Magistrate
Judge issued a Report and Recommendation (Dkt. 34), thereby recommending Respondent’s
motion be granted and Alvarado’s petition and motion be denied.

The Report is based in part on the following. Alvarado failed to challenge his arrest at
trial or his detention on appeal. (/d. at 8-11.) Alvarado did not raise his sufficiency of the
evidence claim in his final direct appeal, and such a claim is not cognizable under Texas habeas
review. (Id. at 13.) Alvarado’s counsel was not constitutionally deficient, counsel’s failure to
appeal was moot, and the claim that counsel failed to call Alvarado’s wife as a witness was not
raised on appeal. (/d. at 16-17.) Moreover, Alvarado did not provide any new evidence to

support his claim of actual innocence in order to overcome his procedural default. (/d. at 18.)

1/8


- STATEMENT OFTHE CASE ,
On May Ht 2007, Lasied fhe investigator if Hehave anything agains tore $ And he ceply,
"No; Then Ltold him, please stop your people's harassments, or L vail goto the police dep-
artment to report your illegal achvities. The tnvestiqntos, retaliation onquatully
aytested me cathrnot ostest iat tant(alen tequeste (reves iscued in fine cecord) aan wit
ook my Misandes sig\ts being cead, Neves leone comiched alter one month of the
unlasotel arrest sre L.CE.CNS,) Department of frets, xetused recheck ogo thioddh
ny clean I.NS.cecord, the TCE okt weit placed aliold on me withno teason, og
oCCicers laziness and spite I Los uilarofaly detained size Hay 4,2004., unt | Sep -
Femioes 6,2008.,sixteen mowts in costecy nn sor" Signed complaints agaist wae.
were even made, nities indictment ot information (sas presented, wait, 4 (00, 0004s oud
heuer reduced (Tinever viained rng sits, inGowed to my couusel but he ciorses not to xe-
present me legally) On September 17,5008, T ceceived a lake iicinent made lay the
police department citViant Hie compat or victions conseut, also uth an impossible
deake of nc commistion OF-ne False of Cease,alsocattioutttwri ound place iw-ye iwdichment.
The State caised Ayee different offense dates in onlyone Cake offense; First * On jail vecord,
“apa 10, 200%. Second ; Ow Cowvtvecotd® Mag (5,2007, but F was avsested ou Hay the
(44H, a00e,, Thisd S On dick ment, ienpasole date on or aloout Aortl i,2007- The teasonto
sign alate inexplicable imdictmowt, never as made clearto me. My Crest tine below
@ jWdqe and counsel caas seventeen monthisal-tes my oduct; Tdubat cnpud cliat cons
staked insodn indictment becouse T didtt understand ox speak the English lasnguag &
Hreougha tytn) counsel, T cequected a. professional travslator For an exp lancction tne travsldpy
tas denied by He-covr' since the begurivy ast vequeste.aud givenonlyon te final
stagerthe travslator worked than vnprofestonal mavmerhe just stared tote ong who
was Talking, then bo Mie othey, bot Jd not translated cahatever Hy were aiguing
aboootT noteven ines dhen the court conseted me hor te reasons. Lex plained

7


REASONS FOR GRANTING THE WRIT
uiventable ov, appeal From a Final judg merat ” hon Pobdianed- DeCendcwt Letra)
That hedid wotboodsd CIs, genttale, defense counsel di) nok seet-bo support
defendants crebibilty by Pre way oF OPMON 0° "REORESENTIATION aid que
stion did notcancern defendants naractet’ for bw'afulness, oot merely re-
quested From debeudant ithout ufc oF apre ebestowal Lrans ladov'a d! wech
sell selng ascertarion as fo anette We wes Lellitig te Voth dovdag luis
bestinany, Willis Stade, 867 Su 23 85C(App [MiBt] (5)- fos Los reason
Linas cortiorar, should be CRANTED log Anas Yonorable Supreine Courtin Leilewst
o& Tosticu:
REASON 1 1 Bae ee OC Coumcel Was Denied Ou, Age
A dolodawt Wns « com lutional cigvk 40 coovsehouan Iitial appeal Expalle
Loper, 145503 1d 28(Tex.Crtmn, kpp.l%60); The Str icklond Stade veureuaapplies; A.
EDFA Standard oFrevierd appliescouly to He prejudice prong of tye welfective
assistance claim, the State Cort mmustconsider Hyeallegations of deFicient pert
oimance de novo, The State mast dole/ coults decisions uuless twas contrargto,
04 iwwolved ax oureasninb le coppbeation oF clently established Federal, (aut as deter.
mived by Stabe courtleccuse cus ased onan vmeasonabledelermulachion of the
Goats in bigint of Ne evidence gresevrted id the ecord, cord atvives alrancppo~
she dehey winodtion of Ke Gacts ivaliguto Crecord, lutions UsTagla! 524 U5, 362(2od),
Cohor Appellate counsel unsuccessfully made lis own claias,aw) (aited hisow nage,
and roast inlor med \ toses wy Wig ly ddaiclt maces hun debicientaund prejudicial”
The Spree Gurthas dist aquiiable bebweentw0 types o Fclaisiialuing
denda\ oFagistance oCappellate Counsel, Cristralhere aapet towel ar goes Vunkcansd
Faled  assett ov Cully brrvt aparticalar calin, Atoms gor formance cas both;
ddiciewt and projodicia | Pradanv, 0 hia, 488 05.75; Were te Courplaiued oF
36 ’


REACOINS FORGRANTING THE WRIT
Depastneret of Giunivel Justice for imme leas cand +0 be-testored te original status
oFrelease before ne onbair posecstien and tral FGalse and illegal chauge case
WO, 2008-CRS-582-D4., L Finally prag fo tis Honorable Supreme Courhit-ap propsite
‘pence duct U, Tost Aluaiadd is elligiable Foi compensation Ondet LB. 66 vor.
ong ul Convickion wer tex.Gou-Code, Chip, (03 § 103,001,(08,05 4, Hea Hi
and Safety Code Gl4.021 Se6 Gov. Code Corp Public ack 40 3.074,
Respectful hy sub mitted By + goed ase Alvarado folitiana Mo Se THCit-IS¢s (98
vaAcy ACCIANTS DECLARATION
. eT lowe BEFORE MEUNDEROATA, thet 1, Jose Alvasad a has wacttn all Has dks
cmation in the above Writof Gorka tati, T pave svbwatte) a comple te statowl,
and all the information set out above ig Jive Lotte loest of ny twocaledg Bol
Telco request Luis Honorable Sppreme Courtto coaive any \vveglarities possible tn
ligt of Yeo Fact becouse dul “CERTIORARI Wal Frled bg q NOW -Lauy ev and prase
fo Linc bostot my ability sand Limited onderstundingo lth elac please comsidel any
Claims and revlea) mg casttthenavo, dnd please, examinecoongtul convictions like this

SIGNED UNDER OATH BEKORENE, on ts treBPay of Luly 2015

Respeg lly subeu'Hed
4 ee Mant won

T DCFH 1565198

Raviseg One Um

1100 FAL GSS Bd
Rosteeiov, TX. 77583

Placed in eS. Mail box and executed onthis HyefPhday of July 2017

40


vage For 8

Appellant testified both at the suppression hearing and at trial. At trial, Appellant alleged that
he did not understand the warnings provided to him before making his statement, that he wrote down
what he was told to write at the police station, explained that his definition of “private parts” includes
“the breasts, in front on the bottom, and on the back,” and declared that he only touched C.J.’s
buttocks in the mistaken belief that he was touching his wife. Appellant testified that he spanked C.J.
as he routinely and lovingly spanks his wife, and remarked, “Tf that is touching, yes, I did touch her.”
As he had at the suppression hearing, Appellant again testified that his statement was involuntarily
made and denied any wrongdoing.

At the conclusion of the guilt-innocence phase of the bench trial, the trial court found beyond
a reasonable doubt that Appellant was read his Miranda rights and knowingly, voluntarily, and
intelligently waived them when he consented to provide the voluntary statement that was admitted
into evidence, and after taking into consideration all of the evidence that was presented, found
Appellant guilty of knowingly engaging in sexual contact with a child. During the punishment phase,
the trial court noted that Appellant’s statement that he stuck his hand in but removed it when he heard
C.J. speak was inconsistent with spanking. The trial court also declared that it took into consideration
the appearance and expression of C.J. when she testified and likewise considered the demeanor and
manner in which Appellant expressed himself in responding to some of the questions and providing
explanations during his testimony. Although the State had offered Appellant plea agreements
involving sentences of two years and three years, the trial court sentenced Appellant to eleven years’
confinement so that Appellant would “remember this act that [Appellant] committed [upon] an
innocent 11-year-old girl” and would remember how old-C.J. was when Appellant committed the
offense.

DISCUSSION
I.

In Issue One, Appellant contends trial counsel was ineffective and prejudiced his defense,
thereby depriving him of a fair trial. Appellant specifically complains that Mr. Gallegos rendered
ineffective assistance of counsel because: (1) Mr. Gallegos’ statements:and acts before the trial court

in relation to Appellant’s refusal to accept the State’s plea offers undermined Appellant’s presumption

http://www.search.txcourts.gov/SearchMedia.aspx?Media VersionID=37fe7a72-a00f-484f-... 3/17/2015


STATEMENT OFSUPREME COURTESURISDICTVON

On August (8, 2014; Te Unked Stafes District CoortSoolvern District oS
Teas Lasedy Division, Gilad a Kevenrandis od ORDER viLACTION NO.SiI-CY-
155: eg AREA, Tnahickis oxneren, an'ogoorarily fr Gull itigactioer infsanids.
Ecephto Us apply ivi Alwatados proceddtal default. & 3, no2l T \ne FiG RA Gucar
Coot Wasivcei preted ax oppettonity for Gulla Fair lifiqation’to wean anoggot-
howdy to contest Le onlauifol search ad sereure: RS bine 4 “Ge, The legally of
inicaarest P.3, \ineS.,, Ard his detewbioucclaim.P.%,\inell,, Cootty Failure to
aqvie his claims dete to, will rosdlt ina Fondamenta! Niscauttag e06 Justecd
£.4,lone L~ 2. On Match (144, 2015 The SH Ged a Res pouse 40 ax Application (1.07
pio se Nehoas corpus; The Stake ignored an OvvER “Inquest on stating Hach The
Cort Was dente) teteliet requested bg thyplicaitinn presios applicatdone and tye ayp-
lication is motu wold, Conclision on Pespowse: See eg, ARF: On Jone (0,201,
The Gott ot Crenivor, Kppecls wlused to-reviee Prose clatins steced aloong iguoting
Fre ORDER” aid dismissed) cothlovtorttlen order teapp tiation huhens Gipus (LOY piase
as a ceinedy *6 couect ny Staleand Feloral cig huts « Ei palte Aluasucd No WR-73, 133-04.
Tt weqyies (vivrdiale determination (iLtlis Hovotdble Soprewe Covtt te jastity
nike plication of-steled ales and orders of laa) ard devtclion Gam viokimal practice

Hat resalte) ta fondumentl Nacastiag oo FJostice «As stated ix Hemovardom
and ode WERK. U.S. District Goth, SOOTHER LAREN DWISIO


7 beak for Mivondes Rights
Standesrdof Il6b1

UNITED STATES DISTRICT COURT L
SOUTHERN DISTRICT OF TEXAS Nolarca
LAREDO DIVISION

JOSE ALVARADO ZAMARRIPA, hat ently Cles kK
ALTON Weta St; Ste 2Ot

vs. CIVIL ACTION NO. 5:12-CV-155

§
WILLIAM STEPHENS, . PO Box. 24 bag ele YX,
S

monn
=

Petitioner,

19040

Respondent.
FINAL JUDGMENT

For the reasons set forth in a Memorandum & Order of even date, Respondent William
Stephens’ motion for summary judgment (Dkt. 28) is GRANTED and Petitioner JOSE
ALVARADO ZAMARRIPA’s “Petition for a Writ of Habeas Corpus by a Person in State
Custody” (Dkt. 1) is DENIED. Accordingly, this case is hereby DISMISSED with PREJUDICE.

