# December24, 2014^^.Q^/^'Ol
TO: Te?cas Court of Criminal Appeals Clerk of the Court P.O. Box 12308 Austin, TX 78711-2308 FROM: Frankie Nealy # 1714921 Ellis Unit 1697 FM 980 Huntsville, TX 77343 RE: Writ No. WR-82,248-01 ExParte Frankie Wayne Nealy Dear Clerk, Please find enclosed a motion for rehearing andreconsideration on the court's ovtt. motion for the denial of myhabeas corpus application. Please file the motion with the court at your convenience. I thank you foryour time and attention to my request.

enclosure cc:file Nueces DA



## RECEIVED! COURTOFCf APPEALS


## AbelAeosta,§Jerk/ Respectfully,



## RECEIVEDIN 

## COURTOFCRIMINALAPPEALS JAM022015 AbelAcosta,Clerk



### GTRONDENIEDWRIT NO. WR-82,248-01

IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
EX PARTE FRANKIE WAYNE NEALY, APPLICANT, PRO SE

MOTION FOR REHEARING AND RECONSIDERATION ON THE COURT'S OWNMOTION

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS: COMES NOW, Frankie Wayne Nealy, Applicant, pro se and files this motion for the 

### Court to reconsider this case on it's own initiative pursuant to Tex. R. App. P. 

### 79.2(d). This Court has the authority to reconsider it's rulings denying relief
sua sponte. Id; see also, A Guide ToArticle 11.07 Writs of Habeas Corpus and Other 1 

### State Writs p.20. In support of this request, Applicant states as follows:
ISSUES PRESENTED: 

### 1. Whether appellate counsel was ineffective during the period for amotion for new trial? and, 

### 2. Whether appellate counsel's admittingdeficient conduct and included in the writ record warrants further review? 

### Applicant contends that appellate counsel was ineffective during the period for amotion for new trial. The issues being presented to this Court have not been au

### thoriativelydecidedbased on the lawand the facts of this case. Applicant pre sented exhibits in support of his contentions and those exhibits exceed the prepond erance of the evidence standard required inhabeas corpus applications. Ex Parte 

### Rains, 555 S.W.2d 478(Tex.Crim.App.1976). Thus, based on these contentions, Appli cant argues that reconsideration is warranted. fnl. AGuide To Article 11.07 Writs of Habeas Corpus and Other State Writs is auth 

### oredby the HonorableMichael F. Stauffacher, SupervisingAttorney of this Court.
1.

### As a thresholdmatter, the trial court failed to rule on Applicant's expansion of the record motion filed August 21, 2014. It was essential that the court ex pand the record to include a copy of the reporter's record from the revocationhear 

### ing that occured onApril 13, 2011. In the absence of aruling granting the expan sion of the record, Applicant cannot ascertain whether ornot this Court.has re 

### viewed all relevant documents. The state argued in it's findings that the record
as established based on the court of appeals opinion was sufficient to refute the allegations. However, not allowing an Applicant to expand the record can be fatal to the writ process. ISSUE ONE: Whether appellate counsel was ineffective during the period for the motion for new trial? 

### Applicant contended that his appellate counsel was ineffective during the period for filing amotion for new trial. Specifically, Applicant alleged that appellate 

### counsel while knowing that Applicant was sentenced and adjudicated guilty in one continuous breath, failed to raise the issue to the trial court in the motion. 

### This court held in Issav. State, 826 S.W. 2d 159(Tex.Crim.App.1992). that if
an objection was not timely lodged during the revocationhearing to preserve an 

### "inone breath" adjudication and sentencing, that Applicant wouldbe required to raise the issue in amotion for new trial in order to present the argument on appeal.

•,i 

### Applicant contends thathewas adjudicatedguilty and sentenced in'onecontinuous proclamation and the record supports this contention.(2RRp.24). Without knowing whether or not this Court had the transcripts to review the contention, Applicant 

### argues that reviewof this issue by rehearing is appropriate. Appellate counsel cane be found ineffective during the period for amotion for new trial, but the issue is subject to deficient conduct and prejudice inquiry. Cooks v. State, 240 

### S.W.3d906,907-08(Tex.Grim.App.2007). There is apresumption that counsel at the motion for new trial is effective. Jackv. State, 64 S.W.3d 694(Tex.App.-Houston [1st. Dist.] 2002). 

