                10. PD'OUh/S                             ^g / »l{£
                                 IN    THE


             COURT    OF     CRIMINAL         APPEALS

                            OF    TEXAS
ORIGINAL
                      DOE    RAY       ALVAREZ


                                  V.


                  THE       STATE       OF    TEXAS
                                                                    COURT OF CR»AL APPALS
                                                                        OCT 05 2015
              FROM' THE      COURT       OF    APPEALS


            FOR THE FIRST DISTRICT OF TEXAS                         Abs! ACQSM, Gfel^
                      AT    HOUSTON          TEXAS

              Cause    No.       01-13-00368-GR




           PETITION    FOR       DISCRETIONARY        REVIEW

                                                                       FILED IN
                                                          COURT OF CRIMINAL APPEALS

               Oral Argument Requested                                OCT 06 22»5

                                                                    Abel Acosta, Clerk




                                                         Joe    Ray     Alvarez,       Pro    se
                                                         TDCU-ID        No.    1853331
                                                         A.D.       Hughes     Unit
                                                         Rt.    2     Box     4400
                                                         Gatesville,           TX     76597
                             IDENTIFICATION           OF    THE   PARTIES




               In   order   that    the   members      of    this   Court   may     determine

disqualification and recusal under the Tex.                          R. App.      Proe.    15 and 15a,

Appellant certifies that the following is a complete list of parties,

attorneys, and other persons with a interest in the outcome of this

lawsuit:



Honorable       Stacey Bond                                   Presiding 3udge In the 17 6TH
                                                              District      Court


Emily    Detoto                                               Defense    Counsel      at   trial

Michael       Driver                                          Defense    Counsel      at   trial

Patti    5edita                                               Defense    Counsel      on   appeal

Nathan       Moss                                             Assistant District           Attorney   at   trial

Paul    Fortenberry                                           Assistant District           Attorney   at trial

Alan    Carry                                                 Assistant District           Attorney   at   trial

Joe    Ray    Alvarez                                         Appellant




                            STATEMENT      REGARDING         ORAL   ARGUMENT

             Pursuant to     Tex.    R . App.    Proe 75,         Appellant did request oral

argument in this case and'ean state [in BRE] before Honorable Judges

;-";:_,_>-v;-?:- record in case cause no. 0706244,, Dec: 5, 1996 plea of guilty was

said to have cleared Appellant's record of anyJ ;further investigations of

any other charges.           Courts construe ambiguity against government as •

drafter of agreement.              Arrest,   charge indictment in case cause'number

600516 is a breach of government agreement according to law of contracts.



                                          Page   ii
                                   TABLE   OF   CONTENTS


                                                                        Page
IDENTIFICATION        OF    PARTIES...                                  ii


STATEMENT     REGARDING       ORAL    ARGUMENT                          ii

TABLE, OF    CONTENTS                                            ... . . .iii

INDEX   OF   AUTHORITIES               -                -. . .          iv

STATEMENT     OF   THE     CASE                                         1

STATEMENT     OF   PROCEDURAL        HISTORY                            2

QUESTION     PRESENTED       FOR    REVIEW.                             3

ARGUMENT AND REASON FOR REVIEW ... .                                    4,5,6(7
CONCLUSION     A'ND   PRAYER. . . .                                         $

CERTIFICATE OF SERVICE...                                                   8

APPEND EC IS .,                                                         5,9




                                           Page   iii
                                INDEX   OF   AUTHORITIES



CASES                                                                                          Page