Because the Court concludes that Petitioner makes no substantial showing of the denial
of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2).
For this reason, pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this
decision would not be taken in good faith and, therefore, should not be taken in forma pauperis.
See Fed. R. App. P. 24(a).

The Clerk of Court is DIRECTED to send a copy of this Final Judgment to Petitioner via
certified mail, return receipt requested. The Clerk is further DIRECTED to terminate this case.

This is a FINAL JUDGMENT.

SIGNED this 18th day of August, 2014.

aT AHS
Arist {CERTIFY Guinea States District Judge

DAVID Js BRADLEY, Clerk of Cour i 4 G
7 Miva «oat 600d Cavso’ semains ondelined,
Norlonw State Ue Suan 29 2S 24

1/


6. State every person, business, or organization owing you or your spouse money, and the
amount owed.

Person owing you or Amount owed to you Amount owed to your spouse
your spouse money

a sf SpA
44 7 s_A/A___
N/A $__p __ s__Ai/A__

7. State the persons who rely on you or your spouse for support.

Name Relationship Age
ALLA M/A M/A
N/A MA M/A
MA AVA AA

8. Estimate the average monthly expenses of you and your family. . Show separately the amounts
paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or
annually to show the monthly rate.

You Your spouse

Rent or home-mortgage payment
(inelude lot rented for mobile home) so s_W/A

Are real estate taxes included? [J Yes No .
Is property insurance included? 1] Yes No

Utilities @lectricity, heating fuel,

water, sewer, and telephone) s_@ $. AVA
Home maintenance (repairs and upkeep) 36 3_N/A
Food s_p s_ AVA
Clothing sf s_A ZA
Laundry and dry-cleaning s_g s_N/A
Medical and dental expenses sg s_MW/A



107

. VOLUME 7

had a right to an attorney. You had an attorney appointed to
you to represent you. You had a right to have a jury trial.

You waived that right. You had a right to confront witnesses

10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25

against you, as you requested, and that happened. You had the
witness and the victim here present, so both of you can see
the witness or victim here and so that you could question her
through your attorney. And, again, if you were to look
closely at your testimony, even at the statements that you
made right now, there are a lot of contradictions in what you
say. And, again, if there's nothing else, then, at this time,
the Court, having found you guilty of the offense of indecency
with a child by contact, Felony 2, as alleged in the
indictment, the Court has assessed a sentence of 11 years to
serve, and at this time, I'm pronouncing sentence and -- or
remanding you to the custody of the Sheriff's Department so
that you can continue -- or continue serving. You will be
625 daysorcdit
given credit for any time that you've served, so ‘you'll
continue serving your sentence of 11 years in the
Institutional Division of the State of Texas. Good luck to
you, sir. We'll stand in recess.

THE BAILIFF: All rise, please.

(Bench trial concluded)

kk kK Ok

DEBRA ALVARADO CAMERON, CSR, RPR



REASONS EOR GRAVTING THE WRIT
order. Nea she Filed Hgrorder, publicservetrts paid ovr louse rent; and then mo
Feamily (vite ard Yyice dougutery core Sropped off atimy house). This is how legally,
public sewvaucs dbkaived «restraining order agenst ine, sith extorttoniny wife cas
coerced to; also, public servants tWyectened her in case she. testify Luis troth and
or iC she bestifigon ray loeb oot clu dren will be taken away, My wlkebeingmy
only true witness,also been in thet Ssinessies list she cas excloded totestify ontre
stands Inucalationa HAckile 3.04.0) of Texcg Criminal trocedurestating O€Gicial Fs-
conduct, Cen} wiolakior of Yue Process of Las, Foy tris reasoty, tuts Wik bee Cothiwan
wold be GRANTED Cou thick disimtsing false charges A2U5-CA BLAS
REASONS. Unlawful Malicious Seivure With Intent To Obfun A false Evidence.

On Tone (4,207. A police detechive Mu Caslos\illarrea\ csi Ha sewe dr ming oula—
ally witvoon aseatch coagvant seized mg gessonal documents (driver License and Secical
Security cold) witout my effective casent, From my wie, wir malidous intenttoobtain
a False shes! inn Cos evidence agaiust me ilte said Haat 16-1. d%2 not invent ov made
‘he statement T sould haye alot of tavble, Tn viclattion oC TL Real cove. § 34,07 and
Fhe FOURTH Amendment cshidh provides Ha, The geople sual be secove in Hae ir pesson s,
woses papers and po sessions Formal onveasondble sevceureor searches. US. Const,amend.
on) (tH, A aptopiation oF property 1s vislaatol Gif is wiliout Me oomers e (fective
consent. Lnvidlationo € Ti Penal Cobe § 31.01 Note 4. Shillew v State 8905 2d 899.
Investigator Villarreal told my ike LE L need my t0,cotd, T Loald haveto goto his
office, and make adeal in exchange. Lent to hicoltice, and he caant mete con-

Fess toactime Ldidnot comm, L said. No! On Reporters Record ts Paetrati Rawsceut S.
Q.My stent lorings up isthefack tat yoolnad hts). is Haat correct?

A, Couect.. ;

Q How did ad getit sit? ‘ !

A. Lebrtatned + From nis caiGe Mis Aluavado. Totahan of -Hhe FOURTH Nmendivewy «

i6


10

11

12
13
14
15
16
17
18
19
20
21
22
23
24
25

105

VOLUME 7

this offense. And as far as what the appropriate sentence

should be, I do realize that the State had offered two_years

and then three years. You know, at that initial stage, the
Court doesn't -- is not aware of all the facts. It's not 7
until the witnesses testify and -- you know, including
yourself, in this case, and, obviously, it's a serious
offense.

Now; “I don't ‘Know: what the. proper ‘séntence
should be; but I think: I'mgoing to sénd-a messagé; “and
something that will: make you ‘rémember this act that you
‘committed to°an. innocent. 11-year-old: girl. And !so.you will
remember: how old this’ person was’ when you. comitted. the
offense;: “I 'm-going’ to’.assess jpunishment..at 11 years ‘to serve,
arid I'th -going-to.ask that-before I: pronounce :séntence and .
¥emandTMyouto. the .custody..of the: Sheriff's Department , if
there's anything you wish to say, you have an opportunity to
say that at this time. anything you want to say, sir?

THE DEFENDANT: (Via Interpreter) Yes. That I
do not feel myself guilty. And as my wife promised to me,
that she was going to do this to me because she was enraged
against me. And she also counseled the girl. I do not feel
guilty. And only they mow. This is not the first time that
they get me into trouble. Problems. But it had not been this

much. I've been around a lot of young girls, and I have a lot

of family, nephews and nieces, and I have done nothing to

DEBRA ALVARADO ‘CAMERON, CSR, RPR


IT IS SO ORDERED.

SIGNED this 18th day of August, 2014.

Diana Saldafia
United States District Judge

TRUE COPY I CERTIFY
ATTEST:

pavay } BRADLEY, Clerk of Court
By Deputy Cleric

8/8


STATEMENT OF THE CASE
The inverted Falseovidence cas admitted at trial yy use oF a pexfuved testimony, Hy,
Carlos Vitlagteal (inveshyatot) being under oath lid in courtaboot Wredeal-tade we
mode (an involowtug conGession in exclavige or my dues License), knowingly iuten-
tonally he deshoged my innocence sepasateing meloy farce Fromeny Family destroying
one as sell; my Family cere treatened by poblic servauts in case try testify,the
Yrath of {Me story outhe case, they would hauctrodole, Wheat teshiifsome of
Jretioe stoly, He court ignored iL abusing its dcrebiovy in result Hne tial cout
Knooringly, ina plea. oF natgoi Hy, cath False cathnesses called o Bee stud! Bn Aanwory
1G, 2004, Ika beuchtrval Are cowt onfairlly Foowd me gui ty and sentenced meta
eleven geais tn prisou Fora crime that sustain nat commit {Thiscan be proven ima
need, and jury Farr {xdal) Tuasgven 625 days of cred iL, Ackoro Gallegos, sor N0,240
17384, untairily cepresenfed me at ital, Wave File austice of appeal as he promised.
On August 25,2009.5 Filed om Application for Writ ol Habeas Corps ander as ticle (01
plo seqs.a comedy but because oF iy lack understanding of He English (anguag cand ee
Law, T.d0d nok File 4 Memmorotadovn of Lav) the stake errased the application apposed (4)
Loy mistake,accepting tne errs the Stale dd not Filed a Respowse to Hue Application ,
the State bransmibd one copy tothe Court ot-Crivminal hypeals:Th Hae conterto t
inetFeckive assistace of counsel, The CourrotCeimma\ Appeals GRANTED ax aut-o(-twe
ay pe iden was nade to be ansivere) in 180daqs by trialcourty fynoriny ax ordey,
+the tial cout Faila) to ansulet all issues iv (80 days An out-of time ay pol ws CRANTEDTM
on wly 12,2010. 6x parte Aliarad o No,WR-75,133-01. On appeal,T persomally in-
armed appellate counsel ofall vinlations and procecoral defaalt: Appellate counse |
unsoccessFully saised his ooan claims and made hisou appeat ot notas T cnst-
sucted and sequeste) to him, Ln on vnpllAished option, the Eighth Courto€ Appeals
1 Toe wattnesses called +0 Feng ast kau), nor see anytavg hey aftisne) it wastwe.
q



