    (
'   ·.                           No. _______________________

                                             IN THE,,

                                 COURT OF CRIMINAL APPEALS

                                   IN RE CANDY HILL HUGHES

         MOTION FOR LEAVE OF COURT TO FILE A WRIT OF MANDAMUS                    (PRO SE)
         TO THE HONORABLE JUDGE OF SAID COURT:
           Comes now Candy Hill Hughes, who files this motion and will
         show the following:
         (1)   That Mr.Hughes request to file a writ of mandamus in this
               court.
         (2)   That this court      ~rant   Mr.Hughes motion for leave in order
               for him to file his      wr~t   of   mandum~s.

         Wherefore Mr.Hughes prays that this Honorable Court Grants his
         motion for     l~ave   of court to file a writ of mandamus.
                                                                Respectfully· submitted:
                                                        Candy Hill Hughes#1596685
                                                        Hughes Unit
                                                        RT.2 Box 4400
                                                        Gatesville,Texas.76597
                                                        U.S.A·

                                                                   c~~Lu~\b
                                                                    DATE: 12-i-2015
                                                                          \L-'15- 2-0\S t .\\.\\




                                                                       RECEIVED IN
                                                                COURT OF CRIMINAL APPEALS


                                                                        DEC 10 2015
                                                                             .   ;



                                                                    Abel Acosta, Clerk
                                      CAUSE NO. 1169973-B

Candy Hill Hughes                                           IN THE 230TH JUDICIAL
TDCJ-ID# 1596685
        RELATOR
  v.                                                        DISTRICT COURT OF
Chris Daniel COUNTY DISTRICT CLERK:
IN HIS OFFICIAL CAPACITY,
        RESPONDENT                                           HARRIS COUNTY ,TEXAS


       A.     PLAINTIFF'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS
       TO THE HONORABLE JUDGE OF SAID COURT:
             Comes now,Candy Hill Hughes ,Relator, pro se in the above-
             styled and numbered cause of action and files this Original
             Application For Writ of Mandamus, pursuant to Article 11.07
             Sec. 3(c) of the Texas Code of Criminal Procedure, and would
             show the Court the following:
                                              1.
       B.   RELATOR
       1.01 Candy Hill Hughes        ,TDCJ# 1596685     is an offender
             incarcerated in the Texas Department of Criminal Justice and
             is appearing pro se, who can be located at Hughes Unit
             Rt.2 Box 4400    Gatesville,Texas.76597.
       1. 02 Relator has exhausted his remedies and has no other :::;: ,:;
              adequate   rem~dy   at law.
       1.03 The act sought to be compelled is ministerial, not
             discretionary in nature. TCCP Art. 11.07 Sec. 3(c) requires
            Respondent to immediately transmit to the Court of Criminal
            Appeals a copy of the application for writ of habeas corpus
            any answers filed, and a certificate reciting the date upon
            which that finding was made, if the convicting court decides
            that there are no issues to be resolved. No copy of the

            application for writ of habeas corpus, any answers filed, and




                                             1
        a certificate reciting the date upon which that finding was made
        have been transmitted to the Court of Criminal Appeals. Had such
        documents been transmitted to the Court of Criminal Appeals by
        Respondent as required by statute, Relator would have received
        notice from the Court of Criminal Appeals.
                                          2.
C.      RESPONDENT
2.01    Respond~nt,Chris   Daniel     ,in his capacity as District Clerk
        of Harris County,Texas has a ministerial duty to receive and file
        all papers in a criminal proceeding, and perform all other duties
        imposed on the clerk by law pursuant to TCCP Art.2.21, and is
        responsible under TCCP 11.07 Sec. 3(c) to immediately transmit to
        the Court of Criminal Appeals a copy of the application for writ
        of habeas corpus, any answers filed, and a certificate reciting
        the date upon which that finding was made if the convicting court
        decides that there are no issues to be resolved.Chris Daniel
        District Clerk, Harris County may be served at his place of
        business at1201 Franklin Street        (77210)    Houston,TX.:_:_:__:_
                                          3.
D.      VIOLATION OF ART. 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
3.01    The Respondent violated Article 11.07 Sec. 3(c) of the Texas Code
        of Criminal Procedure by failing to provide a copy of the   2DD1~2D

        application for writ of habeas corpus, any answers filed, and a
        certificate reciting the date upon which that finding was made to
        the Court of Criminal Appeals within the time prescribed by law
        and within a reasonable time from the date on which the documents
        were requested to be transmitted.