Arizona v. Fulminate,     111     S. ct. 1246 (1991)            "Quoting"                       6
Barker v. Wingo , 407 U.S.        514 (1972)                                                    6
Bell v. Georgia,    554 F. 2d 1360 (5th Cir. 1977)                                              6
Bledsoe v. State, 178 S.U. 3d 824, 826-27 (Tex. Crim.                            App. 2005). ..2
Brady v. Maryland,      373 U.S;'B3,         87 (1963)                                           3
Brecht v. Abrahamson, 113 J. ct. 1710 (1993)                                                     6
Broun v. Poole, 337 F. 3d 1155, 1159-60 (9th Cir. 2003)                                          3,4
Collins v. Young, 497 U.S. 37 110 S. ct. 2715 111 L. ed 2d 30 (1990).4
Exparte     Duffy, 607 S.W. 2d 507 (Tex, Crim. App. 1980)                                            6
Gochicoa V. Johnson,      53 F. Supp. 2d 94B, 950 (W.D. Tex. 1999)                                   6
Grimes v. State,    807 S.W. 2d 582 (Tex. Crim.                  App 1991)                       4
Johnson v. U.S.    , 520 U.S. 461,           465 (1997)                                          7
Strickland v. Washington         , 466 U.S.         668 (1984)                                   6
U.S. v. Bagley, 473 U.S. 667,           6B2 (1985)                                               3
U.S. v. Cromer,    3B9 F. 3d 662, 672 (6th Cir. 2004)                                            7
U.S. Guzman, 318 F. 3d 1191, 1195 (10th Cir. 2003)                                               3
U.S. v. Marion, 404 U.S. at 313, 320 (1971)                                                      6
U.S. v. Vega Molina, 407 F. 3d 511, 521 (1st Cir. 2005)                                          7
U.S. vl-.Olano, 507 U.S. 733 (1993)                                                              7


STATUTES

Tex.    Code of Crim.   Proe.                       Article 12.01                                4
                                                                12.03                            4
                                                                12.04                            4
                                                                12.05                            4
                                                                12.06                            4
                                                                32.01                            4,5
RULES

Texas Rules of Appellate Proe.                      15 and 15 (a)                                ii
                                                    75                                           ii

Federal Rules of Crim.      Proe.                   11   (e),   (f),    (;~T:)                   3
                                                    4 8 (b )                                      5
                                                    50 (b)                                        5
                                                    5 2 Ob)                                       T
                                                    41 W                                    . .,. 3"'




                                        Page   iv
                                  STATEMENT     OF    THE    CASE




              Appellant       plead   not   guilty    to    charge    indictment in

cause   no.   60D516"to       theoffenseof       Aggravated          Assault,   alleged

to have been committed on             April 26, 1991.         (1)

On April 16,      2013 the; case proceeded to trial by jury. (2)

The jury returned a verdict of guilty (3) and assessed Appellant's

punishment at      confinement for          life in    the    Texas' Department of

Criminal Justice,         Institutional Division. (4)

Judgement and sentence was signed April 18, 2013. (5)




                                            Page 1



C.R.= Clerk's       Record     Vol.   1   of 1 Vol
(1)   (2)   (3)   (4)   (5)   See Appendix A
                     STATEMENT    OF   PROCEDURAL   HISTORY




                 Appellant gave notice of appeal. (1)

Trial court appointed appeal attorney, Patti Sedita (2) whom later

filed an Ander's     Brief concluding her review was limited.

Appellant immediately petitioned Court of Appeals First Supreme

District of Texas to pursue [pro se]. .(-«<)

No   motion for rehearing was ever filed.

Court of Appeals First Supreme Distriet of Texas reviewed Appellant 's

case sua sponte and       // f f/jt/^ t4            the trial courts conviction.
Appellant now timely fiies this petition for Discretionary Review.




                                  Page     2



(1 ) (2)   (5)   See Appendix B
                              QUESTION       PRESENTED     FOR    REVIEW




                  Appellant would not be in              prison today in case cause

no.    0600516 had Government Agreement not been breached according

to    law    of   contracts.


Due    process requires that any               ambiguity,        admissibility or

inadmissibility of plea,               plea discussion,           and related statements

is accordance with Rule 11 (1) are to be construde against the

government         (2).

And    in accordance with Appellant's reasonable understanding of

agreement (3) prosecutors promisses as part of plea bargain.

Appellant had been cleared of all further investigations of                                      all

other charges prompted acceptance of                     agreement.             \     Minutes of

the    court      asses   subsequent attack         on   the     breach    in       case   cause

no.    0706244,       Dec.   5, 1996 appellant would not be                 in prison today

in    case    cause no.      0600516 had government inaction disclosed

pending 1991          indictment of attempted murder.

Courts have         fashioned       rules    providing    for     the   disclosure          of

certain       types    of evidence         when necessary to        safeguard a defendant's

due    process rights         (5)    and    (6).