REASOWS FOR GRANTING THE WRIT
App Sawtutenio 1848) pet granted), The defendant was entitled to habeas corpus
wtliel becovse the indictment was nat Himely presented onder Tex, coDe CRIM. PROC.
aut 3LOl This redely oF4ke trial cout tHucallomey vepresenthliy tucaccosed the
atlorveg sepiesenting Pre Stale audall peace offers todos® condo Yrewstl vcs
as bo tusure afa\l trial €or beth Pre State and Hiedelendart; nobiinpai ¢
the presi mption obranocence and at Ye sowmetineakbord Hae. public the bene
Ciksoba Gee press, Mbcle 2.03 oF Tex. Crim Proc A2US.C.8 1983,
ReAsoNg7, Be WO-COMPLAINTS SWOtEA/NOR SIGNED IN RECORD
Thai watctment watt nhde by Lie police depatimentcalthoutpre supposed
victins consent Pete 16 to Covrplaits swornand skjned pressing chasges against
me. the dudictnent eis Gectally deFechye and itshovld be VOtD, Tu Stade v. Willows.
488 Sud 14465 (tex Ciior, App. (Qa) Tae gofendartt was entitled to dismissal of bis
chases \peensce the stecke Failed tocomply wilthn Hae tne lina'ts provided by the
Tuberstake. Ogee ment ov Delerinets ket, Tn Statev, Shack 140 S0) 24.405Cte x,
App ~ Fortuiortn 1841); Tae Autal curt propelly disused Hee iudichment beccws ¢
the Stabute o& Uinttattons ad exiled. Since HredeFendaw}had wot been Formerlly
Chaiged Compal; informabiovor iwictmewt. Dn Castes v, Stabe 348 sued 220,
case. \ (ex. Cain App, 1266) the jurat tothe complain porpoits HatVre oattle cuss
ad mister by Ye County Mtloney for Jones Coovcly Tees bot ve weatd seblects
Fe uratnas not signed The judgment esas reversed and the prosecution uyder e's
inbormallon was ordered disumised, Ks Lu this Polttiauer MWaradoscase Ly Parcel
VeStabe, 317 Suy 2d 208, Case \Cex.Cvdm App lST)T he complean tenes wal
sayin to before any 0 ictal of pewsov 0 Fautto tyedu Peluticoee Mlvcxeadas
case notewn had in record any Coveplaiutora fAidauit. Jn Barttngta nv. Stak.
117 Tex. Crivill 32 5 2583 fs antharity ot te holding Hat'as a bass For Yue

26


Alvarado filed objections to the Report (Dkt. 36), which the Court has considered.
Alvarado’s objections include that he was arrested without a warrant and detained for 16 months
without being indicted, that the evidence was insufficient to support his conviction, that his trial
attorney’s representation was ineffective, and that he is actually innocent. (Dkt. 36 at 1-15.) The
District Judge, having made “a de novo determination of those portions of the [R]eport or
specified proposed findings or recommendations to which objection is made,” hereby ACCEPTS
the recommendation of the Magistrate Judge (Dkt. 34). See 28 U.S.C. § 636(b)(1)(C).
Accordingly, Respondent’s motion for summary judgment (Dkt. 28) shall be GRANTED and
Alvarado’s petition (Dkt. 1) and motion for an attorney (Dkt. 33) shall be DENIED.

Discussion

Each ground for relief is discussed below.

1 Deprivation of liberty

Alvarado objects to the Magistrate Judge’s conclusion that his claims challenging the
legality of his arrest and detention are procedurally barred. (Dkt. 34 at 8-11; Dkt. 36 at 1-9.)
Specifically, Alvarado argues that he was arrested without a warrant! and detained for 16 months

without being indicted.” (Dkt. 36 at 1-9.) The Supreme Court has held that where a state has

' Alvarado contends that the Report and Recommendation is inaccurate because he was
not arrested by Immigration and Naturalization Services. (Dkt. 36 at 5.) However, the Report
only states that Alvarado was placed on an immigration hold by INS (Dkt. 34 at 8), which

+ Alvarado agrees with in his objections (Dkt. 36 at 5).

? Alvarado now for the first time alleges that his indictment was void. (Dkt. 36 at 1.)
Federal courts will not consider claims that a state indictment is insufficient to confer jurisdiction
upon the trial court when the issue was squarely presented to the highest court of the state and
that court passed on the merits of the sufficiency issue. Alexander v. McCotter, 775 F.2d 595,
598-99 (Sth Cir. 1985). When the Texas Court of Criminal Appeals refuses to grant a
petitioner’s request for relief, it essentially holds that Texas courts have jurisdiction and the
indictment is sufficient for that purpose. Jd. Here, the Magistrate Judge found that the Texas
Court of Criminal Appeals refused to grant Alvarado’s petition (Dkt. 34 at 4), and thus the trial
2/8


REASONS FOR GRANTING THE PETITION

Tamm sewing celief For Full ond fait Ltigatn denied act trial, The State ignored
a order“that iesolted (maFundamencal miscarriage of justice cola thee 6 tae vefured
fo tevtedd and Cowect my claims cayete no joty «ould have Food me guilty in-tiia lait
Use oF a pexjuied testimony, a.cleas violation of State awd U.S, Consttation onthe:
2c010,(yocedoral default), States evtoncous deasions denying seuveuis in coublict
with U.S. Dichitct Cooths Memolandvvn and Order, thak requires aulimmediate deteimin-
ation inthis Howatable Soprewe Cour t-te Contec misapluahon of stated vules of lag once
and For a\ and justi€y deviation From Due Process of Lav «egos APRA.

(NDEX OF CONTENS Pace NO.
REASON# 1. Order For Full And Fair Litigation Ignored By The State. 13
REASON# 2. Restraining Order Obtained By Extortion Aud Thicats i)
REASONF 3% Malicious UnlauCol Seizure With Ltet To Obtal nA false Evidence ——.16
REASON? . Conyiction Obtained By Use O6 Re jured Testimany a
REASON 5, Conuiction Obtained Gy Use OF Conspiracy 18

REASONA5, A. Conspiracy to Steal (4
REASONEG,. Tatewtonall Unlacsbul Arrest Obtained Ju Retaliation 20
REASONAT, Delendant Tx Custody And No Swictnent Presewed vA).

REASONAE L.A. Trial Court Abused Tts Discretion 24
REASON, B. 1A) RECORD, NO COMPLAINTS SUIORN NOR sig we), —_____—16,
REASON #B, TL mnposible Date OF The Covemisstou Ob The False Olgense____A1.
REASON Q. Uinreasoncdvle(Ls.)1.CE. Dept, Placed A Hold On Me 28
REASOE | O. EEC ective Assistance OF Gove Ws Weaied At Trial __3%
REASON [0,A. Thal Covnsel Luteastionally Closes Not To File Hotion 4-4
REASON H (0, B. Copnsels Self Serving AFFidarit. 3
REASONA (0.C- Trial Cott Lgnoving Order From Court OF Criminal Appeals 145
Reasonee (0. D. PREJUDICE 35 #
REAONH (LE FEective Assistance OF Counsel Wes Denied On Appea[.__3, #p
RekGodd ILA. Debicient Per Formance.—, 3 "
REASONEIL B Fear From Like Stedemet 30. HF
RRAYER — 34,40
AFFIANTS DECLARATION 40

i}



Ground Two is a speedy trial claim in which Applicant states that he was

“confined and deprived of life in Webb County jail from May 14, 2007, to

‘September 17; 2008>-And-nio-complaints; indictment-or-information-was-presented——-——-
[until September 2008].” (Third Application, p. 8). Appellant has not alleged that
he ever requested a speedy trial before he was tried, and as such, has waived the
issue and cannot obtain relief. See Hartfield v. Thaler, 403 S.W.3d 234, 239-40

(Tex. Crim. App. 2013).

Ground Three claims that Applicant’s conviction was “obtained by use of
extortion and threat” because the detectives allegedly extorted “Petitioner’s wife
(offered to pay the house rent if she file[d] the restraining order).” This claim does
not state a specific legal basis and so does not assert a ground for relief. Ex parte
Hogan, 556 S.W.2d 352 (Tex. Crim. App. 1977). Further, it is repetitive of the
claim denied by the Court of Criminal Appeals in the second application. See Ex
Parte Robertson, No. WR-37,983-08, 2014 WL 969714 (Tex. Crim. App. Mar.
12, 2014) (not designated for publication) (sanctioning another child molester who

made similar repetitive claims).

Ground Four is inexplicably labeled “Trial Court Lacked. Authority to
Dismiss with Prejudice.” The substance of the claim is a repetition of the speedy
trial ground and an assertion that the “court should have dismissed the case at the

moment, because even on record is not on file the complaint, arrest warrant or any

STATE’S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS PAGE 7 OF 11


PEON FOR GRANTING THE WRIT
465,44 L.Ed. 2d (027, % S Ct 30.57,

Tr Khmelmany Mavtisas, 477 0.5,365,4] L £5 20 305 106S Ct.26 14, The case
Where Hicacessed had been demied an oppectonily te fully curd Fairly lbugacte tre clauin of
FOuRTY Avner meuit, Assistance obcouwstl was inelfecH vt Yecouse ot incompetent cep-
seseataloron Four Rmenbunt dsoes, Dishich covtshorld weeonside. {we lightoG he
teivening decrstons chet uh Hac accdse) bad been psepudiond log Hag Pacoryppteace« Ther be
basting, Feder Walveastol pus Feview ofa Fourth henevdinentclaiin lhere Lestate muelved has
p10 vide) ancppocturnity Gor Cull and Fay tiga du of thar claion does not apply 40 Sixt fee
andncint Claims obimetfecttue assictasace oF counsel whan aye. founded owe ly onincem
getent cepresontation citli respect too faut bina dmurb wave » The vygitt Ao elector
assistance oF Couvid 1 wot coniied Locbrtal lot extends akobs Hacbins aqpeal as obra

TheSigth Anendment wandatis Hak +hestadebou Bre risk © Ccons tila hinalhy deFicient
assistance oF-couvel .

Critwtnat defendants are net barred Com vindicating Kaitvigli to eFlectiveassitauce
oF coowsel Hyoagn Federal Wobeas Coipes review eluore cormel! primary enor is Farlure be
rayea tively request For the exclasian of legally seized eudence adbich is typically
reltalole and ot ban ne wnact pravathiie Wormabion lworlrty on Sire quilt ev tinocence ofthe
detendant.

Tn detervaiing Whethoy prfudice exis tsaoith 294) boa claim Wat acrtmiue\
doendaint\os Weencemied Wis Sixhr Avencbrent riplet to ef Fechrusassistarceot cousel,
a. cout mos £ consider Ye totality of Meo evidence before Wat ge or fury «

Thc coaducrobcounsel Foran accored, Ealing to Flea hmelymmotion to-sappress
evidence geized Mvtelahien—ot Line Fouts kuendnaakt ¢ Coustitutionully defrerensd mser

dre Sth Amend morts DeCodant inom USoat wnlowbul Search asd Seteureand an
Unlacstul ariect, teval coursel closes notto Flea Motion domi proseation.

33


rage 8 or 8

C.J. as he intended to spank his wife as he did routinely. Appellant denied that he spanked C.J. to
satisfy any sexual desire. ;

C.J. testified that when she awoke, she felt and saw Appellant’s hand touching her genitals
underneath the blue jeans and underwear that she had worn to bed and that Appellant was located
where her mother usually slept. Ms. Aranda, the outcry witness, testified that C.J. cried upon being
interviewed, pointed to an anatomical drawing to show that Appellant had touched her vagina,
causing her pain, and disclosed that Appellant had unbuttoned the pants she was wearing and touched
her under her underwear. .

