Mr. Ervin kay November 9, 2015
TDCJ #1331828

Darrington Unit

Rosharon, Tx. 77583

TEXAS COURT OF CRIMINAL APPEALS
ATTN: Court Clerk y
P.O. Box 12308, Capitol Station
Austin, Tx. 78711

 

Re: CauSe NO. 83¢710-01; T.C. # 1028331-A: 1028332-A,
EnClOSed "TRAVERSE" TO TRIAL COUNSEL'S RESPONSE, IN THE

INTEREST OF JUSTICE AND JUDICIAL ECONOMY.

Dear Court Clerk:

Enclosed, please find an Original Copy of Petitioner's
"TRAVERSE" to the Trial Counsel's response, to be presented
andv filed before the Court. Please file said 'Traverse'
before the Court, having the appropriate Jurisdiction over the
same, at the Court'S» earliest convenience. By copy of this
letter and the enclosed 'Traverse', I am forwarding the same
to the Respondent: HARRIS COUNTY COURTHOUSE, 262nd Judicial
District Court, 1201 Franklin, 15th Fl., Houston, Tx. 77002.
Your help in filing said 'traverse' before the Court, having
the appropriate Jurisdiction over the Same, at the Court's
earliest convenience, would be greatly appreciated.

Respectfully submitted,

/\/

Ervin Kay
Petitioner Pro Se
TDCJ #1331828

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Cub&e NO. 1028331-A; 1028332-A
WRIT NO. 83¢710-01

 

Ex Parte § In The 262nd Judicial
§ - District Court Of

ERVIN KAY,

(Applicant) _ § Harris County, Texas

 

APPLICANT'S "TRAVERSE" TO ATTORNEY'S
AFFIDAVIT AND RESPONSE
IN THE INTEREST OF.JUDICIAL_ECONOMY

 

TO THE HONORABLE JUDGE OF SAID COURT:

PLEASE TAKE NOTICE, that COMES NOW, ERVIN KAY, Applicant,
Pro Se, in the above styled and numbered cause, files this his
'Traverse' to the Attorney's Affidavit, in good faith, and in
the interest of justice. Applicant asserts due process would
be best served by this Court entertaining the same) and in

support thereof, your Applicant would present the following:

I.

WRIT PROCEDURES

That your Applicant advanced a Post-Trial Writ of Habeas
Corpus, challenging the Constitutionality of his confinement,

more than five (5) years ago, (2010). The Trial Court issued

2

forth an order 'Designating Issues' to: be resolved on
September 29, 2010. In light of the lengthy delay, your
Applicant filed a 'Petition For Writ Of Mandamus', Cause
No. 83¢710-01, seeking to compel the Trial Court to resolve
issues designated more than five (5) years ago. Petitioner
sought to challenge the Constitutionality of his confinement
on the grounds of 'Involuntary Plea' and 'Ineffective
Assistance of Counsel.' On September 23, 2015, the Texas
Court of Criminal Appeals issued forth an Order, holding the
'Mandamus In Abeyance' pending `the Trial Court's response on
its non-compliance with the strictures of Art. 11.07 -Sec. C,
V.A.C.C.P., compelling the Court to forward its response to
the Higher Court in thirty-five (35) days.

On October 26,_ 2015, Trial Counsel, JEROME GCDINICH, Jr.,
filed his response to Petitioner's Writ, contending, inter
alia, ".I do not remember Mr. Kay," and relied on his 'usual'
practices and procedures in 200§. Counsel concedes he was
clearly cognizant of Applicant's mental health issues, and the
'medication' he was on at the_time the Attorney induced the
plea. Your-' "Applicant asserts he was mentally ill, and
sufferred several disorders,v such that, he was found
[incompetent] to proceed as a result of a Psychiatric
EValuation. (See Appendix 1'& 2, annexed to the Writ). There
was never any subsequent or independent Psychiatri_c Evaluation
from any one in the Mental Health Science Community that made
a determination whether or not Applicant was [now] 'competent'

to grasp the magnitude of the plea and proceedings against

3
him. Moreover, Applicant was Psychiatrically diagnosed with
suffering Anxiety, Schizophrenia, ‘Depression and Suicidal
tendencies,_ along with Insulin Dependent. Applicant was
caused to take. sedative and disorientative medication, which
entailed ELAVIL; KLONOPIN; EFFEXOR; VICODIN and SEROQUEL. The
doses were increased at the time of the plea. On Page three
(3) of Applicant's Writ, the effects and mental impairment
of the medication is highlighted on each Medication. Even on
this date, (11/9/15), your Applicant cannot recall or
comprehend the magnitude or consequences of the offense or the
subsequent plea; Applicant was up a` full three (3) days
straight, on drugs, at the time of the offense, and in light
of being delirious and ill a altered state of consciousness,
Applicant cannot recall the events of the offense. After
being diagnosed subsequent to the offense, with the increase
of sedative and disorientative medication, your Applicant was
determined by members of the Mental Health 'Science Profession
to be mentally incompetent -to stand trial or 'to grasp the
magnitude of the proceedings against him. There was never any
subsequent testing to determine otherwise. _No Attorney, worth

their salt, would have coerced his` Client to accept a

 