 3.02   Requests for the transmittal of the application for writ of    ~E~~s


        habeas corpus, any answers filed, and a certificate reciting the
        date upon which that finding was made by Relator to-Chris Daniel
        District Clerk, Harris County, by mailed letters dated 11-13-2015



                                          2
                                 . '
    11-21-15 ;pursuant to Art. 11.07 Sec. 3(c) of the Code of Criminal

          Procedure. True and accurate copies of the above letters are

          attached hereto as Exhibit"A" through "B" and are also

          incorporated by reference herein for all purposes.

          To date, Relator has   recei~ed   no response from Respondent

          regarding Relator's request for transmittal of a copy of the

          application for writ of habeas corpus, any answers filed, and a
          certificate reciting the date upon which that finding was made

          to the Court of Criminal Appeals.
3.04      As is clear from Relator's letters, Relator has repeatedly put

          Respondent on notice that Relator seeks the transmittal of a

          copy of the application for writ of habeas corpus, any answers

          filed, and a certificate reciting the date upon which that findin

          was made to the Court of Criminal Appeals and that such records

          are required by the Court of Criminal Appeals to act on Relators

          writ of habeas corpus. Relator has gone well beyond any     ~~Cii

          re~uirement   or obligations imposed upon him by the Texas Code of

          Criminal Procedure~ lnt~ofulri~tSto.Rilahor's efforts, Respondent

          has wholly failed to comply with the Texas Code of Criminal

          Procedure, Art. 11.07 Sec. 3(c), is acting in bad faith, and has

          also failed to afford Relator the professional and common       ~0

          courtesy of any written responses to his correspondence     and~~~--

          requests.

:3.05     Art. 11.07 Sec. 3(c) clearly states that "UiJf the convicting

          court decides that there are no such issues, the clerk shall

          immediately transmit to the Court of Criminal Appeals a copy of

          the application, any answers filed, and a certicate reciting

          the date upon which that finding was made. Failure of the court

          to act within the allowed 20 days shall constitute such a finding




                                       3
T    Texas Code of Criminal Procedure Art. 11.07 Sec. 3(c).     a
     Respondent is in violation of this procedure, ministerial

      duties, and thus the laws of this state.

                                    4.
D.    PRAYER FOR RELIEF
        WHEREFORE, PREMISES CONSIDERED, Relator,Candy Hill Hughes
     pro se, respectfully requests a finding that the Respondent ,

     did not transmit documents to the Court of Criminal Appeals

     within a reasonable time after the date they were requested

     and that Relator brought this litigation in good faith and has

     substantially prevailed. Relator prays for an Order directing

     Respondent to transmit copy of the application for writ of
habeas corpus, any answers filed, and a certificate reciting

     the date upon which that finding was made to the Court of
     Criminal Appeals as directed in Art. 11.07 Sec. 3(c) of the

     Texas Code of Criminal Procedure and as requested in Relators

     letters( Exhibit A-B).
                                               Respectfully Submitted,
                                               By: Candy Hill Hughes
                                                  RELATOR

                   UNSWORN DECLARATION OF INDEPENDENCE

           I swear under the United States Constitution that the
           foregoing is true and correct: Executed on this~12-j-2015
                                                                \'L-<"6- ZD\S""   c..\t-H-
                                                       Candy Hill Hughes
                                                      Hughes Unit
                                                      Rt. 2 Box 4400
                                                      Gatesville,Texas.76597
                                                      u.s.A
                      CERTIFICATE OF SERVICE
           I hereby certify that a true copy of the above Application
           For Writ Of Mandamus was served on the Clerk of the Texas
           Court of Criminal Appeals by placing a copy in the U.S.mail
           on this the ~d day ofDecember       2015.

                                                              (M.)t'! ft~ll ~
                                                              RELATOR




                                    4
                                                           ·.~'.
                                        HUGHES UNiT
                                       RT.2 BOX 4400
                                 GATESVILLE,TEX~S.76597


HARRIS.COUNTY DISTRICT CLERK
1201 FRANKLIN St.
P.O.BOX 4651
HOUSTON,TEXAS~77210-4651

                                      NOVEMBER   ~3,2015

              RE: CAUSE No.1l69973-B
                  (ErParte Candy Hill Hughes)

        Dear,Clerk
          This is to place you under· notice that I have filed· an
        application for writ of habeas corpus in.the· above
                                                         '
                                                            enti-tled
                                                            -                  '




        and numbered cause. It has been over (2) years since the date
        in which I    fiU~athe   application. Please forward my         appli~a tion

        for writ of habeas corpus to the Texas Court of Criminal Appeals.
          My information is      ~s   follows. Thank you for your time in
        advance to tpis matter.