Having viewed this conflicting evidence in the light most favorable to the verdict, we find the
trial court’s inference of intent from the evidence is reasonable based upon the combined and
cumulative force of all the evidence, and we conclude that any rational trier of fact could have found
the essential.element of intent beyond a reasonable doubt. Hooper, 214 $.W.3d at 16-17; Jackson,
443 U.S. at 326; Clayton, 235 S.W.3d at 778. Issue Two is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

January 18, 2012 GUADALUPE RIVERA, Justice
Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)

a Appellant’s brief includes an affidavit that is not contained in either the clerk’s record or the reporter’s record, the two
components which comprise the appellate record. TEX. R. APP. P. 34.1. We may not consider factual assertions that are
outside the record, nor may a party circumvent this prohibition by submitting an affidavit for the first time on appeal.
Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004).

http://www.search.txcourts.gov/SearchMedia.aspx?Media VersionID=37fe7a72-a00f-484f-... 3/17/2015


evidence, “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.” Id.
oo

Here, as a free-standing actual innocence claim is not a basis for federal habeas relief, the

Magistrate Judge considered the claim as a means to overcome the procedural default of _
Overcome the proeaaae

Alvarado’s other habeas claims. (Dkt. 34 at 18.) However, as noted above, this argument does

not succeed either. The Magistrate Judge found that while Alvarado maintains that_the_

complainant recanted her testimony) he does not provide any evidence to support that assertion,

such as an affidavit, nor does he present any other new evidence to support his claim of

innocence. (/d.) Moreover, Alvarado’s objections that he did not commit the offense are also
conclusory. (See Dkt. 36 at 10-11, 14-15.) Consequently, summary judgment on this claim shall
be granted.
, Conclusion

The Magistrate Judge’s Report and Recommendation (Dkt. 34) is hereby ACCEPTED.
Respondent’s motion for summary judgment (Dkt. 28) is hereby GRANTED and Alvarado’s
petition (Dkt. 1) and motion for an attorney (Dkt. 33) are hereby DENIED.

The Clerk of Court is DIRECTED to send a copy of this Order to Petitioner Alvarado via
certified mail, return receipt requested. Also, the Clerk is DIRECTED to send a copy of this

Order to the Attorney General of the State of Texas on behalf of Respondent William Stephens,

Director of the Texas Department of Criminal Justice, Criminal Institutions Division.

3 There is no constitutional right to counsel in federal habeas proceedings. Elizalde v.
Dretke, 362 F.3d 323, 329 (Sth Cir. 2004). Rule 6(a) of the Rules Governing § 2254 Cases
provides that a court may appoint counsel if discovery is ordered and there are issues
necessitating the assignment of counsel. Here, there are no discovery issues necessitating the
assignment of counsel. Moreover, Rule 8(c) requires that counsel be appointed if a habeas
petition raises issues that mandate an evidentiary hearing. In the instant case, there are no issues
requiring an evidentiary hearing.

7/8


IN THE SUPREME COURT OF THE
UNITED STATES

TRIAL CASE NO. 2008 - CRS-584- D4

JOSE AWWARADO, PETITIONER Pro Se,

VS.

THE STATE OF TEXAS, ef all”

, RESPONSE TO APPLICATION 11-07 Pro Se
“STATES RESPONSE DEMING REVIEW, IGNOR[IG AN) ORDER

“APPEND F.


REASONS FOR GRANTING THE WRIT
vas noha man oF bg 0010) Taso fold hinctlaa\ he lied aloaot-his promveo (stop bothering
me; When Teomplained +o hinn,1 told hinacto stop botkering me once ownd forall; Ke was
blinded Crom rage,d pexsonally head cian MéVilsret gave an ordeto is people in tas
agords. Follow \iion canyiolere re goes and take awey his mong, low Hts going to be done
any «gag lt” These men broke into eg hotel room, aid stole way RS money 4 1.500 Us.
dollass, tne owly money vat & rad to sopport img Gawnily. Lavialation of TX.Penal cobe §
(5.04 Note 5. stating’ The conspiracy tosteal \s complete at Yee time itis entered into
wltrovtong relerince to sdvsecuentt tel, Aso Td lmal Code § 34.02) prowdes, A
public sewant commits an offense) a State jail felony iC EhevalvcoFtheuse of
fetaing misused is 4 1,500 o¢ more but less than 4 40,000.
REASONEC. Intentionally Unlauabol Avrest Obtained Ly Retaliahion.

Tnvestigats Wilucreals peoplednnis contpiracy cowbivwved harassing me. conFronted
fin and complained to htnn-taat 16 big people stole wy money hate ge he need Fram
me? 1 Nsotdld him, Please, stop the havassimercts,o¢ VU go kort police depal tment
aand topor’ nis (egal activibves? T also asied tniwa LE ne had anything against me ov

lint is his concern? He answered Haat} hedovtt rave noting against meaT sat) stop it
an refuloaton tae investigalor uulacatullyattested me estmootarest iar an and saith
jny Mitandas cig his being cond. He bedtiCied in coortdhat {ere was aoaest warrant

Q. Dud he inform goo (Ynere as a caoutant pending on case?

A. Lard ask atom i€ he iad someting agaiiast me, And hesatd NoCCRG:17 14-22).

Tnectigator stated I dont know i Ft was atthe beginning of ov conversaction bute knows
Haat Hort cons correntlyno asest warrant (R756, 7-(2)+
€ Ln abet grounds the avtest was made, tio chualges, wo Complain +s evev made?

“No Stake-shall manectentoice avy lacs vhich shall abridge theprivileges of
irnmonthes of citizens of the US ..nor shall any State deprive any peison le liberty,
oF property cit out due process oF Jovy, no! denyto ang fexsol witin (ts joristicton te
equal protection of the laws, 0-5.ConsTiamends, +4 and (4th.

0


LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:

TRIAL COORT, 46GTH DISTRICT COURT WEBG COUNTY, TEXAS
DIRECT APPEAL ELE ATH COURT OF APPEALS. EL PASO
ARTICLE [le0'7 HABEAS CORPUS, COURT OF CKIMINAL APPEALS, AUSTIO!

WRGERS CORPUS $2254, U.S. DISTRICT COURT SOUTHERN TEXAS, LAREDO DIVISIOA)..


REMONS FOR GRAINS THEW

Coonset Caited to conduct any meavinghul prekrral discovery <gebthionel was deprived of
etfective sepresentation S74 F SuppatBor-B03. Pebiwoner had been prejudiced & y bys
atlocrian’ Incompetence in ell stages , but we most important, Pu nishment.

Patdioner hos demnostraled prejudice euortiong hr this petthonersspocila-
fron tha cluuackets cathnes ses ik warhigation Goold Wave a Fact Favowoly f-
lvenced Te Ovi, assesmentot powishonent, Mul burn qt 271.

neacontio.p. PRESUDICE

AEDFA-Standed of Review applies only toYae prejudice prong of the
imellechive assistance claim, the State court must consider dhe allegahion 6
ol-deFictemt petformance de 20v0; beewse cours’ dd not disclose issue < Hust
enlitleme te be released, He classes intentionally’ not 40 cepteseut me lex
gally when he did not brivge op te issues ag Unlawtul Arvest” Unlassbul Seah
and Seveute, ‘No Meus Qh Bethy vead Wen asrested ta tetalighion cotthout
Avtest wattewt? hp Complaints ever made againstne, Wo Sadoinandsigned aff -
davits,, ‘changes made aitovhe opposed vichins cused: facts et ino
Jovy ackivg reasonalle would have Found meguilty witha Der ured beghinany,
which counse| Relused Ivtewtionally “Meek bo prove. The Lroal Court Abused
oF Mts dkcsel Bin Be deas et rors,althioug teuders ls de novo iPticdenial ig
lysed mamattet o CConstiluhonal laws Gener ally iCoortsrevfecatiedental o &
adebendunts motion to dxmas Hac case only afer Hredefenduwt has been
Cowviehe} and sowtenced, Nevertliess, Ke co (lateral order doctringa vevrert ex
eption to twig nal jadgvent” le, allows hanediate determinarion From
otders WhakQi) Conclusively determine ted! sputed question (4) tesalue aun,
important sve completely separate From the ments oF-f,0 action. and
(a) eKfectively unteviable dehermivachion 10m tis Honomble Supreme Couv

BF .


QUESTION(S) PRESENTED
4.4 When oun ORDER Cor Full Libigadion is givew, can ih just beignored bythe State and
refuse to give mebitfair litigation denied af -tial? 2.fn tue interest of justice’é Can
Toblain a.jyry trial +o prove try irmnacence on a.crinne Hat Tve never adonitled I dadtestbied
vot commit ® 3, dtahece ig The trust and grotection cshen public servouts ug es theeat,
coetsn hasasmenand extortionte obtain arestrainingorder againstme ?4,4 Ts
legal for a.poblic cevvant caitinalicious intenbiou, to iN ofan eb lective congent, to
se ite bersonal documents without order and use Her beet innocence and uses
@ purjoied testimony to olrtain a.couyiction? 5.&h public servant osdtischeme in
mind, cafes people inliig conspiracy to folloca mee, haxess meand clientts,stole my
money, cd lw T tysed-to ceport hisillegat activihes; He asrested mein retaliation;
Tr what grounds Hhearrestasas made, no charges mo cxtectarasvan tno Mateandas ets
beiny cead ? Cas onder Hoe lac ta be basicaly abdacte)-inavceraled sicteen months
tajdvost iichment por sworn and signed affidautt shawn,as.a legal proceeding, Ts Article
28.66 and 32.01 06 Texas Cotiviinad Procedure Uneovstitutionad 7 L.GEDepartinent
officers, tebusing togotwoug my clean LN, record, Hee TCE. officers placed a. Ineld
onmeust byotticers laziness and sptte,é Te thut aclegal proceeding 3 Bédoes the
drial court howe authonity to‘alouse its disctetion, being aware uses a fale, twieliary
evnlencetochbain aconviction? LéTs eCechivetsickance oF counsel when We
iwtertonally chesses net to legally cepresert me ta mang ways? 10.4 Onappeal,
appellate counsel ve fuses bo caisecand presowt tye claims steed and requested
fo brima Le cowect Fox anappellale cours to case his ouan clallns unsucessesstally?
E\aTs this a fais trial? With all es power oF wis Sopreme Court Mla,
do someting to correct Wa tHBgGol conviction), Can you PP? Whatis yoo
‘opinion’ on Staies Responses ?°¢


