§§w` ,U”-}D 114

Sept. 10, 2015

ABEL ACUSTA, ELERK

TEXAB CUURT UF CRIMINAL APPEALS
P.0. Box 12308, Capitol Station
Austin, Texas 78711

In re: Art. 11.07 writ/Ex parte Lonnie E. Harris
washington Eounty, Texas Cause No. 16,925-B

T0 THE HUN. ABEL ACDSTA, CLERK:

At the end of Augsut l received the State's reply to my Peti-
tion for writ of Habeas Eorpus. I thought by now l would have
received a Notice by white Eard from your office that the writ
had been received and filed so that I may file my Rebuttal. As
this is not the case, enclosed for filing and challenge to the
State's Reply please find an original draft of my "Applicant's
Rebuttal to State's Reply to Petition for writ of Habeas Corpus"
to be filed in the above referenced action.

I would request that l be notified of receipt of this legal
filing and be informed of what my writ number mill be please.

I thank you in advance for your time in this most important

matter.
Respectfuly submitted,
/S/ <D\emm> €i%W\l/\ l@\¢’)€)S'SS

Lonnie E. Harris 1970355
C.T. Terrell Unit

1300 FM 655

Rosharon, Texas 77503

§@EWED ;QN
@OMT @F CHHWNAL APPEAL§
SEP § 53 ?\i§

Ab@m@@§ia,©@@\rk

 

Dated & documented

IN THE 00URT 0F ERIMINAL APPEALS
FDR THE STATE 0F TEXAS

EX PARTE
LUNNIE E. HARRIS, . § EAUSE N0. 16,925-5
Applicant.

APPLICANT'S REBUTTAL T0 STATE'S REPLY T0 PETITIUN FDR
wRIT 0F HABEAS EDRPUS AND REQUEST FOR DISMISSAL

 

EUMES N0w LONNIE E. HARRIS, Applicant pro se, and files this
his "Applicant's Rebuttal to State's Reply to Petition for writ
of Habeas Eorpus" and the request to Dismiss the writ. Applicant
holds that he is "actually innocent" of the charge alleged and
files for writ relief pursuant to the Texas Constitution, Art. 1
§12 which holds the "writ is to be speedy and effective". To so
DENY and dismiss it outright would constitute a Eonstitutional
violation of Due Process of Law.

The State relies on the decision of the Eourt of Appeals having
wrongfully Dismissed Applicant's direct appeal holding Applicant
waived his Rights to appeal by pleading guilty fall due to the
ineffective assistance of counsel] now before the Court on writ
of Habeas-Eorpus "AL£UwED" by the Texas Constitutiion in asking
the Eourt to dismiss his writ. As such, Applicant holds to the
Doctrine of Stare Decisis in matter of rebuttal.

The Doctrine of Stare Decisis [requires] lower courts of appeals
to follow precedent of superior court`(ln re Smith Barney, lnc.,
'975 5.w.2d 593, 597 (Tex. 1990)) and a pro se complaint.... Can

only be dismissed for failure to state a claim if it appears be-

yond a doubt prisoner can prove no set of facts that would entitle

him td relief. Haines v. Kerner, LUA U.S. 519, 92 S.Et. 59& (1972)
(quoting Eonley v. Gibson, 355 U.S. 41, h5-h6, 78 S.Et. 99 (1957)).
As Applicant has clearly stated a Eonstitutional claim of ineffec-
tive assistance of counsel that he can readily show facts of such
action that prejudiced Applicant‘s defense to the state that he

was illegally imprisoned, Applicant's writ of habeas corpus

should not be Dismissed, but a published opinion entered.

As Applicant has already showed that his attorney was ignorant
of relevant Law in the matter of the video taping of the chemical
test that [did NUT indicate] the presence of coaine, then that
ignorance constitues as "identafiable lapse" in constitutional
adequate representation. Eounsel who is not familiar with facts
and law relevant to his client's case cannot meet the required
minimum level for effective assistance of counsel (Trass v. Maggio,
731 F.2d 200, 293 (5th Cir. 199&) intended by the 6th Amendment.

The failure of the test to reveal "cocaine", as chargedih the
Indictment, made for a fundametnally defective Indictment¢ Counsel
did not provide objectively reasonable assistance for failure to
research and investigate the Rules of Evidence to the point of
counsel not functioning as counsel required by the 6th Amendment.

Rompilla V. Beard, 5M5 U.S. 374, 125 S.Ct. 2&56_(2005). An objec-

 

tively reasonable attorney, keeping abreast of legal developments
related to his case, would have been aware of cases involving the
same presedent set by prior courts to the point that failure to

cite such precedent rendered deficient counsel. U.S; v. william-

 

Sun, 185 F.3d ass, uez (sth cir. 1999).
with the "failure" of the test to reveal cocaine, then in

essence, Applicant [is] actually innocent of the charge as set in

.. l _
<~--¢-'-....__-- .-_-
‘1...\..., -. _. .»

the Indictment and his attorney "should" have been aware of this
fact of Law. The Sixth Amendment guarantees criminal defendnats
the effective assistance of counsel, and that Right is denied when
a defense counsel's performance falls below an objective standard
of reasonableness and thereby prejudices the defense. Yarborough
vs. Gentry, 5A0 U.B. 1, 12h S.Ct. 1 (20030; wiggins v. Smith, 539
U.S. 510, 521, 123 S.Et. 2527 (2003). lf N0 actual assistance for
the accused‘s defense is provided, the Eonstitutional guarantee
has been violated. U.S. v. Cronic, h66 U.S. 648, 104 S.Et. 2039
(198#).

Even the Texas appellate courts have found that "Eonstitutional
error" means an error that directly offends the federal and state
constitutions without regard to any statute or rule that might also
apply as that term is sued in rule providing that appellate court
[must] reverse a judgment of conviction if trhe appellate record
in a criminal case reveals "constitutional error" that is subject
to Harmless Error review; Flores v. State, 19& S.w.3d 3A (Tex.App.

Texarkana 2006); Thompson v. State, 95 S.w.3d 537 (Tex.App. -

 

Hous. [1hth Dist.] 2002).

wHEREFDRE, Applicant would so pray after review of his rebuttal
to the State's request, to so GRANT him relief and DENY the State
their request to Dismiss Applicnat's Art. 11.07 writ of Habeas
Eorpus and enter decision to acquit on all grounds.

Respectfully submitted,

/S/ 3@,,_;2§§2 Q[¢M 1900 355
Lonnie E. Harris 1970355
C.T. Terrell Unit

1300 FM 655
Rosharon, Texas

 

UNSwDRN DECLARATIDN

I, Lonnie E. Harris, TDEJ No. 1970355, being presently illegally
restrained of my liberty at the TDCJ-CID E.T. Terrell Unit located
at 1300 FM 655, Rosharon, Texas 77503 in Brazoria County, declares
under penaltyof perjury that the foregoing document is true and

correct to the best of my knowledge.

5igned this the IZ¥H day of September, 2015.

/S/ zia/mw 619 WW Vq/>O;§'S;§

AFFIANT