£hirty;Five:E§§§ year guilty plea, without any subsequent
ll;sychiatric Evaluation after his client was previously
diagnosed as 'incompetent', and with the knowledge 'of the
effects of the tranquilizing, disorientative and delusional

components `of Psychotrophic Medication. Applicant asserts'

that 'science', as it relates to mental science and the mind's

4
effect on Psychotrophic Medication, combined with the fact
there was never any subsequent 'approval' of 'competence'
after a declaration of 'incompetence', contradicts Counsel's
general denial and his general practices of 2005. In in fact
it was Counsel's general or usual practice in 2005 to coerce

his Client to accept agTh_i¢._rty;Five (35)/year guilty plea, with
evidence of'a clinically diagnosed-vdetermination of 'mental
incompetence', combined with his client being on heavy dosage
of Psychotrophic» Medication which clearly alters one"s mental
state, and has a tranquilizing effect, then this Court should
find Counsel ineffect_ive, in breach of the 6th Amend_ment
guarantee. Applicant asserts he would have never pleaded
guilty and would have insisted upon Trial had he been
competent enough to understand the proceedings and charges
against him. Hill v. Lockhart. 106 S.Ct. 366, (19_85)', and its
progeny. » Applicant further asserts the knowing', voluntary and
intelligent component of the guilty_plea.

-Applicant was sedated, incompetent and mentally impaired,
in light of the heavy dosage of psychotrophic medication, to
grasp the full magnitude and 'vol_untary, intelligent and
knowing component of the plea proceeding against him. Counsel
knew or should have known a 'subsequent evaluation' from
members of the Mental Health Care Profession was warranted
before having his Client waive his right to Trial and plead
guilty. Counsel's duties `and the 6th Amendment guarantee

warranted a 'competentcy' determination, after , a clear

diagnosis of 'incompetency'-. Consequently, this Court should

5
determine Counsel's general denial of his alleged 'usual
practices"demands further resolution and that there patently
exist controverted, unresolved facts material to the legality
of Applicant's confinement that warrants an -'Evidentiary
Hearing' on the Merits, 'or a REVERSAL herein, in light of
Ineffective Assistance of Counsel~ and Involuntary Plea, as
argued, supra, and as argued in the Writ. Counsel's general
denial and assertion of. his 'usual_practices' are contradicted
by Science, as articulated in. the Mental Health Science
Profession, and the 6th Amendment guarantee to render

'effective' assistance of Counsel.

WHEREFCRE, PREMISES, ARGUMENTS yand AUTHORITIES
CONSIDERED, your Applicant prays and respectfully urge for
this Honorable Court to deny Counsel's general denials, in
light of the above argument. Applicant prays this Court would
_find Merits to his claims and find the resulting conviction is
Constitutionallyrinfirmed§ Applicant prays for an Evidentiary
Hearing .on the Merits of his Claim, or alternatively, a
recommendation for REVERSAL, or any other, further or
different relief this Court deem is just and proper, in the

interest of justice. It is so prayed for.

Respectfully submitted,

ML

RVIN KAY </

Applicant Pro Se
TDCJ #1331828
Darrington Unit
Rosharon, TX¢ 77583

AFFIDAVIT

PURSUANT TO TITLE 6, CHAPTER 1321 V.T.C.A._, CIVIL PRACTICE

AND RiEMEDIES CODE, AND 28 U.S.C. § 1746:

I, ERVIN .KAY, Petitioner, Pro Se, in the above styled
and numbered cause, being currently confined in the Texas
Department of Criminal Justice - Institutional Division, at
the Darrington Unit, located here in Brazoria County, Texas,
have read the foregoing "TRAVERSE TO TRIAL ATTORNEY'S
AFFIDAVIT" seeking redress from this Constitutionally
infirmed conviction, on a challenge to the 'voluntariness' of
his plea, and Ineffective Counsel, have read the foregoing
"Traverse" and hereby DEPOSE AND CECLARE under the painl and
penalties of PERJURY the foregoing "TRAVERSE" is true and

correct to the best of Petitioner's belief and knowledge.

EXECUTED oN THIS THE _§]`U" DAY oF J\SOUC»M\UC{` , 2015.

ls-LW

ERVIN KAY gj-/

Petitioner Pro Se
TDCJ #1331828
Darrington Unit
Rosharon, Tx. 77583

cERTIFIcATE 0F SERVICE

I, ERVIN KAY, Petitioner, Pro' Se, files this his
"TRAVERSE TO COUNSEL'S AFFIDAVIT", in good faith, and
in the interest of justice, seeking redress against a{
Constitutionally infirmed conviction, hereby CERTIFY that a
true and correct legible copy of the foregoing "TRAVERSE" was
forwarded and served on the below named and listed parties by
placing the same in the United States Mail, in a wrapper, with`

pre-paid postage affixed thereto, on .this the §§+L\ day of

=§¢g;»;\aé, 2015.

1. TEXAS COURT OF CRIMINAL APPEALS
Attn: Court Clerk
P.O. Box 12308, Capitol Station
Austin, Tx. 78711

2. HARRIS COUNTY COURTHOUSE
262nd Judicial District Court
Attn: Court Clerk
1201 Franklin, St., 15th Fl.,

Houston, Tx. 77002

ERVIN KAY

Petitioner Pro Se
TDCJ #1331828
Darrington'Unit
Rosharon, Tx. 77583