REASONS FOR GRATING THE WRIT
Aecisn  WO00\d be able Yo Collec evidewceto prove my innoLane, te prove Ve
false enidence resented and admnitle) ashy, Lwouldloe able fo prove ce perured
testimony Grom ives tigertaf, orhich Weis Lae only Season Lan inceucorocted,
because Tans dented an elective assistarce of-coomsel. TCE, Jopaytmeutt off-
ices’ laxiness avd cyitt teed me maiay Hust T att explain. For His
Ceasouy, Luc onomble Supine Coot shoul CHANT LCE tpormudy Lam legally
ithe nS. sthce Lhe (9405. I.NS. Coad Mo, AUTOIL; Denwer Colorado 155."
REASON #10. Ebechive bsstetance OF Coonse\ Was Denied AL Teal Actual Male”
The ogsictance 0 Counsel cas tnekfective because oF noampetent tepreseit
Yabvon ov FOURTR, FIETR SWCTH and FOURTEENTH: Amend nent eae Mealy.
Trtcal coonsel bac Avlore Gallayos. Chioses notLo cepresevit mne equally, before-
\nand, netrted to Fore meto accept a two years obey to be Free In thet
momeurt (giv years ago) T did notacceyted lis of Fey (because Sumply, Lam not
gut Uy oF ang False cxiiminerl Fenst.. Ebfechiveassisunce otcosvisel ts lacking at
Fofal ealkon the conduct o€ counsel Fell vellod on dbjelive sfaxdatd oFreasonajle-
ness insuch & Gay ag to underinie contidence im the cotcome ol Hae tila.t
ak punishment ye ckondatd 14 oneot Fundamenterl Caithness »,Pebilyoner hada
signt to the ekGective assistance 06-couwse a Lwal. U.S, COnRT. dwar) SU,
Poll vila basa, 287 0.5.45 (1452), Counel maustact caitlin te runge oF competence
demanded o& counsel iw criminal, cages, Me. Mana v, Rrchardcon 347 U.6.15°(470)
La Strickland! Wasliag tom’ 466 WS. 66 6(i484). Nhe Supreme. Cour baddressed the
$edoro| Constilobioncel staulard to delermine wether counsel sendeted ceasovey
vly elfociue assisance, he delendowt must C6’ shed Anak counsel § pal-
formance was deficient, Ara Couns) made envors $0 serious Arak ne cuas not
Functioning as Rae Counsel guaranteed Hae defendant bu, fhe SOT bameveert
4



STATEMENT OF THE CASE

Tne Facts toYneappoiite) counsel ast explain iwhere trial counsel cefused te declare
Fue Fucks Aahentitla) me For ease before trial;ltis Hue steategy”cdaso conmpict
me when he refuse) to call ny onlytoilness tote stand calling to testify on mg
behalF aboot; ny casacles,victims chageac fey Naedts ; ivy coumse intuctiowclly ptes-
ented me as guilty, protecting hinelf, betoreliaud he ot ered an offecol-two years,
and tiled force me to accept it-to oe Fie, botas guilty; T relused his ofFer.tien

he thieckene) me saying aah SE Ldrd not accept his offer, he will get ve 2years i
prison; L caw see his anger sahen again efised his offer because T wart a jory teiallot
Ayia) couns¥odviced me-to refuse my jury trial cud let-the coort convictine,so he
can be cbleto File an cipal for me to Ipeable-to ceplace Hatinelfechve coowsel, Mi,
Astovo Calegs’ (counsel tld me tuck ecaas not competent to beat Hue State and
tuat’ T eras going tobe guilty because state offices have decided to mane wegallly,
even if Lam not they call mae me, bot he also soid Haat; 16 T hod money,ov if
~ Laork For a castel Lord. give nim a nome, then he would makeadeal cath p.As,
fos metoloe Free in haat moment because, cartel Lord “aud DA'S know eachother’
Tals vetoed Hat offer becanse Tarn not agarg meuber an) t dovt know aly
caske\ Low. To replace the ineffective counsel, T eased my aartd fnc moto be ableto
spect aaifh, Me judge because Tuas not allowed to speak, bat Hre-judge do nota lle-
“wed meto speak with hin, Been no other waa, had te agree with counsels

misaduice,ceFusing my jury trial and let the courtconvict m4 for acrimethat L

did mot commit, so ne can beable to File anappeal; tits piomise asus made befare
awd alter Khe convichtansEounsel Cale, henever (le Aneappen\and aloguidnedmne,

* TinCormed counsel that I was vidlavstylly axcested, and Hat T wos tm custody For sty
fen moniths witout Tndictment ov Information presented, Appointed counsel chadges not
to +rmnely nov ever vequest ina Motion to dicmise the case pursuaint fo aviolation oF feds.

FouRTHAmendment, andor Motion to quash indictmant pursucunt to wiolation oCarticle 28 06
Gnd 3L.OV 0 ETex. Catlin? 106. being aeare Maicicos Latent vow lly? Basically torictechonysel (CRG? 7,23-25).



JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case
was

( ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: , and a copy of the
order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date)
in Application No. __A

The jurisdiction of this Court is invoked under 28 U.S. C. § 1254(1).

| For cases from state courts: .
Jone
The date on which the highest state court decided my case was F&
A copy of that decision appears at Appendix 0

901s

[ ] A timely petition for rehearing was thereafter denied on the following date:
, and.a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date) in
Application No. __A

The jurisdiction of this Court is invoked under 28 U.S. C. § 1257(a).


Transportation (not including motor vehicle payments)

Recreation, entertainment, newspapers, magazines, etc.

Insurance (not deducted from wages or included in mortgage payments)

Homeowner’s or renter’s
Life

Health

Motor Vehicle

Other: _N/ A

You

Your spouse

Taxes (not deducted from wages or included in mortgage payments)

(specify): AYJA

Installment payments
Motor Vehicle
Credit card(s)

Department store(s)

Other: AI y/ A

Alimony, maintenance, and support paid to others

Regular expenses for operation of business, profession,
or farm (attach detailed statement)

Other (specify): M/ ‘A:

Total monthly expenses:

3G SMA
3p $_M/A
sg s_AVA
sg $_A/A
sf s_WA
so s_AVA
so s_M/A
$6 ¢ N/A
sf sh /A
so s_W/A
so s_N/A
sp s N/A
sp s_A/A
$6 s_M/A
$4 s_N/A

sg s N/A


WEBB cOUNTY JUDICIAL SYSTEM

: DOCKET
Webb County Courts PAGE
DATE 4/06/10 MCO250
TIME 11:31:16 PDLM
CASE NUMBER... . 2008CRS000589 D4

File Paprs

KET SHEET

- $x (i-*-* CLERK~DELETED—CASE-BY~MISTAKE*+9--(ERG)

9/30/2009 File Paprs
COPY OF ORDER; (INMATE) MAILED TO LYNN CLARK, GENERAL COUNCIL AND
DEFT. R

10/06/2009 File Paprs
AFFIDAVIT FILED.CSV

11/30/2009 File Paprs
RK RECORD MAILED TO CRIMINAL COURT OF APPEALS-AUSTIN (ERG)

ile Paprs__.
DER FROM COURT _OF APPEALS FILED.cSv |

File Paprs

(SIGNED: 1/26/10) CSV
Case Assgn
Court date/time: 4/06/2010 8:30 Hearing Type: 48 Status
Assignment of court date/time.
Status entered as Open
NotofHear
Notice setting case for April 06, 2010 sent to DA's and to Atty
Arturo Gallegos via fax.rmm
File Paprs
NOTICE OF SETTING FILED. JJI


REAGONS FOR GRANTING THE WRIT
REASON# 1.An Order F:

On Senay 28,200%,]i.a plea ot hot gutlty;acavongtul conictigft Bursvaut toa
poijored-testiwnany cas entered against me on (hearsay) False charge of Tndecencacatt
ox child by contact uate it eres wot proven Lith time place curd dake, Full and Ga
Artal was send by: aninelfectve conse” knowing mee joaally nviolationoftlre US-
Constitutions. On August 18,2014. LAU, Sidistvict Corts Hemorandom and Order,
Ne FE Crwit Coot intespreted an ain opportunity Gor Cull aud fais Litigat ioutto
mean ax opportunity to contest Hae Dal Search and Seizore, Unlacatol

Acrest and the begality oF mg Detention claim Vtaking Hat Couits Failove to revve,

will result ina Fundamental Miscarriage of Justice, 2G, ARPA, By tas oppot tonty,

On September 16,2014. 1Ciled atid Application Habeas Corpus 1L0Y pro seasa remedy

Yo covrect cand defen) my Stake cand Federal sights supporting facts Ina Memoradom .

Ex parte Auindo No.WR-73,138-03, On October 6 20t4.The State Filed a Response totine

Application denying everything stated inthe App lication | ignoring an ORDER Gor Cull litiqa-

Hou botaccepting He's corongtul convictian in Hreiv ovwn words Heded not raise’ Lien

an nat chown canse ada \ne shodld ye allocaed tovaise it woud? Stahes Res powse F.C. And
; “Kou Huestxleen moulls in custody and no iwdiement presented dal mata Linfor-

med bo apposed course | awd he choses notte File adotiouto quash tue tndichneigt

heforethe prosecotion stedte aigud), Appellant has notalleged Swale ever requested

speech Tvial before he wastried, cond suck nas coaived Haciso eandcamotobtain -

re liek Stales Respase HY. T cans vstallourHosped L speci ccallyivngormed counse |

Haak t Loa ovtested in tekallahien citodt West wav raitt, Ye choses nat to disclose

the Facts oF vislatten ofthe FOURTH Amevrdinent cu) violation oFasticle $8,061

and 32.01. Stale augue) in Response, Stmaply put ueres town avtaority For appellants

proposition Husk Acticle 3201 csoold entitle him to telease atte elas vote

\3


TABLE OF AUTHORITIES CATED

Gases PAGE NO.
Stone vs Powwell, 426 -Ui5<465/44 bs E,2d 1027/46 5 Ct. 3037 32
Teton v. State,505 Sa 546 as
Tone! State, SS 50) 25207 Ctey. App-tooton|itthOst] 14%). Bt.
UnS. Vo Reyes~ Maya, 305, F3d 362 14
Willams vs Taght, G29 WS. %62(e00) 36
Willis U State, B67 SO Id 852 (App. [aiidist | 185). %
STATUTES AND RULES PAGE NO,
AX USCA, § 1983. Due Process Clavseviolating A 5.6
Vernons Aww, Texas § (0,002: Malicious Tirteutionl ly A]
Veinon's Ann, teres ® Cart A664) weeslY
TFervas Criminal Rule 4Co(3) aN
CONSTITUTIONAL AMENDMENTS PAGE NO»
U.S. CONST. AMEND. FOURTA 94 AG 18 33.34, 2B-2C
US, CONST AMEN D. FUETH Ha
US CONST AMEND. SIMTH 44
ULS. CONST AMEND, FOURTEENTH 10.34
Texos Coustitubany atts | 810 BB
CODES AND ARTICLES PAGE NO-
Texas Penal CODE § 15.024) 4
Texas Penal COvE § 15.02 Nobe 5— 20
Texas tenal Cope § 26:03 @) 14
Texas Penal cove § 3-01 Note 4 i6
Texas Penal core § 34.02) a 20
Texas Pewal cope § $4.02 ic
Heally and Safety Cove. 614,02! 88
Gov. cone. Comp. Bblic act 403. 014. 36
Texas Goss Cone, Cosy (03 § (03,061, 03,054 38
11B.16G*wronglul Conviction: 8