                                                                   Best Regards :_*·~tlQb
                                                              **CJ*tNtt\\\~
                                                                    (PRO SE)




. Exhibit A
                                 CANDY H. HUGHES
                                  HUGHES UNIT
                                RT.2 BOX 4400
                             GATESVILLE,TEXAS.76597

HARRIS COUNTY DISTRICT CLERK
1201 FRANKLIN St.
P.O.BOX 4651
HOUSTON,TEXAS.77210-4651

                                 NOVEMBER 21,2015
                  RE: CAUSE No.1169973-B
                     (Ex Parte Candy gfll Hughes)
       Dear,Clerk
            This letter is being written to inform you that this is my
       second request in having you forward my application for writ of
       habeas corpus to the Texas Court of Criminal Appeals please.
            My information is as follows. Thank you for your time in advance
       to this matter.

                                                      Best Regards:   :::t:\Sl~

                                                      CAuWtt~\l~
                                                       (PRO SE)




Exhibit B
                             Cause No. 1:169973-8

EX PARTE                              §        IN THE 2301h DISTRICT COURT

                                      §        OF

CANDY HILL HUGHES,                  .• § '     HARRIS COUNTY, TEXAS
  Applicant

                         STATE'S ORIGINAL ANSWER

      The $tate
      i'   ........
                    of Texas, by and through
                                        -  ·' .
                                                its Assistant District Attorney for
                  ,'I,




Harris County, files this, its original answer in the above-captioned cause,

having been serve·d with the original application for writ of habeas corpus,

pursuant to TEx. CoDE CRIM. PRoc. art. '11.07 (West 2013), and would show

the following:

                                          I.

    @applicant is confined pursuant to the judgment and sentence of

the 2301h District Court of Harris County, Texas, in cause number 1169973

(the primary case), where a jury convicted the applicant on August 17,

2009 of the felony offense of murder.@ applicant also pled true to two

enhancement paragraphs, which the jury found true. The court assessed

punishment at confinement for sixty (60) years in the Texas Department of

Criminal Justice- Institutional Division (TDCJ- ID).
    •
"

              The First Court of Appeals issued an opinion affirming the applicant's

        conviction on October 11, 2012: Wall v. State, No. 01-11-00600-CR, 2012

        WL 4857360 (Tex. App. -Houston [1st Dist.] October 11, 2012, pet. ref' d.).

                                                II.

              The State denies the fc;ctual allegations made in the instant

        application, except those supported by official court records, and offers the

        following additional reply:

                      Reply to the Applicant's First, Second, Third,

                   Fourth, Fifth, Sixth, and Seventh Grounds for Relief

              In his first, second, third, fourth, fifth, and sixth grounds for relief, the

        applicant claims that he was denied the effective assistance of counsel at

        trial. Specifically, the applicant claims trial counsel:

           1. did not give the applicant a copy of his case file;

           2. created a conflict of interest by agreeing to not give the applicant a

              copy of the offense report;

           3. failed to subpoena Wesley Brown as a witness;

           4. failed to make an opening statement;

           5. failed to subpoena an expert to refute the medical examiner's

              testimony regarding the complainant's autopsy;

           6. failed to invoke TEX. R. EVID. 614 ("the Rule") at trial; and



                                                2
.. '


           7. was generally ineffective.

       ·Writ Application at 6-10, 6. 1

               The United States Supreme Court held in Strickland v. Washington,

       466 U.S. 668, 686 (1984), that the benchmark for judging any claim of

       ineffective assistance of counsel is whether counsel's conduct so

       undermined the proper functioning of the adversarial process that the trial

       cannot be relied upon as having produced a just result.                                 The Court in

       Strickland set forth a two-part standard, which has been adopted by Texas.

       See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First,

       the defendant must prove by a preponderance of the evidence that

       counsel's        representation           fell    below        an      objective        standard        of

       reasonableness. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.· Crim. App.