                                           Page 3



(1)    (2) (3) •?• ;• (5)      (6)
See     Appendix C
                                ARGUMENT       AND    REASON      FOR    REVIEW




                           Appellant    proves       by   a preponderance          of evidence
when he was          arrested Dec.       5, 1996 on primary case no.0706244 (1),
plead guilty and sentenced to                      ten years      TDCJ-ID,       and remained in
custody until 2005 (2),                plea agreement was intended and understood
" to clear his record " up to time (3) by his attorney and
prosecutor of             any and all further investigations of                        further alleg
ations.        However unknown to Appellant one case did exist yet State
decided not to pursue " The Warrant " although it had Appellants
picture       and    a witness.

Government inaction to formally charge and disclose pending 1991
indictment (4) in cause no. 0600516 prejudiced Appellant under
Brady       Rule    and   violated     his    Due    Process      Fourteenth       Constitutional

Amendment          Right.

Prosecution of case cause no.                      0600515 resulted in state failing to
abide        by Texas Code of Criminal Procedure (C.C.P.)                              Article 32.01,
Art.    12.04,       Art.   12.05,     Art.    12.06.

Appellant was incustody and no                      indictment presented in                 seperate
case cause no.            0706244,     from 1996 through yr.               2005 (2).         State's
untimely due diligence to confront Appellant with said indictment
violates       service of a copy of indictment.                     Instead state            chose   to

await until          Appellant was released from TDCJ-ID custody to                             rearrest
inform,       prosecute       Appellant in case cause no.                  0600516 so         prejudice
Appellant to          properly address             accusation's         at the    time      of charges.

Government waiting             20 years       to    arrest   and    present       indictment
violated Appellants Due                Process Right and Equal Protection of the
Law    to    legally      defend     himself.

Ex    Post    Facto, Law      provides       fundamental         principles       of fairness        upon

which       our system of justice is                founded prohibits            the   enachment of
law which is          one   that deprives           a person charged with              an    offense      of
any defense available at the time of commissionf3t*k )•
               Court appointed trial counsel's failure                            to   file motion(s)
to    quash    " Time       Barred    " indictment by            statute of Limitations
according to          C.C.P.    Art.    12.01       and   Art.   12.03,     and litigate violat
ion of Speedy Trial             Act constituted ineffective assistance of counsel




                                               Pg
                           ARGUMENT     AND   REASON     FOR   REVIEW




                   Indictment refiled June         27,    1991    intentionally was

withheld from Appellant until March 15,                   2011.    Government inaction

to give Appellant notice of pending indictment was                           bias and

unnecessary delay in presenting charges to grandjury, filing an in

formation against Appellant,             or bringing the          Appellant to trial

is    a violation     of   Federal   Rule     of Criminal      Proe.    48    (b)   and

50 (b) and         Appellant's 14TH Constitution Amendmend Right.

                   Government Breached plea agreement in case cause no.

0706244 when it refiled information                , arrest,       charged indictment,

then convicted the Appellant in case cause no. 0600516 in violation

of Due Process Clause and Equal protection and Article 32.01 (1)

for a Speedy Trial resolution.

Record clearly established that Appellant made the court, state                            ,

and his      trial    counsel   aware   that he    wanted to       invoke his right       to

a speedy trial in two seperate accusations pro se (2) , on Dec. 20

2012 , and Jan. 10, 2013 (3),                 yet motions were never heard

because he was represented by appointed counsel.




                                     Page 5


(1)    (2)   (3)
See Appendix D
                           ARGUMENT   AND    REASON   FOR   REVIEW


               Delay prejudiced Appellant by depriving him of any defense

at    the time of commission of        alleged charge of offense and opportunity

to question available alibi witnesses (10) now incarcerated. Trial

counsel's forfeiture to subpoena accomplices Mark Bivins and Bruno

Vasquez to better apprise Appellant of evidence against him and

deficiencies in state witnesses also prejudiced Appellant, See (11)

ans    (12).

Delay prejudiced Appellant in preparing his defense with adequate

legal counsel starting at of legal accusation in violation of all

four    [Barker Factors]      Courts consider when defendant has been

deprived of his right to a Speedy Trial, See (13).