REAGOAS FORGRANTING THe WRIT
Wiis cose shonld be Sigmnissed, Tis 5 tuetutlras Investigator isastare wat hedied
in covst commiting perjury, ahece no jory acting reasonably, wooldnave food me,
quilty For oftictals niscondact and perjored testimony hich is ¢ personal pioblen
Me veason For alitt Lam convicted fora critne {at T a9 not commit, Aud (€ Tsaid
Yuck Lam not guilty, under penally of pexjory,is because,oul Ya one opportunity, L
Can pove it in New, and jot trial becasse L told rem that he Wied incoort.
The defendartis enthelton revessal IE Mie prosecdtat knowingly uses Fals Ctesti—
inony to cbtiin a conviction 0° Cea \s toconrect perjury IF discovered aC tev th etectiomeny
ic given, La Mooney v:blaloban 244 U,5. 103.55, Ct. 340,74 L &d. 741(1435 ); knowingly
vse 0 False extdence by the prasecstor, or allowing Calse evidence 4o go uncorrected after
Yue prosecutor leans iti fale, violategdve grocess of laus- Tn tls casy ny case trial
counsel, prosecotors and judy & Knew and were curare, 1 did let teem know hat the
investigatoy W\larteal gave aGake testimony, and it was ignored by all o€Haewm Artiche
BAZ (Tees Crt Prac.stetes’ Defendant must be grated anew tral @) when evidence
tending fo egtablich Yue defendants inuocence hasbeen inten towaly destroyedor coltheld
Thue preventing bts productionat tial Ls concutrent widlation of Article 3.040) oF tex-
Cri. Proc! OF ficial Misconduct? The. twweshigatst did gave me bak wy Lp .cosd, bot he kept
my SSU cord (dently Hct), Ab Ler Ine lied, requested my counsel Lo obtain evidence
Lo proveltis perjury. Trial counse| rebused toobtain such evidence TBC Bank.,when
lc noteven qno hetold me Laat I eras guilty of the false offense supported bya lie.
For Huds reason, Hais petition Gor Wit oF Certtorarg claod\d be Gente, 41 tal coors
oder cevessed and dismnised,, Or as-this lonorable Supreme Court velieve uliak right.
REASONS. Conviction Obtained By Use OF Conspivacy Ad Conspiracy lo Steal.
A police detective, Wy.Cautos Villatvead 43 HW scheme in ming, he informed peisonally
Ahed he intentionally seut people iv nts canspiracury bo folloa me harass mne,( fox This
- 18


that his appellate counsel was ineffective must fail. See Hernandez v. State, 988 S.W.2d
770, 770 n. 3 (citing Strickland, 466 U.S. 668, 694 (1984).
XI.
CONCLUSION me

This Court has denied the relief requested by Applicant in previous applications,
and this application is nothing more than a repackaging of his prior grounds. As
demonstrated above, none of the grounds alleged by Applicant has merit and each should
be summarily denied.

WHEREFORE, PREMISES, ARGUMENT AND AUTHORITIES
CONSIDERED, the State prays that the Application be refused and that the State have
such other and further relief to which it may be justly entitled.

Respectfully submitted,
ISIDRO R. ALANIZ

DISTRICT ATTORNEY
FOR WEBB AND ZAPATA COUNTIES

MICHAEL aaa
ASSISTANT DISTRICT ATTOR
State Bar No. 03319900

1110 Victoria Street, Suite 401
Laredo, Texas 78040
956-523-4900

FAX: 956-523-5918
mbukiewicz@webbcountytx.gov

State’s Response to Application for Writ of Habeas Corpus Page 6 of 7


Finally, Ground Nine contains an assertion that Applicant’s appellate

attorney was allegedly ineffective because he should have raised an additional

—-—-—_---—-ground- that—there-was_“no-complaints,-no_arrest_warrant,_and_no_indictment_in__ _.

sixteen months of Petitioner’s custody’—the same speedy-trial claim as in
Grounds Two and Three. In his memorandum, Appellant points only to Federal
Rule of Criminal Procedure 34(a) and a series of off-topic cases as justifying his
alleged entitlement to reversal. (Memorandum at pp. 19-20). Essentially,
Applicant’s core argument is based. on Article 32.01 of the Code of Criminal
Procedure’s 180-day limit on pre-indictment custody. If, however, a grand jury has
returned an indictment by the time the Article 32.01 claim is made, the court is no
longer required to release the defendant from custody. Griffis v. State, --- S.W.3d --
-, No. 04—12-00237-CR, 2014 WL 1688099 (Tex. App.—San Antonio Apr. 30,
2014) (citing Ex parte Countryman, 226 $.W.3d 435, 436-39 (Tex. Crim. App.
2007)); see Tatum v. State, 505 S.W.2d 548, 550 (Tex. Crim. App. 1974) (cited by
Applicant and yet holding that “Art. 32.01 has no application once an indictment is
returned even though it is returned by a grand jury at a subsequent term of court.”).
Simply put, there is no authority for Appellant’s proposition that Article 32.01
would entitle him to release after he has not only been indicted, but also convicted.

As such, the Applicant would not be able to demonstrate that, had his appellate

STATE’S RESPONSE TO THE APPLICATION FOR A WRIT OF HABEAS CORPUS PAGE 9 OF 11


CODES AND ARTICLE PAGE NO»

Texas Criminal Procedure Article 2.03 YA
fexas Criminal Procedure Article 3,04 6 18

TexasCrrmivil Proadare Kebicle 14.3, 4
Texas Criminal Plocedive Aificle 14.06 2h
Texas Cinta) Procedore bryele 11.3 14
Teras Carnival Procedore rtcle 15,13 Seatiow (4 2
Toyas Clytinal Procedure Article 15.07 id
Texas Crimmina) Procedure Article 18.06 | 213.693.9431

Texas Crimina | tocedote Article 32.01 13,34 23.24 26

Texas Criminad Rocdote Article 42.038 34



attorney prejudiced him or his case. On appeal, Applicant did not make the requisite
showings required by Strickland v. Washington, 466 U.S. 668 (1984): “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686. Additionally, because this ground
is simply repetitive of an issue raised on appeal, it should be summarily denied. Ex parte
Schuessler, 846 S.W.2d 850 (Tex. Crim. App. 1993).
X.

Applicant’s fifth and final ground is that he received ineffective assistance of
counsel on appeal. In essence, Applicant complains that appellate counsel employed his
own appellate strategy and urged the issues he thought appropriate, rather than appealing
the {issues Applicant desired. ; It is noteworthy that those issues are the same ones he
continues to put forth in his applications for habeas relief. Applicant’s primary complaint
is that appellate counsel failed to advance a speedy-trial claim. Applicant’s argument is
premised upon the 180-day limit on pre-indictment custody as set forth in Article 32.01
of the Code of Criminal Procedure. However, if an indictment has been returned before
an Article 32.01 claim is made, the court is no longer required to release an accused from
custody. Ex parte Countryman, 226 S.W.3d 435, 436-39 (Tex. Crim. App. 2007). There
is no support for the argument advanced by Applicant that he should be released from
custody at this point in time when he has not only been indicted, but has been convicted.
Even if his appellate attorney raised this issue; it would not have resulted in his release.

The result of the proceeding would have been the same. Accordingly, Applicant’s claim

State’s Response to Application for Writ of Habeas Corpus Page 5 of 7


WEBB cOUNTY JUDICIAL SYSTEM

DOCKET
Webb County Courts PAGE
DATE 4/0€/10 MC0250
TIME

CASE NUMBER... . : 2008CRS000589 D4
PLAINTIFF ... . . : STATE OF TEXAS,,
ADDRESS.

PROSECUTING 2.TTORNEY: THOMSON, PAUL, E, PHONE NUMBER: 956-726-40:
ADDRESS . . .. . . : 7128 ROSSON LANE SUITE 5
LAREDO TX 78041
vs.
DEFENDANT NAME . . : ZAMARRIPA-ALVARADO, JOSE, ,
S.S.4...... . : 524-65-1824 D.O.B. . . . . . 12/12/1970
ADDRESS . . ... . : 502 GONZALEZ CT
LAREDO TX 78040
DRIVERS LICENSE # . : 10290520 TX
CASE STATUS . . . . : Disposed STATUS DATE . . : 9/10/2008
CASE DISPOSITION . : Convicted DISPOSITION DATE : 1/28/2009
ALIAS... . . «+ + ALVARADO,JOSE,,
ALIAS... . . . . :  ALVARADO-ZAMARRIPA,JOSE,,
ALIAS... . . . : . :  ZAMARRIPA,JOSE,,
DEFENDANT ATTORNEY : GALLEGOS,ARTURO,, PHONE NUMBER: 956-727-28
ADDRESS . . + 1814 VICTORIA STREET
LAREDO TX 78040
COURT APPOINTED . . : NO ATTORNEY PRESENT
OFFENSE . . .. . . : INDECENCY WITH A CHILD SEXUAL CONTACT 0011D COUNT:
OFFENSE DATE . . . : (5/15/2007 OFFENSE # . : 36010001 impusibledate
JUDGE. ..... . : O.d.Hale COURT ROOM. . . : 406TH
NEXT COURT DATE. . : 4/06/2010 COURT TIME... : 8:30
HEARING TYPE .. .|: Status
XY PLEA. . 2... Nofi Guilty ATTEMPT OR COMMIT:
DISPOSITION. . . . : Convicted § DISPOSITION DATE : 1/28/2009

Jed ,
ENTRY/FILING DATE . : ©6/%6/200B aaabndtchwedeeptewdger 10- 2008

y Hsin need OHHH aye oh

ARRAIGNMENT JUDGE . : O.J.Hale ASSIGNMENT DATE

COMPLAINANT . . . . : LAREDO POLICE

FILING AGENCY . . . : LAREDO POLICE DEPARTMENT

ADMIN. TERM. CODE . : IND. TERM. CODE

COURT DATE TIME HEARING TYPE STATUS STATUS DATE
4/06/2010 8:30 48 Status © Open 3/09/2010

ACTIVITY DATE ACTIVITY TYPE DESCRIPTION

9/10/2008 File Paprs ‘ )
*IMG* INDICTMENT FILED. ARTICLE 3ROF é
DEFT IS IN CUSTODY.



oN

106
VOLUME 7

anyone.
THE COURT: Is that all?

THE DEFENDANT: (Via Interpreter) Iw have

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

25

wanted for my lady, the only witness that I had, for her to

el (Te court misvadeestunk) npreker did not conected (F.
THE COURT: Is that the one you say that was

going to exonerate you, or that, rather, the one that you said
was going to pay you back? Let me ask you, just to follow
your thinking there or -- at what point did your wife say that
to you? Before or after you spanked or touched or grabbed the
victim in this case?

THE DEFENDANT: (Via Interpreter) When she
came to visit me, she said that she knew how the girl. was;
that she was in problems. And, well, I told her, Well, I
don't feel guilty. Just simply bring the girl to come and
tell the truth. Because if they say one thing, both of them,

but it's not true, I do not feel guilty. I would have run,

but I surrendered myself. Ido not feel guilty for a spanking

that I gave her only. alee tibet dam hec stephalhe/,couec Ho,

THE COURT: Well --

THE DEFENDANT: (Via Interpreter) That's your
decision. I accept whatever you give me. But be considerate,

also.
THE COURT: Just for the record, again,

obviously, you_had all of your rights afforded to you. You

DEBRA ALVARADO CAMERON, CSR, RPR


STATEMENT OF THE CASE

Tam legally cestrained oF ony liberty in TCS Covcechionet| Instity tons Division
purstonttoan investigatars pequred testimony, violation of Ave process of Lacy, misa-
plication ofstaled cules of Las, violationo€ the U.S. Constitution, unFatt ave carol
judgment of the 46th District Court Webb County. Laredo Texas.

