_q§,aOLJ/(Bw

CAUSE NO; 007-0405-09-D

Ex PARTE § IN THE TEXAS coURT oF
§ cRIMINAL APPEALS §§ECEWED m
DONALD MARGRAVES § AUSTIN» TEXA‘?:GURT oFchmN/\LAPPEALS
_BRIEF 0PP0$1NG RECOWE§DATION oF sMITH coUNTY - ` MAY 26 2015

DISTRICT ATTORNEY TO "§UCCESSIVE APPLICATION"
FOR WRIT OF HABEAS CORPUS '

AboBAsosia,CEezk
TO THEJHONORABLE COURT OF.€RIMINAL APPEALS:

COMES`NOW, Donald Margraves, TDCJ #1585203, Applicant pro se, and submits
this Brief Opposing Recommendation by Smith County District Attorney to what
he says is a "Successive Application" for Writ of Habeas Corpus. Applicant
will show this Honorable Court that, in accordance with pm£eizt case law, this
application is NOT successive and that Applicant has met his burden under app-
licable law to the Subsequent writ bar'found in Texas Code of Criminal Proc-
edure, Article 11.07, section 4, the very statute used to bar this application.
Applicant submitted a Memorandum in Support along with his writ application,
which memorandum quotes precedent case law.that Supports his contention of
facts found herein. Applicant will point out Specific case law in this brief t
that will help this Court to determine an appropriate decision in this matter.
Applicant also raised a claim of "Actual Innocence" of the status of Habitual
Offender, which can be raised at any time.

(1) APPLICANT HAS NEVER CHALLENGED HlS CONVICTION.

ln Applicant's first application for relief, filed under Article 11.07,
Applicant questioned only the affirmative finding of deadly weapon. Not a leg-
ally sufficient "challenge toithe conviction". See Ex Parte Rawlinson, 958 SW
2d 198 (Iex.Crim.App. 1997), where the applicant sought to have the deadly wea-
pon removed. At first this was ruled as a challenge to his conviction. Four
months later, Ex Parte Evans, 964 SWZd 643 (Tex.Crim.App. 1998), en banc, was
decided in which this Court stated, "We now disavow that language". "lt seems
clear that, regardless of whether the prior claims were addressed on their mer-
its, the issue is whether the prior claims constituted an attack on the conv-
iction". §y§n§, @ 646, footnote 4, specifically addressing Rawlinson. This Court
Said that their previous decision in Rawlinson was erroneous. The challenge to

deadly weapon allegation did not "present a claim regarding the validity of the

prosecution or the finding of guilt", and therefore, was not`a "challenge to
the conviction". Article 11.07 § 4 should exclude matters such as affirmative
findings from the ambit of'the section because an affirmative finding issue
does not call into question the validity of the prosecution or the finding of
guilt; rather it questions issues arising after the completion of the actual
prosecution itself. lt does not alter the verdict or the actual punishment
assessed; it only affects the defendant's eligibility for parole. Furthermore,
in Ex Parte Kerr, 64 Sw3d 414 (Tex.Crim.App. 2002), this Court stated, "lf a
writ of habeas corpus does not challenge the validity of the underlying judge-
ment and would not result in immediate relief..., even if meritorious, it is
not an initial application for purposes of statute which generally bars consid-
eration of a subsequent writ after filing the initial application". Although
§g££_was a death penalty case, and filed under Article 11,071, there is a similar
Situation present. Again, this Court stated, "To constitute a document worthy l
of the title §writ application§ filed pursuant to Article 11.0]1, the writ must
seek irelief from a judgement imposing the death penalty'. A death penalty writ
that does not challenge the validity of the underlying judgement and which, even
if meritorious, would not result in immediate relief from his capital murder»
Canviction or death sentence, is not an 'initial application' for purposes of
Article 11.071 § 5 which generally bars consideration of the subsequent writ
after the initial application. This same rule applies to non-capital writs
b filed under Article 11.07. See Ex Parte Evans, 964 SWQd 643, 646-47 (Tex.Crim.
App. 1998)." tx Parte Kerr, 64 Sw3d 414 (Tex.cr'im.App. 2002).'

Applicant has cited.many other cases in his memorandum that support this
contention of what this Court calls "initial'application"; See Ex Parte Santana,
227 SW3d 700, 703 (Tex.Crim.App. 2007); Ex Parte Whiteside, 12 SW3d 819, 823
(Tex,Crim.App. 2000)3 Ex Parte McPherson, 32 SW3d 869 (Tex.Crim.App 2000); and
Crone v. Cockrell, 324 F.3d 833 (5th Circuit 2003)§ §§9§§ states, "A prisoner's
habeas corpus application is not 'second or successivei simply because it follows
an earlier petition".