The right to a speedy trial attaches at the time of arrest or formal

charge, which ever comes first (14).

assistance of guiding hand of trial counsel.and misapplication of

counsel stradegy standards forfeiture to raise any abjections

arising from indictment "time barred" by statute of limitation,

breach in government agreement in primary case                   cause no. 0706244,

and failure to submit motion (s) for speedy trial before trial proce

edings was not effective assistance of counsel (15) instead was no
trial stradegy but a "structuallError" (16), that infected the entire

trial process.          trial counsel's role failed to subject prosecutions
case to meaningful adversarial testing.



                                      Page   6


(10-16)        See   Appendix D
                                       ARGUMENT          AND    REASON    FOR    REVIEW



Furthermore the right to effective assistance fully encompassess
the    clients       right       to    obtain          from    trial    counsel       the    work    files

generated during             and       pertinent to             client's    defense          forcing       Appellant
to    motion    to    cgmpell          trial          attorney    to    surrender,          now after Direct
Brief,       a completec:copy               of       trial    counsel's    case       file    in    case    cause

no.'(s)        600516 and 596598                      discloses       trial counsel          failed, to      inform
Appellant       prosecution's                plea offer of 15             years       to    20 years       concurrent
during       a time       trial       counsel          was    perturbed    and more          interested       in
resolving her (Itrial counsel)                           own indictment for cocain charges.

[ "the decision to reject a plea bargain                                         is a decision for             '
the    accused       to    make                  a    failure    of    counsel       to    advise    his   client

of a plea bargain                           constitute(s)             a gross deviation from accepted
professional standards."                         ] United States ex.             rel.       Caruso v. Zelinsky,
6B9    F.    2d 435       (3rd Cir.          1982)


Appellant       asserts he             is    innocent of firing             any fire          arm and       pleas

to    this    Honorable          Court       of Criminal          Appeals       to    review allege
irregularity              that is       clear          and obvious,       affecting          Appellant's
substantial rights (17)                      (18)       (19);    Appellant is entitled to an
Evidentuary Hearing to                      resolve the factual dispute.


Likewise       , plain error                doctrine          recoqnizes    that where             defendant's
personal rights             at    stake,             the rule of forfeiture should bend
slightly if necessary to prevent a grave injustice (20)                                              (21).




                                                         Page    7
(17-21)5ee Appendix
                            CONCLUSION      AND   PRAYER



                   Wherefore    premises      considered,    Petitioner,

Joe   Ray   Alvarez,   prays the Court of Criminal Appeals to uphold the

points of errors,       reverse the court of appeals judgement, request

a stay of mandate and remand the case for               a new trial.

Petitioner request for        all other relief to which he may                  be entitle.



                             Respect   fully Submitted,       //fff.
                                                            Joe    Ray Al\idtez , pro se
                                                            TDCJ-ID       No.    1853331
                                                            A.D.       Hughes
                                                            Rt.    2     Box    4400
                                                            Gatesville,          TX    76597




                       CERTIFICATE    OF   SERVICE


  I certify that I delivered a copy of Appellant's pro se motion

  for Writ of Discretionary Review to the Honorable Court of

  Criminal Appeals of Texas Supreme Court Building,                      Abel Acosta,

  Clerk of the Court by U. S. Mail,               postage prepaid, first class,

  at 201 West 14TH Street,           Room 106,     Austin,Texas         7B701.

  On this day of Qcfl f, P^O \°< ®?$ •


                                                     Joe Ray Alvarez,          pro se




                                     Page Q
                                                   APPENDICES




TABLE      OF    CONTENTS

Appendix A, (pg.T)                                              Appendix B,          ( pg .2)

Statement         of    the    case:                            Statement of Procedural History:

Clerk's         Record       Vol.    1    of   1    Vol         Clerk's       Record     Vol.    1    of    1    Vol.