Ta Hee Cityof- Laredo Tere, clare Wonappings Wappen. often, my wife ound child
ven were Taken any by Force byaqoman who never identi Fre nerselé. Latex, my
oie informed merch public cewauts coerced and actortioned hex to File a cestrain-
ing order against me “Aodelic cecwouits paid our lnouse vent i exchange) 1¢ she did nat
File the vestrairirg odes, out children willbe Taken aviay,, ACer pubblic servaurts
paid ont Vrowse ew, may Ceamnily caeve dropped OFF, Ov April 14,2807, Apolice detective,
Hi. Coilos Villar ofPhauk my effective consentand walrout aseavela wosvarrt ula
twbally seized ray persona documants Frov may caite (drivers tease ard Social Secnrity
covd), Loi malicious iutertion to destroy my imvocarce The iwvestigatot told my wit e
fotellme TEL cat ory TD back, Lewould have togoto bats office, Lwentte his
oFFice, ard he wont meto confess toacrive Haak t did nat comimt (heossaystatemedt)
and 1 said) No” The heassay never really happened, T never accepted bt T never vol-
uirtesily conbessed, Me evidence pteserted at ti was Falsecord involoeta ily pad e in
adea\-tade (evidence-in exchange deal For wy Drivers license), «sifainy pourpase ta
beableto cash wy LRS chearte support myFamily, Te statement T invented,
twos different of Hne supposed victons tes timony, che iwvesrted Hat Wbealsleep
inone-same bed, which 's lie, she hod her oun voomand her onbed. She visit=
ed me at jail and informed me that che explained Hast; Heasnotteue,but public
seavamnts Forced her to sostatn alieastwe , The False hearsas, 4s madeas she

5


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was forwarded to

the Applicant, Jose Alvarado Zamarripa,, #1565198, at TDCJ Ramsey One Unit, 1100 FM 655,
Rosharon, Texas 77583, on this + hes day of March, 2015, by certified mail, return receipt

requested.

Mthad Lulewaxez

MICHAEL BUKIEWICZ

/

State’s Response to Application for Writ of Habeas Corpus Page 7 of 7



STRVEMENT OF HE CAGE
aGFirmed te conviction Reltel ces denied on Tunyary 18, 20142«Appeal NO.08- L0-2U!
CR Charles D. Wise SBOT NO. 24044294 unFaidily represented me. onappeal 1 da}
not Crleda Relobton Fos Dscretiouayy Revitu) (2.02) becavse of my lack onders tan-
ding ot tne tuglist leaquage ond trelaw. On Soned 2012 Iled a. second applica-
tion Forawritot habeas corpus under al ticle (0 pro seas aremedy:T dow Kno
houd,1.d19 not Culed a Memorardum oF Lax, Hre State Ciled o Respruse denying thei
evars (procedoral deFault) cequesting to damisstvreapplication. The Coort of Criminal
Appeals vebued to review my claims, ayid Be Application cas dismissed artthout a
written ordets Rolie was denied ov Septe mbey 6, 2012.Expaste Aluarado No.WR=7 3,
133-02. On September 14,2012. Filed a. petition For a Writ of Habeas Covpys by
a pexson in State custody § 2.54 prose(by lack understuding of the law,and ofthe
English languags,and c miadvice) 1 placed new grounds and did nok Filed a, Memo
randum oF lass staking hatin, avd requeshing veliel For that ceason,the U.S. District
Court recomended to demiss thecgplication, shaking Haat Tus exkwust available
state procedites."T n bbs. District Coutks Memorandom ay) ORDER the Fil bk Circvik
Court interpreted an opportunity for Full and Fair litigation; opportunity to coutest
Hoe vitlacatel search aud seizure, unilausbul ayrestand tie legality of toy detention
claim. Reiel cas denied with prejudice on August 18, 2014, cage W0.6z12-CV 95.
Ou Septeimber \6,2014. 1 Ciled « Kvuid Application For Wert oF Habeas Corps under
Ackitle (LOY peo se, as axemedy, struggling TEiled a Memorandonol Lass stating
Hae ORDER Gor Gull ad Fast (tigation ithe Memacandon,, The Sake Fiked a Respowse
to fre Applicrtion accep ting +hely torgdoing (procedbral delaut) ints ewoeds. He
dd not caize Ut Hon, cihy he shoud beallowed to causett nocd” Whenever tequeskd
aspeedy Lita) before weomstited, has warree feissveand cannoobtain celfe (
T revere waived any issues, teyal couwse\ cloges-to waive them aller T inform him.
10


REASONS FOR GRANTING THE WRIT

inform only to ansuler the States questionsaik tlciy Comvewevice by trans tals.
* Yond 2 Sopeme Coy}, Lam been Tynoree) Please do somathiy toreceive equalprateckanotlaus.
Lcaovld appieciate this lonorbl Soper. Gort if do something aboot ths
matter because Lie héeng ignored by all peace ofhvers ouly because Laue
hispanic, aud becavse I dent haut money to pay a good ail/nty tice fei me,
FoeaPTM i posable Sugreme Courly Thanlt you very much fos yout attewtion ix
this meled="hf Lay information is true...
PRAYER
WHEREFORE PREMISES CONSIDERED, T José Aluasad, PRAY’ For selnel, judging no one ,
pecacke is forthe Honorable Sppreme Coot to dectd e aovetone cotong, T inuatling \a
grove my Tnocence any time. The State contends ina Respongeto application {LOY paseeg,APRE
Prat now igtolake Gor reltol Gl Phat Prey can keep meinecerctel For nothay
for sixteen monde? ehkis yoo! O pinion’ Ts Yai Honorelte Supreme Gout tgoing
fo lek Has lijstice pass imtactand do noPning? Tare illegal deprive of life, sepa
weted Frown my lovely Feumily by Forces uence ow one lacppy Famuly was ong Lactous by
and intevitionlly estioryed, T oii qauen gilt go \back. colPe tny esife
and thie doughters, for all reasons set For Aacrentited mac bor teloedoith the
hy oe BER Fe econ Sap Coal ke giant this Watot Certiorart with
reliek a5 raquested awd autyotaer toiet His outt deoms twat Lin etited to by
lacs, Also pray this Honorable Gort to issue a Fim) judgment “onred inthis cat
housing” precovol defoolt, Loroaghil Gnulction, Dual ective assistance of Coonse {and
“Misa plication oF cated wlesoF lacy oy the State, cond digmniss cr order Fron 406 44
District Gut Leb County Texas, end in case deserved acquittal, an OPDER is vequested
61 «Hotton of Expungemert and appy Article 42,036 of Texas Givninel Peocedir 4
“Reimborseynent For conCinemunt eypenses incoding child ippert, cond oided to Texas
34


1, Unlawful Search and Seizure with Intent to Obtain a False Confession and Use of
Perjury to Obtain a Confession;

2. Conviction Obtained by Use of Unlawful Arrest in Retaliation without Arrest
Warrant and Without Miranda Rights being Read;

3. Defendant in Custody Sixteen Months No Indictment or Information Presented,
and Impossible Offense Date;

4. Effective Assistance of Counsel was Denied at Trial; and

5. Effective Assistant of Counsel was Denied on Appeal.

Each and every one of these claims was or could have been presented in his previous
applications. There is nothing new here. Each of these matters was raised in at trial, in
Applicant’s appeal, and/or one of his previous applications for writ of habeas corpus.

Vv.

Even if one were to charitably assume that Applicant’s repackaging of his claims
presented an argument not made in one of his previous applications, he may not now make that
argument for the first time. It should have been, and under the Code of Criminal Procedure, was
required to have been urged in his first application.

We have previously determined that § 4 was intended “to limit a convicted

person to ‘one. bite at the apple.’ ” Ex parte Torres, 943 §.W.2d 469, 474

(Tex.Crim.App.1997). Interpreting “subsequent applications” under § 4 to include

all applications for writs of habeas corpus regarding the same conviction would
most effectively achieve the Legislature’s objective.

Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000). Applicant has not
demonstrated why the factual or legal basis for his claim was unavailable previously or

that there are “sufficient facts establishing by a preponderance of the evidence that, but

State’s Response to Application for Writ of Habeas Corpus Page 3 of 7


; REASOWS FOR GRANTING THE WRIT

believe Pratl belteve rat Ident heel ty do anathing when I eres axvested Mnretalaton,
Tyust was caning For they to cecogize thert mistaies, but Frey are so stubbem evading
thet thetruth and tie law itsel€ being just would ehtle meGorrelie€ coker,

T was bastally abducted by apolice investigators getabation sixteen months cultheut
ang legal erder or proceeding and he Forget about me that is wotay problem, Artic Le
1406 0 ( Texas Caitnivel Procedire Stakes, The pesson having custody oF-Hre person asrested
shall taye io caitout vimnecessary delay, No lates Ha 48 hav after the personis————-
asrested: The Magistiate shall Immediately perforin thedo ties described ii article 5 (7
ofthis Coda Als, ina concorrent violation oFarhicle [513 6 AleasCrivina! Procedl ce
section WA states, Complaint mustbe made against hitn vides oat seting Forth Hee
gfourd For the asres tos inn the proceed ing section The State nrtevon had any tung aga-

inst mo,tibich rhvtolattes dve process OF (ad THE RAL COURT ABUSED ITS DISCRETION

innotd ismtissing tre cose porsoattt ty viblation of the FOURTH AND FOURTEENTH Amendoitel-
REASON# 7, Defendant in Custody And No Tndictment Deserted

Ge iow TA And Courts Mouse OF Discretion.

Cixteen tows i custody, nO Complaints no indictmentortn forma/on presented.

Tuas asrested on Hay 14,2607 antil Septeuber IC 2008, no indectmentor in for
mation presented. This weason cleatly athacs asticle SL0\ its consti tebowality.

