Conclusion Of Law
The trial court thereafter concluded that:

(1) Applicant waived his. right to appeal this case as part of his plea bargain

agreement after being admonished by the court;

(2) Applicant has failed to prove that he received ineffective assistance of
counsel. applicant did not prove that counsel's representation fell below an
objective standard of reasmableness. Nor did he prove that there is a reasonable
probability that, but for’counsel's unprofessional errors, the result of the

proceeding would have been differént. (Conclusion Of Law On Remand ,pp .2-3)

Applicant's dbjection To The Findings Of Fact And Concluksiion Of Law On Remand

Applicant now files his objections to the trial court's findings of fact and
conclusions of law on remand contending that the trial court's conclusion recom-
mending that his habeas corpus petition be denied, must be overruled for three
reasons. first, the trial court's findings and conclusions of law stating that-
—"Applicant waived his right to appeal this case as part of his plea bargain
agreement after being admonished by the Court is contradicted by this Cairt's
holding in Ex Parte Delaney, 207 S.W.3d 794(Tex .Crim.App . 2006); Ex Parte Axel,

_ 757 S.W.2d 369(Tex Crim. App .1988); Strickland V. Washington, 466 U.S. 668, 104

S.CT. 2052(1984); Evitts.v. Lucey, 469 U.S. 387, 105 S.cT. 830(1985).

In Ex Parte Delaney, the Court of Criminal Appeals held that when the record
reflects that there is no waiver in the record certifying that an appellant
expressly waived his right to appeal, that waiver is ineffective. See Ex: Parte
Delaney, 207 S.W.3d 794,76(Tex. Crim.App. 2006); Ex Parte Thomas, 545 S.W.2a 469

(Tex Crim.App. 1977); Ex Parte ‘Townsend, 538 S.W.2d 419(Tex. Crim.App. 1976).



Applicant specifically argued that trial counsel misinformed him that he
could not appeal the guilt~and innocence phase of his trial inwhich he plead
not guilty and was tried by jury, and misrepresented to him that he would be
eligible for parole within two years if he took the 25 year sentence when infact
he would have to serve his 25 year sentence day for day without any possibility
of parole, as ordered by the trial court. (R-R. Voll,pp.6) This satisfies part
one of Strickland's two part test, because it shows that trial counsel failed to
protect applicant's constitutional right to appeal. Ex Parte Axel, 757 S.W.2d at

374; Evitts, 469 U.S. at 389; Strickland, 466 U.S. at 688.
Harm Analysis

Applicant further contends that he was prejudiced by counsel's unprofessional

error because counsel's error resulted in his direct appeal being dismissed in

violation of his First. Amendment Right to a‘first appeal as a matter of right.
Evitts, 469 U.S. at 389. Applicant further aggues that he was also harmed by
the fact that he is now serving a 25 year sentence without the possibility of
parole when infact, this sentence is illegal accacding to Texas Penal Ode §
21.02(h). This satisfies part two of Strickland's test, because applicant has
shown that but for trial counsel's unprofessional error there. is a reasmable
probability that the result of the proceeding would have been different. Strick-

land, 466 U.S. at 695; Evitts, 469 U.S. at 389; Ex Parte Axel, 757 S.W.2d at 374.

Prayer
Applicant respectfully prays that the Court of Criminal Appeals conduct a
hearing de novo review, and thereafter grant applicant an out of time appeal in

the interest of justice, so that he may properly assert his constitutional right

to a first appeal as a matter of right.

REspect fully Submitted:

7



(1) "The trial court shall make findings of fact and conclusions of law as to
whether Applicant was convicted and sentenced on a plea of "not guilty" or whether
Applicant entered into a plea at the punishment stage after having been found

guilty by a jury;

(2) If Applicant did waive expressly waive his right to appeal, the trial court

shall supplement the habeas record with evidence of such a waiver; and

(3) The trial court shall make findings of fact and conclusions of law as to
whether the performance of “Applicant's trial counsel was deficient and, if so,
whether counsel's deficient performance prejudiced applicant.” (Order of the

Court of Criminal Appeals. on Remand, WR-82,696-01 ,pp.2)

Findings Of Fact And Conslusions Of Law On Remand

On July 7, 2015, the trial court filed it's "Findings Of Fact and Conclu-
sion Of Law On Remand" finding that:
(1) Applicant pleaded not guilty and was found guilty by a jury in this case. (RR.