       2002); Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992)

       (citing Strickland v. Washington, 466 U.S. at 688)~ Reasonably eff~ctive

       assistance of counsel does not require error-free counsel, or counsel

       whose competency is judged by hindsight. Mercado v. State, 615 S.W.2d

       225, 228 (Tex. Crim. App. 1981 ).                   Second, there must be a reasonable

       probability that, but for counsel's unprofessional errors, the result of the



       1
        The pages in the writ application appear to be duplicates, in no particular order, after pages 6-10. The
       State is listing the pages as they are numbered in the application; hence, the second page 6 is the
       second page 6 as one proceeds through the pages of the writ application.


                                                           3·
'   .
        proceeding would have been different. /d. A "reasonable probability" is "a

        probability sufficient to undermine confidence in the outcome." /d.

             Article I, Section 10 of the Texas Constitution also requires that a

        criminal defendant receive effective assistance of counsel. However, the

        Texas constitutional provision does not create a standard that is more

        protective of a defendant's rights than that established in Strickland. Black

        v. State, 816 S.W.2d 350, 357 (Tex. Crim. App. 1991) (citing Hernandez v.

        State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Therefore, an analysis of

        the effectiveness of the applicant's trial counsel in the primary case

        pursuant to the Strickland standard satisfies both the federal and state

        constitutional requirements.

             The court will not use hindsight to second-guess a tactical decision

        made by trial counsel, nor will the fact that another attorney might have

        pursued a different course support a finding of ineffectiveness. Solis v.

        State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); Blatt v. State, 588

        S.W.2d 588, 592 (Tex. Crim. App. 1979). When evaluating an ineffective

        assistance claim, the reviewing court looks at the totality of the

        representation and the particular circumstances of the case.            See

        Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).               In

        reviewing counsel's performance, the court indulges a strong presumption



                                             4
'   '


        that he acted within the wide range of reasonable professional assistance.

        /d.

        Failure to Make an Opening Statement

                In his third ground for relief, the applicant alleges ineffectiveness for

        trial counsel's failure to make an opening statement" at trial.             Writ

        Application at 8.

                The record is clear that trial counsel declined to make an opening

        statement. (3 R. R. 7). However, few matters during a criminal trial could

        be more imbued with strategic implications than the exercise of this option.
                                       .                       ! .


        Calderon v. State, 950 S. W.2d 121, 127 {Tex. App. - El Paso, 1997): An

        opening statement can give the State a preview of the defense strategy;

        therefore, trial counsel may make a tactical decision not to present on, and

        such a decision does not amount to ineffective assistance. For this reason,

        the applicant's third ground for relief is without merit, and should be denied.

        Alleged Failure to Subpoena Witnesses

                The applicant alleges in his second ground for relief that counsel

        failed to subpoena defense witnesses in the instant case. Writ Application

        at 7.    Specifically, the applicant alleges that trial counsel failed to call

        witness Wesley Brown to testify at trial.      /d.   The applicant also alleges




                                                5
 counsel failed to subpoena an expert witness to refute the medical

 examiner's testimony. /d.

       When challenging trial counsel's failure to call a witness, "the

 applicant must show that [the witness] had been available to testify and that

 his testimony would have been of some benefit to the defense." Ex parte

 White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004). The applicant fails to

 show that either of his proposed witnesses would have been available, or

 that either would have provided testimony that would have been of some

 benefit to his defense. The applicant merely makes a conclusory statement

 as to what testimony Wesley Brown would have given, and does not offer

 even a conclusory statement as to what, if any, testimony an expert would

 offer that would have helped his defense. Writ Application at 7. Therefore,

 the applicant fails to meet his burden, and his second ground for relief

 should be denied.

 Failure to Invoke tfthe Rule"

       The applicant alleges, in his fifth ground for relief, that counsel failed

. to invoke Texas Rule of Evidence 614 (also known as "the Rule") before

 trial testimony began, resulting in defense witnesses being present in the

 courtroom during testimony. Writ Application at 10. The applicant goes on




                                        6
to allege that this resulted in defense witnesses hearing each others'

testimony, thereby bolstering their own testimony. /d.

        The applicant is mistaken.                After the applicant was arraigned, but

before testimony began, the trial court asked whether either side wished to

invoke the Rule.           (3 R.R. 4).         Immediately, counsel repiied, "Yes, Your

Honor." (3 R.R. 4). Thereafter, the trial court admonished witnesses, as

they were sworn in, that the Rule had been invoked, and explained how

that affected the witnesses. (3 R.R. 4; 5 R.R. 3).

