                       THE COURT OF CRIMINAL APPEALS



ABLE ACOSTA,
CLERK OF COURT                                           April 20, 2015
P.O. BOX 12308,CAPITOL STATION
AUSTIN, TEXAS 78711


RE: TRIAL COURT CASE #926096-D
          WR-70,668-03

Dear Sir,
~m   resubmi~ting      a letter that was sent to this court on the
5th day of March 2015, seek to get .the court to ovder the trial
court to address the issues presented in this habeas.application
and not to request a denial. The trial court that conducted the
habeas   ignore~   a   ~!:~~   Claim that was clearly sh6wn, applicant
also ask that this court review the affidavi.ts presented with
the letter.    The·affidavits will show that applicant            ~s   not
guilty of the offense that         he~s   incarcerated for, and is being
illegally incarcerated on a void conviction.

                                                 THANKING YOU IN ADVANCE



                                                CHARLES ANTHONY COLBERT
                                                TDCJ-ID NO.l417277
                                                ALLEN POLONSKY IDNIT
                                                3872 F.M. 350 SOUTH
                                                LIVINGSTON, TEXAS 77351




                                                   .RECE~VED ~N
                                                   COURT OF CRfMIN~l APPEAL$
                                                         APR 28 2015
                                                     Ab~ Acosta, Clerk
.   '




        CLERK OF THE COURT OF CRIMINAL         MARCH 1, 2015
        APPEALS OF TEXAS
        P.O. BOX 12308,
        CAPITOL STATION
        AUSTIN, TEXAS 78711


          RR: ANTHONY CHARLES COLBERT,
              TRIAL CAUSE NO.# 926096-D.
              ORDERED TO BE SENT TO THIS COURT. FEB.

        This letter is in reference to an     ·Application For Habeas Corpus

        that was ordered to be forwarded      here by the 177Th District Court
        of Houston, Texas. Applicant respectfully ask that the motion

        attached be presented to the court, because the habeas court did

        not attempt to address the issues presented in the application

        which was presented based on a Brady violation by an     offi~er   of

        that court. The application was presented as an actual innocence

        claim, based on discovery of information given the Zanita King,

        a prosecutor for the court that was given by the victim of the

        offense, that specificly stated that applicant was not the person

        that robbed her, nor did it appear.he even knew the robbery was

        being committed. The habeas court failed to order a paper hearing

        or a full hearing. it vital that this motion be sent to the court

        and that the court be ordered to address the issues presented ,

        because the records shows the court addressed an offense that had

        nothing to do with this casei or the evidence withheld by the

        prosecutor.   ther~   should be an affidavit attached to the habeas

        application when forwarded by the state from the complainant, and

        one from the investigator, which a copy of that motion is attached

        to the motion presented here.
                                               THANKING YOU IN ADVANCE

                                               ~-edka7 ~\\\.\t:ta..'¥1
                                              ANTHONY CHARLES COLBERT
''




                           THE COURT OF CRIMINAL APPEALS OF TEXAS

     EX PARTE    I    ,'
                                              §
     CHARLES ANTHONY COLBERT,                 §     NO.
                  APPLICANT,                  §           ------~---------




                     MOTION OBJECTING TO THE CONSTITUTIONALITY OF THE
                         STATE HABEAS COURT FACT FINDING PROCEDURE

     TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

     Applicaht respectfully present's this motion challenging the

     Constitutionality of the state habeas co.urt findings,· and the way

     it was conducted. Applicant conviction resulted from a violation

     of   ~is   constitutional right in cause number 1926096-D, in the

     l71th District Court, Harris County.

                                     I.   JURISDICTION

            This court has jurisqiction to review-this ·issue as persented

     in this habeas preceding pursuant 'to Tex. Code Crim. Proc .11. 07 ( 4)

     (A)(2).