lhe Court of Criminal Appeals stated, "Both the definition of conviction and
this Court's case law regarding writ applications lead us to the conclusion that
the precedural bar of § 4 is limited to instances in which the initial applic-
ation raises claims regarding the validity of the prosecution or the judgement
of guilt. lt does not apply to claims regarding other matters, such as parole `

revocations or affirmative findings of deadly weapon. We conclude that the plain

language of § 4 unambiguous and does not lead to absurd results." _

Finally, while it is true that claims regarding the affirmative finding of
deadly weapon, as well as parole revocation hearings are cognizable under Art-
icle 11407, this is the proper avenue to challenge such decisions. See Board of
Pardons and Paroles ex rel Keene v. Court of Appeals for the 8th District, 910
Sw2d 481, 488 (Tex.Crim.App. 1995). ln order to raise these claims pertaining
to trial matters, an applicant must file his application in the court and county
in which he is convicted. Ex Parte Woodward, 619 SWZd 179 (Tex.Crim.App. 1981);
Ex Parte Alexander, 861 SWZd 921, 922 (Tex.Crim.App. 1993). Thus,'inaa general
Sense, an applicant files a writ application attacking the judgement of conv-
iction which has resulted in his confinement, regardless of the context of his
actual claims. Woodward, 619 SWZd @ 179. Thus; although Applicantis claim of
improper deadly weapon finding is cognizable under Article 11.07 § 1, it is not
a challenge to the conviction under Article 11.07 § 4, because it does not call
into question the validity of the prosecution or the judgement of guilt. Thus,
Applicant is completely excepted from the ambit of Article 11.07 § 4 since this
is NOT a successive application for habeas relief. The above-cited case law is
found in Applicantis memorandum in support, pages 33-40.

Article 11.07 § 4(a) specifically states:'lf a subsequent application for~
writ of habeas corpus is filed after the final disposition of an initial appli-
cation challenging the`same conviction, a court may not consider the merits of
or grant relief based on the subsequent application unless the application con-
tains sufficient specific facts establishing that: (1) the current claims and
issues have not and could not have been presented previously in an original app-
lication or inza previously considered application filed under this article be-
cause the factual or legal basis for the claim was unavailable on the date the
applicantnfiled the application;_g£ (2) by a preponderance_of the evidence, but
for a violation of the U.S. Constitution no rational juror could;have found the
applicant guilty beyond a reasonable-doubt. (emphasis added). Section 5 adds:
The Court of Criminal Appeals mgy_direct that the cause be docketed and heard
as originally presented to said court or as an appeal. (emphasis added). By this
clear meaning of § 4, Applicant's current writ application is NOT "successive"
and should be decided on its merits. If Applicant somehow is held to the dic-
tates of section 4, he complies by satisfying the above-emphasised portion,
preponderance of the evidence. Applicant has provided the record as Exhibit A,

which was called State's #1 used against Applicant in court on June 29, 2009.

lt is clear that Applicant was not proven to be an habitual offender. His priors
were not proven to be "final" convictions to allow their use as enhancements in
the sentencing phase of the instant charge of DWl. See memorandum in.support, .
pages 20-29, Thus, applicant has filed this innocence claim, claiming he is
innocent of habitual offender status.

According to Article 11.07 § 5, this Honorable Court may_direct that the cause
be docketed and heard. Applicant respectfully requests the Court to consider his
current 11.07 application, docket the cause and hear the matter on its merits.
instead of following the recommendation of the trial judge, who was lead astray
by the Smith County Assistant District Attorney's erroneous recommendation and
incorrect quotes of the 11. 07 statute, specifically section 4.

Further, Applicant respectfully directs the Honorable Court to the State' s
Answer To Successive Application For Writ Of Habeas Corpus, pages 84-88 of writ
package submitted by the 7th District Court of Smith County, Texas; specifically
page 86 (top) where the Smith County D. A. erroneously quotes 11. 07§ 4, in which
the D.A. leaves out important statute wording (i.e,,' 'challenging the conviction' ').
lhe D.A. further goes on to misquote section 4 by inserting words of his own
choosing (i.e., "regarding the same convictionT). lhe statute is clear, "chall-
enging the same conviction". The Smith County D.A; has essentially changed the
entire emaning of the statute (section 4) to disallow ALL second or successive
applications. lhat was not the intention of the legislators\when they enacted
the section. The D.A. goes on to misquote Ex Parte Whiteside, 12 SW3d 819, 820
(Tex.Crim.App. ZOOO) by saying, on page 86, "subsequent applications include all
applications for writs of habeas corpus regarding the same convictionv, when
Whiteside actually says, "Under the plain language of the statute, once an app-
licant files an application challenging the conviction;`all subsequent applica-

 

tions regarding the same conviction must meet one of the conditions set forth

n § 4(a)(1) or (2). lhese misquotes are deliberate and may be confusing to the
judge if taken at their meaning by the D.A. lt is for this reason, Applicant
respectfully requests.the Honorable Court to hold a hearing on this cause and¢
determine the appropriate action on the merits contained therein. Applicant avers
that he does not intend this request to harass, vex or delay the Court. He

only wants justice served in this instant cause@

PRAYER
WHEREFORE, PREMlSES CONSlDERED, Applicant Donald Margraves prays that the

Honorable Court of Criminal Appeals in Austin, lexas will docket the above

cause and hear the cause on its merits and make appropriate determination that
Applicant has never challenged his conviction and,¥therefore, accept this 11.07
application as non-successive. Applicant prays for relief as requested in the -

application and all other general relief as the Court sees appropriate and just.

'Respectfully,

 
   

Donald Margrave #1585203
Dalhart Unit '
‘11950 FM 998

Dalhart, Texas 79022

CERTlFlCATE OF SERVICE

l, Donald_Margraves, Applicant pro se, hereby certify that a copy of my
Brief Opposing Recommendation of Smith County District Attorney to "Successive`
Application"for Writ of Habeas Corpus was served by U.S. Mail, on May 20, 2015
by placing same in the care of Dalhart Unit mail-room personnel, postage pre-3

paid, first class, and properly addressed as follows.

Court of Criminal Appeals
P.O. Box 12308

Capitol Station

Austin, Texas 78711

Donald Margraves H5585203