        The applicant fails to allege sufficient facts which, if true, would entitle

him to relief. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App.

1985). Therefore, the applicant's fifth ground is without merit and should

be denied.

Genera/Ineffectiveness

        In his sixth ground for relief, the applicant alleges that trial counsel

was generally ineffective overall. Writ Application at 6. 2

        First and foremost, in habeas proceedings, the applicant must allege

sufficient facts, which if true, would entitle him "to relief.                               Ex parte

Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). Even if sworn

to, an applicant's allegations are insufficient to overcome the State's
2
 The pages in the writ application appear to be duplicates, in no particular order, after pages 6-10. The
State is listing the pages as they are numbered in the application; hence, this page 6 is the second page
6 as one proceeds through the pages of the writ application


                                                    7
denials. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).

The burden of proof is on the applicant, and the standard of proof is by a

preponderance of the evidence. Ex parte Adams, 768 S.W.2d 281 (Tex.

Grim. App. 1988).

      The applicant fails to clearly articulate any legal basis for relief in his

sixth ground for relief, and therefore fails to allege sufficient facts, which, if

true, would entitle him to relief. Ex parte Maldonado, 688 S.W.2d at 116.

The    applicant    merely     expresses     his   feeling     that   his   attorney's

"representation     as a whole fell        below and         accepted   standard    of

reasonableness" without providing any factual or legal support for his

allegations. Writ Application at 6. Therefore, the applicant's sixth ground

for relief is without merit, and should be denied.

Conflict of Interest

      The applicant alleges in his first and seventh grounds for relief that

counsel faced a conflict of interest which rendered counsel ineffective at

trial and on appeal.        Writ Application at 6.     Specifically, the applicant

alleges in his first ground for relief that trial counsel's agreement with the

State to not release copies of the offense report to the applicant was a

conflict of interest. /d.




                                         8
      Ineffective assistance of counsel may result from an attorney's

conflict of interest.   Strickland, 466 U.S. at 692.    "An actual conflict of

interest exists if counsel is required to make a choice between advancing

his client's interest in a fair trial or advancing other interests (perhaps his

own) to the detriment of his client's interest." Ex parte Morrow, 952 S.W.2d

530, 538 (Tex. Crim. App. 1997) (citing James v. State, 763 S.W.2d 776,

779 (Tex. Crim. App. 1989)).        However, in order for an applicant to

demonstrate a violation of his right to reasonably effective assistance of

counsel based on a conflict of interest, the applicant "must show (1) that

defense counsel was actively representing conflicting interests, and (2) that

the conflict had an adverse effect on specific instances of counsel's

performance." /d. (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).

      Furthermore,_ in a case where counsel is appointed (as in this case), a

defendant has the responsibility to bring to the court's attention any basis

on which he believes an appointed counsel should be replaced. Malcom v.

State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982)(citing Webb v. State,

533 S.W.2d 780, 784 n. 3 (Tex. Crim. App. 1976)). In that manner, the trial

court can be afforded the opportunity to decide if the defendant can carry

the burden of proving that he is entitled to a change of counsel. /d.




                                       9
      The applicant fails to show, nor can the State find any evidence that

the applicant brought the matter to the court's attention. Furthermore, the

applicant fails to demonstrate any actual conflict of interest existed between

the applicant and counsel. Finally, the applicant fails to demonstrate that

any alleged conflict in the primary case had any adverse effect on specific

instances of counsel's performance.        The applicant cannot show that he

was denied the effective assistance of counsel due to any conflict of

interest. Therefore, this aspect of the applicant's first and seventh grounds

for relief are without merit and should be denied.

Ineffective Assistance of Counsel on Appeal

     At the conclusion of the applicant's trial, trial counsel J .. Sidney

Crowley continued to represent the applicant on appeal. See State's Writ

Exhibit A, Notice of Appeal in cause number 1169973.         The applicant's

seventh ground for relief alleges that Crowley's appointment as both trial

and appellate attorney rendered him ineffective, as evidenced by Crowley's

failure to raise ineffective assistance of counsel claims against himself.

Writ Application at 10. Therefore, it appears the applicant's true claim is

ineffective assistance of appellate counsel for failure to raise ineffective

assistance of trial counsel as a point of error on appeal.