Acticle 32.01 of Texas Codminal Procedure stakes No peison sralllbe bakd to ansore For
accrimtunless ov an dwdictwneurts (BO dogs, vio (dict wet, velease Wedetendant
“the State dtdnot howe enough evidence Fora twe bill on time nol evey. On SeptembertI,

9008. treState Illegally made an indictment catthoule Heective victims conseur fe oo amt
Visited mmeatjail ane) informed ime thks told Haein hort he False hearsay eas

not Nue, but she said cas being Forced to sustain alieas tw U She never trade aya or
signed coy af Cidauit; simply becouse it never \reppened.Ow September 11/2008.

iL



STATEMENT OF THE CASE
infotimed me, Heat while my skepdoughte’ twas playing ak school with her Friends to see
ho daxesto kiss a.boy, hug im 6% do caosse wings colth boys; To beat her schol
Friends, my stepdoagitter invented lawghing Hua Ttouched her private. pattgOne of her
Eiends tell laev move, hex enor believed stetast tryo,sheuentto tec schol end
eS d 4 .
ae teat aed Hae pce the Gist and Belg cites de not tech ochy
assaye that TMG betrwe,0 1 \ieg Huey cetused to testily. The twe and only
cuibies Ones case IS my wife, she coos willing to testify been inte listobathneses
my caike wes excladed trial counsel reFused to call het to Ye stand, Trves gato Cotlas
\ntloxreal, being aosoye of tetra th albout Wi hea state mdi Seclase) ‘owtwe' “as
maliciaus goal ons to dbkain Fromme afalse stelematt alle Twas druny in exchenge
Fox my pessanal documents Taal hevalacaba lly cblained, Twas notunderedtl and be
caose T.need my Ubo cechrachut-to support my Gaumily I iwiented a False staterant-
T recovered my TD, cathy investigators promise of stop bothering m cond ny clients for
mete be able ogo leach to ciotk and 1€ Tdi) nat, Toul) coutinue-tolavetvable,
tedid que me bck. may TD.Jout ne bert may SSN case (entity Yael). The'Cout tasked
him iFWegaeme back ny TD and 16-4 deal trade caste Me denied to ve tw,
AtkerT recov TD, Leashed rny LS check, reivvestigutorS people tnlais couspicacy
continyed havassing me fe lted iw bis promise tostop bothering me because he’ no +
a.mnay of ais wot) I complained +o itn cand Hee inweshigabr blinded Evorn cage, gave
a, order Fothe people \wuhis couspiracy:T personally reas rat he gaid inthis words,
“Fotloed hitm anyuther hegoes and taxke ausoy lis money Rou Ht go ing to be done.
my way LU These nex broke ito img hotel oom duo and stole my TRS money 441, 500dls.,
thc only enone aahT \dto support my family, becanse investigator avd his people
bothered my cliente, Hey were scased asd celuged to gheme work T confronted
~ tnuestigata Villarreal becouse (neieves stopped Hre hasassiwetts as he promise dforme.
6


Alvarado does not present any evidence to demonstrate that counsel’s representation was

deficient or that the state court’s applicatio rickland was unreasonable. See Day v. __

Quarterman, 566 F.3d 527, 540-41 (Sth Cir, 2009) (“The federal habeas court must defer to the

state court’s factual findings unless the petitioner rebuts those findings with clear and convincing
a ana

/ evidence.”). Furthermore, Alvarado’s claim that his counsel was ineffective becaitefe failed i) No ost

————

; file aff appeaPis moot given that the Texas Court of Criminal Appeals granted his application to

file an out-of-time appeal and he subsequently filed one (Dkt. 34 at 15-17). See Roe v. Flores-

Ortega, 528 U.S. 470, 483-86 (2000). Also, Alvarado did not raise the claim that his counsel

failed to call his wife_as a witness on direct appeal or in his state habeas application, which bars
ouse to a

federal review. (Dkt. 34 at 17.) And, Alvarado has failed to present evidence to overcome this
procedural default. (See Dkt. 36 at 3, 6, 11-14.) Accordingly, Respondent’s request for
summary judgment on this claim will be granted.
IV. Actual innocence

Also meritless is Alvarado’s objection to the Magistrate Judge’s conclusion that habeas
relief is warranted for his claim of actual innocence. (Dkt. 34 at 17-18; Dkt. 36 at 10, 14-15.)
The Supreme Court has held that a claim of actual_ innocence, on its own, is not a basis for
federal habeas relief because it is not a constitutional claim. Herrera v. Collins, 506 US. 390,
400 (1993); see also Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003). Instead, as noted
above, a claim of actual innocence is a means or a “gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera,

506 U.S. at 404. The standard for showing actual innocence is demanding and seldom-met. See

McQuiggin y. Perkins, 133 S. Ct. 1924, 1928 (2013). In order to establish actual innocence, a

petitioner must demonstrate that it was more likely than not that in light of new_and reliable~

6/8


9. Do you expect any major changes to your monthly income or expenses or in your assets or
liabilities during the next 12 months?

0 Yes } No If yes, describe on an attached sheet. N/A

10. Have you paid - or will you be paying — an attorney any money for services in connection
with this case, including the completion of this form? © Yes MENo

If yes, how much? 1)

If yes, state the attorney’s name, address, and telephone number: M/k

. 11. Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or
a typist) any money for services in connection with this case, including the completion of this
form?

Yes ya No Lob tained the copies inthaUnit Las Mlrasy.

If yes, how much? v4)

If yes, state the person’s name, address, and telephone number: MW A

12. Provide any other information that will help explain why you cannot pay the costs of this case.

Twork hard For may monty THT does nat pay monclory eanges foc my work; Te lost
everything sinct Teves unlauifully asvested, and covonghully convicted, foracime that
did nok commits, Tie been* Indigent Fur eight years.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: Joly Qik LOIs , 2015

gop)

4
(Signature)



NO.

TRIAL COURT NO. 2008-CRS-000589-D4 (D)

EX PARTE

§ IN THE DISTRICT COURT _
§

JOSE ALVARADO ZAMARRIPA § 406TM JUDICIAL DISTRICT
§ :

APPLICANT § WEBB COUNTY, TEXAS

m

District Attorney, and files this response to the application for a writ of mabe —e
3.

Jose Alvarado Zamarripa (hereinafter “Applicant”), and would respectfully show Gnto the: Cour
2O

=

3

>

an

as follows:

I

FACTS
On January 28, 2009, a judgment of conviction was entered against Applicant on a charge
; : (Levey admitted) ; :
of indecency with a child by contact. He admitted to penetrating an 11-year old girl but claimed
he thought the girl was his wife. Alvarado v. State, 2012 Tex. App. LEXIS 381, *3, *5 (Tex.
App. — Waco 2012). He was sentenced to eleven years’ incarceration. He appealed, and the
appeal was assigned to the Eighth Court of Appeals, which affirmed the conviction. Id. at *16.

He has yet another habeas petition before this Honorable Court. This petition, like those before

it, largely raises the issues he urged on appeal. His arguments have been rejected previously .and

this application should likewise be refused.

State’s Response to Application for Writ of Habeas Corpus Page | of 7


REASONS FOR GRANTING THE WIT ;
prosecution upon an informacion a complain rsuppotted byan affidau't rs
esceubial: The trial court(as tg case) esred in Fasliity bo sas tiie Lye-gp pell-
ants motion to quash Haecomlaint because such complagjit-enas nohstgned
by Ve all raw coritiing his nameor afbtrwaing hisnarre. Zn Holly v.State 460
sis 1d Bb CaCl s, (410); The weord Fails to ce Heck (as tin Blvetadaccase)
asignabue on Hue complaint” Therefore, it appors Comte weaotd thatthe
cowviction is votd and chould be veversed and prasecdtiondtewitsed, Ay iv Aart
case. Sy Gouitilla v State 962 Sc) 0d 119CIex Appe Hoos torr [tba Dist] a4) «The
Frda\ cout exred tir pro ceodiny to titel oahu Yreimdichment eos lostand the
grosed*a (did not follocd the peopel piocedures Far suk vty e Copy vat | re
‘easing ont ede Ronduute wratioc. for mend ty lal (asin bis case) -

REASON HG. Lmpossible date OF The Commission o€ The false O¢Ceunse»
“Fundamental Deloct The Stake made an tndictmentoaitost-wetimn’ consent
or ak Cidayih, Ba Pie teeotd, Stake cased Hwee offense dates none untrue hear —
sayy Eense, Stake eas cou fused because itis tm possible $6 inventon exact date,
Hime and place to prove wheved was at Hiatt Lime inanolense Hah itnever
ever hed happened. Tu Laevecord Hrcre are Hwiee different olfee dates, Te-Lhe
state gve van exact date,timeas place T can provewnere wast intheone
ttre indictment HE teas covrectand tape oll tre past aboout!'Tcaxe prove
Hot iM Apiil | 2007.1 cons csoticing outside the Cily as a mechawic For
one month, From Mascla (0, KOO. te April 4;2007. But, Jhich of bre Hee
dates ase tive! Ausyes’ Noone, Fivst falbe0GCouse date ig on Sheri ts Degeu tweet
00rd any is Api 19, 100%, Second Ty Court recoW), and is May \S, L00%. ahicl,
ibys iwmpossible \vecouse T esas uwlaotulle axvested onthe \Athof Mag 2007.
thtdS Tuthe sixteen mouths late Tudichnentand t 6 Onocahout kprd\ \,2o07,

v1



‘.

REASONS FOR GRANTING THE WEXT
Second, Hac debendant mustghou! Haat Predebbcdent performance perjudtced
Le defense Prat counsels errors were s0 sevjous as to depridethedefendaut
ot-akay 4ia\ with reliable result The de fender oust identity specitic acts
oromistons oF-courcel Hatarealleged otto have veer Hnevesolt ob
reasonable prokesstoual jpogment Tere tebewiny cout must Hew determine
whetvc, dwligict ob all ae cireunstarces, Hc dentified acts ov omissions wee
outside Pre tnige ot profeslonally competenTassigtance ; UMimately the
detondawt must show areasouabte grobabitity That, art For coowselé Unpio Fe
ssinva\ enors, Hne result ob He proceeding covid have ven Different, Breasonebte

pobsbility is apiobabilily sobticentto mde Confience Inthe outcone.
Strickland, 466 Us. at 644. CM Prmadmoart nonns Hust Puere mosthe ekfective cssictance.

\. .
of oy trial counsel velosed to legally cepreseutt md and presented meas gor ley
pecarse T tell bien the boll He ars wovtaess and inet ectives
MRGALLEGOS | We (lhe understands hak acco ing folniint, nes IMnocenct, Aw) Huals oncotdne,
problenis. bes ean very JiICLE Lo dt le aait Goat Hone! (08545) 14) Basitally
Lo peotect tnygell Yous Wonor-CWGi7, 23-25}, Well becaute TL knwod whiedd goivg
Yo happen, (0 to 15 awd Men hell gay Leas Lwelleckive Yor thonwt hed goin,
te appeal (CRS%4 (0-12). _
T begged tre Counsel 40 workon my word tare to exile and Wive.a good layer.
MR GALLECISS Your Hanoi, Tue waxrackually sorted onthe bond (CRBEMMWT We).
The coune) came vp calf anotter of-twe yeas talve Free butas quitty.
PULCALLEGGE Ysot Hones [Liroqict op Khe fact Sat dhe offer unas foo years boserues
Hehad ike 92 months oredit(CRTE NS, 14-2). .
T explained Haat £ cadres stag in jail not guilty” Haak be Free as guilty:
MAR.CALLECOS', Maglee T can Noving Phecop right wed ~L mean, edi soy Ud weatbeet ve ih jail (0585,2°3),
Lintormed counsel aloout mg ouly culheess willing to testify oumy bebalf, Ve ceFused
to disclose tn arck ond cefused to call oy wines to dhe stud to teh
DEPENDANT: Eevould hove wonte) Cormy tady Me omly cuitinss watt \ads for hor te -
deFend me CCR; 106 2-4).
30