### The question remains that if anApplicant is first required to raise the issue

### of inonebreathadjudicationand sentencingbyobjection to the trial court, and does not, is appellate counsel required to raise the issue in the motion for new 

### trial? The answer is yes, otherwise the error is waived for appellate reviewas 

### happended in this case. (AppealOp. at 3-4); App. Ex. B. Basedon.thecourt of ap peals opinionand thewell-settledrule ofpreservation, particulary in this case of inone breathadjudicationand sentencing, Appellate Counsel's inactionwas deficient conduct, and the trial court's finding of fact and conclsuions of law 

### is erroneous. Moreover, the trial court didnot have the objections to the states 

### answerwhen itmade its findings, nordid ithave the luxoaryof ruling onAppli 

### cant's quest toobtainanevidentiaryhearing. Thecourt simplyadopted theper juredand erroneous findings without conducting appropriate post-conviction review. The state would have one believe that no further reviewwould be needed and the 

### issue raised couldbe determined from the appellate record. However, it is inherent ly risky to adopt direct reviewanalysis as the findings for post-conviction review. 

### At aminimum, Applicant shouldhave been affordedan opportunity to rebut the state's assertions before the trial court made its recommendations, and the trial court in 

### reviewing the application and exhibits, shouldhave affordedApplicant the benefit 

### of thedoubt as theassertionswere supportedby letters fromcounsel. SeeApp. Ex. Cand E. Appellate counsel has admitteddeficient conduct in this case and that is 

### enoughfor thecourt tohave orderedadesignation of issues, at aminimumasking appellate counsel respond to the allegationviaanaffidavit as to the strategy in not preserving the error, that was subsequentlywaived for appellate review. Thus, based on the fact that counsel admittedhis conduct was deficient, this 

### defeats thepresumption that counselwas effective, andaprejudice inquirywould reveal the errorwas waived for appellatereview. Applicant is respectfullyrequest 

### ing this court to entertainon ifs own initiative, whetheramotion forrehearing should be granted. Tex. R. App. P. 79.2(d). 

### ISSUETWO: Whether appellate counsel admittingdeficient conduct that is includin the writ recordwarranting further view? 3.

### Applicant in filinghis writ provided several exhibits supportinghis factual assertions. Among themwere Applicant's Exhibits A, C, Dand E. Exhibit Awas a 

### questionairre sent to-appellate counsel, that asked for aresponse, invitedhim to adopt or rebut that was sent certifiedmail. App. Ex. A. Applicant basedhis 

### contentions notwithstanding exhibits Cand E, that counsel made an evidentiary adop tive admission by failing to refutei. Certified mail was the method used to contact counsel in CMRRR # 7012 0470 0001 5246 9914, copy of delivery card and USPS Online 

### print-out attachedwith exhibit A. Moreover, Applicant relied on Gant v. State, 153 

### S.W.3d 294,299(Tex.App.-Beaumont 2004, pet. ref'd)(holding that an adoptive admis sion occurs when a statement is made in aperson's presence, the person understands the statements, the statements call for areply, and the person remains silent or 

### acquiesces to the statement...citing Tex. R. Evid. 801 (e)(2)(B)). Because Appli cant requested and invited aresponse and counsel failed to refute or respond, he 

### adopted the factual allegations as alleged in the application. Thus, Applicant has met the burden of proving counsel was ineffective without having exhibits' Cand E.- 

### For the state and the trial court to ignore this issue, it is overruling and ig noring superior court authority. It is likewise, ignoring the rules of evidence of the adoptive admission scenario. 

### Notwithstanding the adoptive admission, Applicant also reliedu|x)nhis unsworn

•.r 

### declaration in support of his writ. App. Ex. D. The factual allegations were taken under penalty of perjury as true and correct. This precluded the trial court from adopting the state's allegations and proposed recommendations. Aquick review of the findings of fact and conclusions of lawclearly reveals an inadequate analysis 

### under Stricklandv. Washington, 466 U.S. 668(1984). The trial court simply adopted the perjured and erroenous proposed recommendation. Just as with the adoptive admis sion scenario, the trial court ignored an applicant alleging facts as required. Ex 

### ParteMcPherson, 32 S.W.3d 860(Tex.Grim.App.2000). When there is contraryproof of
4,

### anApplicant's claim, the applicant's sworn allegations are not sufficient proof of his claims. ExParte Empey, 757 S.W.2d 771(Tex.Grim.App.1988). Because Applicant did not rely solely uponhis sworn allegations, the other evidentiary support included with the writ supported applicant's claims. i And finally, notwithstaning the exhibits' Aand D, exhibits Cand E raise some equally important concern. Because appellate counsel is to raise non-frivolous is
sues onappeal, the question remains, why would counsel raise the issue of in one 