                                      10
      It is established that to support an applicant's allegation that appellate

counsel was ineffective for failing to assign a particular point of appeal, the

applicant must meet the standard set out in Strickland. Smith v. Robbins,

528 U.S. 259 (2000); Smith v. Murray, 477 U.S. 527 (1986); Ex parte

Butler, 884 S.W.2d 782, 783-784 (Tex. Crim. App. 1994). The Texas Court

of Criminal Appeals employs the same analysis for ineffective assistance of

counsel on direct appeal as it applies to trial counsel:        (1) "determine

whether counsel's performance was deficient," and (2), if the performance

was deficient, "determine whether there is a reasonable probability the

results would have been different but for counsel's deficient performance."

Ex parte Jarrett, 891 S.W.2d 935, 938 (Tex. Crim. App. 1994 ), overruled on

other grounds; Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

Therefore, a showing of both deficient performance and prejudice is

required. Strickland, 466 U.S. at 687.

     An attorney "need not advance every argument, regardless of merit,

urged by the appellant" and to do so would disserve the very goal of

vigorous and effective appellate advocacy. Evitts v. Lucey, 469 U.S. 387

(1985) (emphasis in original).       An applicant must demonstrate that

counsel's decision not to raise a particular point of error was objectively

unreasonable and that there is a reasonable probability that, but for



                                      11
I. .
'

       counsel's failure to raise that issue, the applicant would have prevailed on

       appeal. Robbins, 528 U.S. at 285-86 (citing Strickland, 466 U.S. at 687-91,

       694 ).    "A reasonable probability· is a probability sufficient to undermine

       confidence in the outcome" of the proceeding. Strickland, 466 U.S. at 694.

                Nevertheless, and without waiving any of the foregoing arguments or

       authorities, the resolution of the claims requires information concerning trial

       counsel's strategic decisions, and confidential communications with the

       applicant. Therefore, the State believes that further factual investigation is

       necessary to determine the merit, if any, to the applicant's ineffective

       assistance claim.

                       Reply to the Applicant's Eighth Ground for Relief

                In his eighth ground for relief, the applicant claims the trial court erred

       by appointing trial counsel as appellate counseL Writ Application at 7. 3

                The applicant filed notice of appeal on August 17, 2009, in which he

       also notified the court that he was indigent, and wished the trial court to

       appoint appellate counsel. See State's Writ Exhibit A, Notice of Appeal in

       cause number 1169973. In this same notice, counsel noted that he would

       continue to represent the applicant on appeal.                        /d. The applicant signed

       this notice, although he had the option to ask counsel to withdraw from his
       3
        The pages in the writ application appear to be duplicates, in no particular order, after pages 6-10. The
       State is listing the pages as they are numbered in the application; hence, this page 7 is the second page
       7 as one proceeds through the pages of the writ application.


                                                          12
.   .
        case, and accept a different appellate attorney from the trial court.     The

        applicant's signature on a form requesting trial counsel to remain on as

        appellate counsel is prima facie· evidence that the trial court did not err in

        allowing the applicant his choice in appellate counsel.

             Moreover, the purpose of habeas corpus is to ·determine the

        lawfulness of confinement and not to serve as the substitute for an appeal.

        Ex parte Clore, 690 S.W.2d 899, 900 {Tex. Crim. App. 1985); Ex parte

        McGowan, 645 S.W.2d 286, 288 (Tex. Crim. App. 1983). Habeas corpus

        will lie only to review jurisdictional defects or denials of fundamental or

        constitutional rights. Ex parte Watson, 601 S.W.2d 350 {Tex Crim App

        1980). The applicant's claims are not of a jurisdictional defect nature, nor

        are these claims regarding a fundamental or constitutional right.

              It is well settled that a writ of habeas corpus should not be used to

        litigate matters which should have been raised on direct appeal. Ex parte

        Banks, 769 S.W.2d 539 (Tex. Crim. App. 1989); Ex parte Townsend, 137

        S.W.3d 79 (Tex. Crim. App. 2004).          Generally, factual and evidentiary

        challenges are "record claims" and should be litigated on direct appeal. Ex

        parte Gardner, 959 S.W.2d 189, 198-200 (Tex. Crim. App. 1996) (op.

        reh'g). There is no reason why the applicant could not have made these

        complaints in the trial court, and on direct appeal. However, he failed to do



                                              13
·so.   They are therefore waived, and he is now procedurally barred from

further litigation of these issues. See id.