                                             II.
                               REASONS TO SUSTAIN THIS MOTION

     On Feburary 19, 2015, the habeas court ordered the clerk of the

     court to forward the records to this court with otit allowing the

     applicant to have an evidentiary hearing to cross-examine Zanita

     King, the prosecutor thats shown to had withheld favorable evid-

     ence. The court failed to allow the applicant to object to the

     states findings, which was error, because the habeas proceeding

     was based on a Brady violation that involved the prosecutor, and

     the following reasons or sufficient to warrant relQef;

          l).The court failed to allow applicant to have a "Full and         ..   i_

     Fair" hearing, or to; anwser to any of the issues presented.



                                             ( 1)
'I




            2).The witness statement withheld by the prosecutor could not
     have been discovered prior to filing the previous application and
     applicant was told by the prosecutor the witness didn't want to
     be contacted.
            3).The prosecutor Zanita King wi•thholding of the evidence was
     a direct violation of Brady V Maryland,373 u.s,.83(1963)
         4).Because the prosecut~r that did the fact fin~ing was also
     a friend of Zanita King, the prosecutor had an obligation to seek
     justice, and not just simply ignore the          is~ue   when theres clearly
     a substantial showing of a constitutional right violation.
        S).The prosecutor Never addressed the issues presented to the
     habeas. court, they only addressed a case that occurred following
     the case at issue, and is of no consequence to the issue presented
     here.
            6). The evidence present in this m.abeas proceeding was dis-_
     covered by a:· Det.   c   Carey Wall maker; who was hi red by ·an attorney
     name    Da~hne   Silverman, See the attached exhibit {A).
            7).The attorney asked the applicant to look into his case
     because his trial counsel had recently had (2) -allegation of in-
     effective assistance cousel sustained by the Bar association.
            8).Texas Penal Code 37.09(A)(l)(2) and 39.02, states that,
     "a public servant commits an offense if he with intent to obtain
     a benefit, or with intent to harm or defraud another" by temper-
     ing with, or fabricating physical evidence, as here in this case
     when the prosecutor withheld the complainants statement, and by
     falsifying the records, and telling the defense the complainant(
     didn't want to be contacted by no one to cover up her statement.
            9).The defense counsel_ was ineffectivd for not extending his
     investigation beyond the state files, whtch is a reflectioh of
     McDaniel v Brown,l30 s.ct.665(2010)("petitioner is entitled to
     relief because his counselor was ineffective for failing to deve-
     lope and introduce at        tri~l   the evidence tendered on habeas")
            10) .the state habeas court findings should not be sustained
     because the. records and the affidavits presented by applicant
     was sufficent to show that the prosecutor put winning above her


                                             ( 2)
ethical obligation to seek justict, which was a violation of the
ABA RULE OF PROFESSIONAL         CONDUCT~Model    Rule 3.8, by withholding
expculpatory evidence. See Strickler V Greene,527 U.S.263(1999):
Dennis'V Wetzel,966 F.Supp.489:
       ll).Applicant guilty plea was impr-operly induced because of
the   ~ros~cutor    withholding evidence that corroberated applicant
claim that he was      no~    part of the robbery, nor did he know the
robbery was happening, and because his counsel tailed to do an
in,dependent investigation of the case.
      12) .Applicant was deprived of his right to have the p,rosecutor
                                                                    I
anwser to the issues         presen~ed   to the habeas court, and denied of
~n    o~portunity   to cross-examine the prosecutor and the defense
attorney.
      13).This habeas application was presented pursuant to art.
ll.07(4)(A)(2), and the Uhitad States Supreme Courts standard in
Murray V Carrier,477 U.S.478(1986):Ex Parte            Anthon~raves,271