Vol#1,pp -3);

(2) After the jury found Applicant guilty, he entered into a plea bargain agree-

ment. (R-R. Vol#l,pp.4-5);

(3) The trial court admonished Applicant that his appellate rights would be

waived and applicant consented thereto on the record. (R.R- Vol#1.pp 4-5);

(4) Trial counsel refutes all of Applicant's allegations in his affidavits

(original and supplemental)!

(5) The Court finds Vasilas affidavits are sufficient to respond to the allega-

tion. (Findings of fact,pp.2).



Here in Applicant's case now before the Court of Criminal Appeals, the
record reflectw that appellant plead not guilty and was tried by jury. (R-R.Vol#l,
pp. 3). After the jury found Applicant guilty, he entered into a plea bargain agreement
for a 25 year sentence. (R-R. Vol#l,pp.4-5). However, there is no document in
the record before the Court reflecting that applicant expressly waived ‘his con-
stitutional right: to appeal. (R-R.Vol#1, pp. 36). Furthermore, the record also
shows that the trial judge abused his discretion when he ordered that Applicant

to serve 25 years without the possibility of parole. (R-R. Voli#lipo.6, line 2-5)

According to Texas Penal Code § 21.02(h)—Continuous Sexual Abuse of Young
Child or Childern— "An offense under this section is a felony of the first
degree, punishable by imprisonment in the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years‘or less than 25 years..Se:
Texas Penal Code § 21.02(h). This further supports Applicant's claim that his
trial counsel's performance was deficient, because he allowed and incouraged
the trial court to impose an illegal sentence. Consequently, Applicant's sentence
of 25 years without the possibility of parole mst be reversed and remanded for

anew punishment hearing, in the interest of justice.

Second, the record shows that this Court (Court of Criminal Appeals) Ordered
the trial court to supplement the record to show —"I£ Applicant did expressly
waive his right to appeal, the trial court shall supplement the habeas record
with evidence of such a waiver. (Order , No .WR-82,696-0l,pp.2). However, the
record still reflects that there is no document in the record before the Court
showing that applicant expressly waived his right to appeal. ‘the record before
the: Court shows that the trial court totally disregarded this Court's Order to
“supplement the habeas record with evidence of such a waiver. Consquently, the

trial court's finding that Applicant waived his right to appeal is ineffective.

Ex Parte Delaney, 207 S.W.3d 794, 796(Tex. Crim-App. 2006).

5



oilige-_ynedyone

Arturo Medrano No. 1894196
Coffield Unit
2661 F.M. 2054

Tennessee Colony, Texas 75884

Applicant, Pro se

Certificate Of Service

I, Arturo Medrano, Applicant, Pro se, do hereby certify that a true and
correct copy of this foregoing instrummt has been served upon Shara D. Saget,
Assistant District Attomey, Frank Crowley Courts Bldg., 133 N. Riverfront Blvd.,

LB-19; Dallas, Texas 75207-4399. Executed on this 19th day ofJuly, 2015.

ad

sign: gphtse— ne Spon

Arturo Medrano No. 1894196

Applicant, Pro se
Woe



$2, -O!

July 19, 2015

Court Of Criminal Appeals

Abel Acosta, Clerk RECEIVED iN

P.O. Box 12308, Capital Station GOURT OF CAINAL APPEALS

Austin, Texas 78711 JUL 24 AS

RE: Ex Parte Arturo Solorzano Medrano, Applicant Avel Acosta, Clerk
WR-82 ,696-01

Dear Clerk,

Enclosed you will find "Applicant's Traverse To The State's Findings Of |
Fact And Conclusions Of Law On Remand". Please file-stamp said instrument and
bring it to the attention of the Court in your usual fashion. Thank you for

your time and cooperation.

Respectfully Submitted:

Arturo Medrano No. 1894196

Coffield Unit
2661 FM. 2054

Tennessee Colony, Texas 75884



Third, the trial court's findings and conclusions that. -- "Applicant has
failed to prove that he received ineffective assistance of counsel because he
failed to prove that counsel's representation fell below an objective standard
of reasonableness, nor did he prove that there is a reasonable probability that
but for counsel's unprofessional error, the result of the proceeding would
have been different" —. is also contradicted by the record of evidence. ( on-

clusion of Law,pp. 2-3).