       Therefore, applicant has failed in his burden of proof at habeas, and

even assuming he meets that burden, applicant's claim is not cognizable

because he should have raised it on direct appeal. The applicant's eighth

ground for relief is without merit and should be denied.

                                        Ill.

       The State respectfully requests that the trial court designate the issue

of ineffective assistance of counsel as an issue that still needs to be

addressed.    The State respectfully requests that the trial court order J.

Sidney Crowley to file an affidavit addressing the instant allegations of

ineffective assistance of counsel at trial.




                                        14
       .~
     .....
.'

                                                IV.

             Service has been accomplished by sending a copy of this instrument to the

             following address:

                  Candy Hill Hughes
                  #1596685 -Telford Unit
                  3899 State Highway 98
                  New Boston, TX 75570

             SIGNED this 25th day of November, 2013.



                                              Respectfully submitted,




                                                     . Flores
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin,·6th Floor
                                              Houston, Texas 77002
                                              (713) 755-6657
                                              (713) 755-5240 (fax)
                                              Texas Bar ID #24059760




                                                15
                                                              Cause No.     J/{eqct7 3
                                                             THE STATE OF TEXAS

                       {),170)1 )/; (/                      1-fu~ ~AooA/ ______

                    Z-3rfn+             District Court I County Criminal Court at Lalv No. _ _ __

                                                                Harris County, Texas


                                                                NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COUKf:

On       aeiu5T 12, 'ZCO 0                                  (date), the defendant in the above numbered and styled cause gives
NOTICE.      APPEAL of his conviction.

The undersigned attorney (check appropriate box):
     o MOVES to withdraw.
     ~VISES the court that he will CONTINUE to represent the defendan


Date


                                                                             Attorney (Printefllame)               I
                                                                                   05{70200
                                                                             State Bar Number
                             AUG 1 7 2009                                          f 40 1-.pU{SJana...
                                                                             Address
               Time:   ----:-:---c-:-;:;--.,....-;:------
                             H~rris c0:..m~.y. Tr~Y,i::lS                           '"], 2:,- Z:?S- 59ff)1
               By                     Deputy                                 Telephone Number
The defendant (check all that apply):
     .o---R:E"PRESENTS to the court that he is presently INDIGENT and ASKS the court to immediately APPOINT
          appellate counsel to represent him.
     ~s         the Court to ORDER that a free record be provided to him.
     o    ASKS the court to set BAIL.

       Accordingly, Appellant ASKS the Court to conduct a hearing, make findings, and enter an Order
Granting the requested relief.



Defendant ·(Signature)                                                        Defendant'    rinted name

SWORN TO AND SUBSCRIBED BEFORE ME ON                                      ---r1~rA~U"""G"T--1-r7~2_0_09________
By Deputy District Clerk of Harris County, Texas                      ----rt-=-rtl-.----cYf--------------
                                                                                    ..
                                                                                                STATE'S
                                                                                                EXHIBIT
                                                                      Page I of2
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                                                                ORDER



    ·· o~ ·~It?! o9                           the Court conducted a hearing and FINDS that defendant I appellant
            r  1
           0 IS NOT indigent at this time.
           ~ IS indigent for the purpose of
                    ~employing counsel
                     0 paying for a clerk's and court reporter's record.
                    ~mploying counsel or paying for a clerk's and court reporter's record.
The Court ORDERS that
    o      Counsel's motion to withdraw is GRANTED /DENIED.
    o      Defendant I appellant's motion (to be found indigent) is DENIED.
    o      Defendant's I appellant's motion is GRANTED and
               0                                                         (attorney's name & bar card number)
                    is APPOINTED to represent defendant I appellant on appeal.
               0    The COURT REPORTER is ORDERED to prepare and file the reporter's record without charge to
                    defendant I appellant.
BAIL IS:


    o      To CONTINUE as presently set.
    o      DENIED and is SET at NO BOND. (Felony,Only)


DATE SIGNED:       ----'6~/_.,J.....:.'D+/_C)_a.r....J_ _ __
                           I      I




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                     !tChrte Da"lal, Dl&trlol Clerk of Harris eeun)y, l'exsa.~ certify that
                     mlela atrue and correct copy of t11e oMglnal rocord nled and or reoordod
                     In my omce, elec!tonlcally or hard copy, aell appeal'& on IIIIa data.
                     Wltn888 my official hal)d on«Ue9f of ofDD04hle
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