s·.w.3d 801(2008):Ex Parte Santana,227 S.W.3d 700(Tex.Crim.App.20G)
      13).Th~   habeas court failed to address the issues presented
and adopted the states findings that. mainly pointed to an offense
that occurred following this case, and had nothing to do with the
prosecutor withholding the evidence, nor did             it have anything
to do with applicant being improperly induced into pleading to
the offense related t6 the probation.             Applicant respectfully ask
that this Honorable Co~rt remand this case b :1c k t ') the hab·:as ,; ,
 court .and order an evidentiary hearing to the extent of a full
and fair hearing.
WHEREFORE PRIMISES 60NSIDERED, applicant pray that this honorable
court order this case remanded back to the habeas court, and that
the court properly resolve the issues presented here in this
application.
                                                 RESPECTFULLY SUBMITTED,
                                                tho.rb~ ~ UriJwl; ~@a-qq
                                                ANTHONY CHARLES COLBERT




                                         ( 3)
                                     INMATE DECLARATION

                   I. Anthony Charles Colbert, being presently incarcerated in
the Texas Department Of Criminal Justice, presently at the Allen
B Polunsky Unit, polk County, declare bn this the_j2Lday of March
2015, that all claims made here in this motion are true.


                                                           ihrul.tk ~. 1"4~ .... '"'''tl)31-
                                                           ANTHONY CHAR~ COLBERT



                                   CERTIFICATE OF SERVICE

                   I certify that on this day the ~~day of March 2015, that

a true and correct copy of this motibn was sent. by first class
--
     "'   · .. ,
u.s.               Mail to the prosecutor for the state.

                                                          ~         '{\ . tdJwf;   ~ \Lll'fl'tr
                                                       ANTHONY CHARLES COLBERT



                                                       ANTHONY CHARLES COLBERT
                                                       TDCJ-ID NO.#l417277
                                                       ALLEN POLUNSKY UNIT
                                                       3872 F.M 350 SOUTH
                                                       LIVINGSTON, TEXAS
                                                                       77351




                                             ( 4)
.,




                 ExRIBIT (A)


     AN AFFIDAVIT FROM DETECTIVE   CAREY WELLMAKER
~   .. '   ,.




                                                    Affidavit of Carey Wellmaker

                I was hired by the attorney Daphne Pattison Silverman to investigate the allegations in Applicant
                Charles Colbert's post conviction \\rri.t.l\1r. Colbert was convicted of aggravated robbery.

                I was able to locate the complaining witness, Jameshla Lev.-is. Ms. Le"\\o-is was very pleasant and
                forthright. She did not ever tell me that she was afraid of any of the defendants and did not tell me
                that she had been threatened by anyone in regards to her testimony. Further, based upon my
                evaluation of Ms. Lewis's demeanor, she did not appear to be afraid of any of the defendants or
                appear to feel threatened in any way. By contrast, Ms. Lewis actually appeared genuinely concerned ·
                that Applicant Colbert had been convicted when she had told the prosecutor that Colbert was not
                involved with the robbery~
                Ms. Lewis remembered the incident in detail and recounted those details to me which I reduced to
                an affidavit and she signed. I shm.ved Ms. Lewis photogmphs of each of ~1c defendants. She was
                able to easily identify the robbers, and she was able to easily tell me Colbert was not one of the
                robbers. She described her view of the scene including Applicant Colbert who was outside in a car ..
                She described this scene in detail and was able to explain to me why she did not believe that Colbert
                was involved with the robbery. She was absolutely confidant in her identification of the robbers. Ms.
                Lewis was very willing to come to court and tell the.court what she told me in order to resolve what
                she considers a tenible injustice.     ..

                When I interviewed Ms. Lewis, I did not tell her anything that Applicant Colbert had said. I
                interviewed her with completely open ended questions, not designed to give her any information
                about my thoughts or knowledge of the case.




                         $       GEORGE WAYNEWB.U!AKER
                                 My Commission Expires
                                    January 10.2015            Carey Wellmaker


                       to and subscribed before rue on this the Z'oday of . ~A./C             , 2013.
                              -1 / .. /)                        -

                Notary Public