### breath adjudication and sentencing if it was a frivolous andmeritless argument as the state argues and the trial court adopts? Tha natural response from the state in any writ is to generally deny all allegations that essentially becomes the facts by statutory default. However, when Applicant presentedhis writ, heprovided ex hibits Cand E, that were two(2) letters from counsel, one to the state bar, and the other to the Applicant, where headmitted deficient conduct. In fact, Applicant noted that counsel even advised him to file an Art. 11.07 habeas corpus application against among other persons, appellate counsel himself. If the state and the trial 

### court's findings of fact are conclusive to argue the claimwas meritless, then it raises question as to the mental and professional competency of counsel. Because the trial court did not rule on the expandsion of the recordmotion filed with the writ, Applicant cannot ascertain whether or not the exhibits were presented to this court. But to ensure that this Court has abetter understanding as to the statements of counsel in these letters, Exhibit Creads inpertinent part: 

### "That Applicant should include acomplaint against him(Edwards) for 'failing to preserve the issue concerning whether the trial court erred by proceeding to sentencing without notifying the parties it was doing so and giving them at least achance to argue for lesser punishment." Id at p.2. Exhibit E reads inpertinent part: 

### "Laybalme at me(Edwards) fornotmaking that argument in themotion for new trial and preserving error the court of appeals claims is waived." Id at p.2. 

### Appellate counsel Edwards has been in practice for over 15 years. By his own ad5.mission in letters to the bar andApplicant, those statements were made free of co ercion, duress or threat. Counsel made those statements based on his experience in the course ofhis duties, and unlike almost any case filed in this court, coun sel implicated himself as having rendered ineffective assistance of counsel. Coun sel didnot raise the issues just to satisfy his client. Rather, based on the record before him, in his professional capacity, determined that this issue was not friv olous and the record supported the claims. The central issue here is whether or not counsel's statements to his client and the bar carry the weight as when counsel would respond to a court's order in the habeas process.- Applicant answers to the affirmative. Applicant has researched the issue and has found no cases upon which anApplicant raised inpost-conviction, that appellate counsel was ineffective during the period for amotion for newtr ial concerning the failure to raise and preserve inone breath adjudication and sentencing. Thus, the issues presented to this Court have not beenauthoratively decided. Applcaint is respectfully requesting this court to entertain on its own initia tive, whether amotion for rehearing should be granted. Tex. R. App. P. 79.2(d). Applicant contends that further facts are necessary for disposition and that this court enter aremand order requiring appellate counsel via an affidavit or an evi dentiary hearing, answer to the allegations as argued in the application. ExParte 

### Smith, 650 S.W.2d 68(Tex.Crim.App.1981); ExParte Gnpos, 613 S.W.2d 745(Tex.Crim. App.1981). At aminimum, based on the evidentiary support provided by the Applicant with his application, that counsel should be required torespond todetermine what, if any, strategy can be imagined for failing to preserve error. The appellate court waived the error, and this court refused a petition for discretionary review inPD742-13.
6.

### Based on the current record sent to the court, withno certain ruling on the ex pansion of the record motion, Applicant contends that review is warranted. 

### This motion is not sought to delay the case, but to see that jsutice is served 

### andApplicant is givenadequate reviewof his factual allegations that were support ed by exhibits.
PRAYER WHEREFORE, PREMISES CONSIDERED, Applicant prays that this court own its own initia 

### tive grant amotion for rehearing on this case. Applicant further prays for any other relief that is just and equitable.

CERTIFICATE OF SERVICE 

### Ihereby certify that acopy of the foregoing motion for rehearing on the court's ownmotionhas been delivered to prison authorities for mailing by U.S. Mail, post age pre-paid, first-class to the Nueces County District Attorney's Office, 901 Leopard Corpus Christi, Texas 78401 on this the 24thdav of December 2014.

UNSWORN DECLARATION 

### I, Frankie Wayne Nealy, TDCJ # 1714921, DOB 10/19/1977, beingpresently incarcerated in the Ellis Unit of the Texas Department of Criminal Justice, city of Huntsville, county of Walker, declare under penalty of perjury that the foregoing statements contained herein are true and correct. Executed on this the 24thday of December 2014.

7. Frank!ire-Jia^neNealy^\ TDCJ # 1714921 Ellis Unit 1697 FM 980 Huntsville, TX 77343