(1 ) clerk's rec.              pg. 145                          (1) clerk's rec.              pg. 181
(2)   clerk's rec.             pg.       152                    (2) clerk's rec.              pg. 184
(3)   clerk's rec.             pg.       167                    (3) Bledsoe v. State, see index
                                                                       of    authorities
(4) clerk's rec.               pg. 177
(5)   clerk's rec.             pg. 178




Appendix C, (pg.3)                                              Appendix D, pg. 4,5,6,7)

Question         Presented          for   Review                Argument       and    Reason     for       Review:

(T)   Rule 11          e.,    f.,    see index                  (1)    clerk's       rec.     Vol.1       of 1    Vol.
      of    authori t i e s                                            pg. 20
(2)   Fed:.      R.    of Evidence 410,                         (2) reporter's rec.              Vol.       9 of 9
      see       index    of    authorities                             Vol.    Exhibit 12,           Pen    Packet

(3)   U.S.       v.    Guzman,       see index                  (3)    Brown v.       Poole,     see index
      of    authorities                                                of    authorities

(4)   Brown v.          Poole,       see index                  (4)    clerk's       rec.     Vol.    1    of 1    Vol
      of    authorities                                                pg. 145

                                                                (5)    clerk's       rec.     Vol.    1    of 1    Vol
                                                                       pg. 87
(6)   Brady v. Maryland,                  see                   (6)    Article 32.01,           see index
      index       of    authorities                                    of    authorities

(7)   U.S.       v.    Bagley,       see index                  (7)  clerk's         rec.     Vol.    1    of 1    Vol
      of    authorities                                              pg. 125
                                                                (S). Same
                                                                (9)    clerk's rec.           Vol.    1    of 1    Vol
                                                                       pg . 1 30

                                                                (10)    reporter's rec.              Vol.       6 of 6
                                                                        Vol.    pg.    8 2-

                                                                (11)    Bell v. Georgia,              see index
                                                                        of    authorities


                                                     Page ty
                                         APPENDICES




TABLE    OF    CONTENTS


Appendix D, (pg.          4,5,6 *:7)

Argument and Reason             for Review:
(12)' Exparte' Duffy,           see index ofauthorities
(13)    Barker v.       Uingo,    see index of authorities
(14)    U.S.    v. Marion,       see index of authorities
(15)    Strickland v. Washington,               see index of authorities
(16)    Gochicoa v. Johnson,             see index of authorities
        Brecht v.       Abrahamson,       see index of authorities
        Arizona    v.    Fulminate,       see   index of    authorities

(17)    U.S.    v. 01 ano,      see index of authorities
('1 B) Federal Rules       of Crim.       Proe.   52 b.,    see index of authorities
(19)    Johnson v. U.S.          , see index of authorities
(20)    U.S.    v. Vega Molina,          see index of      authorities
(2T); U.S.      v. Cromer,       see   index of authorities

(22)    Grimes v.       State    , and
        Collins v.       Youngblood,       see index of      authorities




                                                Page TO
Opinion issued July 7, 2015




                                        In The
                                                       0




                                 Court of gppeate
                                       For The

                            Jftrsft JBtetrtrt of Cexa*

                                NO. 01-13-00368-CR



                          JOE RAY ALVAREZ, Appellant
                                          V.

                         THE STATE OF TEXAS, Appellee




                      On Appeal from the 176th District Court
                              Harris County, Texas
                            Trial Court Cause No. 600516



                            MEMORANDUM OPINION


         A jury found appellant, Joe Ray Alvarez, guilty of the offense of aggravated

assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a) (Vernon

2011).     After finding true the allegations in two enhancement paragraphs that
appellant had been twice previously convicted of felony offenses, it sentenced him

to life in prison. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2014).

      Appellant's appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396(1967).

      Counsel's brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S.,at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978).         Counsel indicates that she has thoroughly

reviewed the record and is unable to advance any ground of error that warrants

reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      Appellant has filed a pro se response, contending that (1) the State did not

timely file an indictment; (2) he was denied his right to a speedy trial; and (3) his

trial counsel rendered ineffective assistance of counsel.


      We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full
                                           2
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826-

27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court

determines whether arguable grounds exist by reviewing entire record). We note

that an appellant may challenge a holding that there are no arguable grounds for

appeal by filing a petition for discretionary review in the Texas Court of Criminal

Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

          We affirm the judgment of the trial court and grant counsel's motion to

withdraw.1 Attorney, Patti Sedita, must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See Tex. R. App. P.

6.5(c).

                                       PER CURIAM


Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).




          Appointed counsel still has a duty to inform appellant of the result of this appeal
          and that he may, on his own, pursue discretionary review in the Texas Court of
          Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
          1997).