Standard Of Review

The standard of review to show that counsel provided ineffective assistance
of counsel is set out in Strickland V. Washington, 466 U.S. 668, 104 S.CT. 2052.
(1984)'! Evitts v. Lucey, 469 U.S. 387(1985); Ex Parte Axel, 757 S.W.2d 369(Tex.
Crim-App. 1988). In Evitts v. Lucey, the Supreme Court held that the Sixth
Amendment right to effective assistance of counsel: extends to a first appeal las
of right. Likewise, in Ex Parte Axel, 757 S.W.2d 369 at 374, this Court held
that applicant was denied effective assistance of counsel when counsel failed to
give applicant any practical assistance in protecting and preserving appellate
rights, thus entitling applicant to an out of time appeal. This Court further
held that counsel has a burden to ensure that appellate rights are protected and
to present a sufficient record to resolve the issue he or she presmts on appeal.
ix Parte Axel, 757 S.W.2d at 374; Amador V. State, 221 S.W.3d 6, 675(Tex. Crim

App- 2007); Guajardo V. State, 109 S.W.3d. 456, 462(Tex. Crim.App . 2003).

Deficiency

Here, in Applicant's case now before the Court, the record shows that appli-
cant alleged that his trial counsel failed to adéquately communicate his options
on appeal which resulted in his direct appeal being dismissed. (Appeal No.05-14—

00129-cR)



Writ No. W10-34786-S(A)

CCA No. WR-82,696-01

Ex Parte In The 282nd Judicial

Distteict Courtt Of

AA Oo Hw

Arturo Medramo Dallas Comty, Texas

Applicant's Traverse To State's Findings Of Fact And Conclusion Of Law

To The Honorable Court Of Criminal Appeals:

Now Comes, Arturo Medrano, Applicant, Pro se, amd files this "Applicant 's
Traverse Ib State's Findings Of Fact And Conclusion Of Law” requesting this
Court to grant this foregoing State post conviction writ of habeas corpus. And,

in support thereof will show this Court the fol lowing:

Statement Of The Case

On June 3, 2014, Applicant filed this foregoing writ of habeas corpus alleging
three constitutional issues for review by the Court of Giminal Appeals. In ground
number one, Applicant contends that trial counsel provided ineffective assistance
when he failed to investigate and prepare a defense in his behalf. In ground two,
Applicant contends that trial counsel provided ineffective assistance of counsel
when he failed to explain the nature of the charges to applicant. In ground three,
Applicant contends that trial counsel provided ineffective assistance when he failed

to adequately communicate applicant's options on appeal.



State's Respomse

On daly, 15, 2014, the State filed a response recommending that relief be

denied, alleging that the claims are without merit. (State's Respmse,pp.5).

Trial Court's Fimdings Of Fact And Comclusioms Of Law

On August 25, 2014, the trial court filed it's findings of fact and conclu-
sions of law recommendeing that the wit be denied. In making it's. findings the
trial court found that: (1) the statements made by trial counsel was true,
correct, and dispositive of the allegations made by applicant; (2) Applicant was
not coerced to go to trial, because he insisted on his innnocence; (3) Applicant
wanted a trial and rejected the State's plea bargain offer, and (4) counsel is
fluent in spanish and was able to communicate with Applicant throughait the pro-

ceedings. (Findings of fact,pp.2).

Conclmsiion Of Law

The trial court thereafter concluded that: (1) Applicant has failed to
prove that he received ineffective assistance of counsel; (2) Applicant has not
been denied any of the rights guaranteed to him by the-United States Constitution

or-theTMexas Constitution. the trial court then recommended that Adgplicant's writ

aE.

of habeas corpus be Denied. (Conclusion Of Law,pp.3).

Order. Of The Court Of Criiminal Appeals REmanding For Additiomal Facts

On February 4, 2015, this Court (Court of Criminal Appeals) found that:
(1) "Applicant hasralleged facts that, if true, might entitle-jhim to relief", and
thereafter remanded Applicant's weit of habeas corpus back to the trial.court with

instructions that: