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February 25 , 2015

Court Of Criminal Appeals RECE|VED 'N
Clerk, 'Abel l\cost;€i_"'."?»v COURT oF CR,M'NAL APPEALS
P.o. Box~12308,. capital Statié§n ,
Austin, Texas 78711 MAR 03 2015

RE= Ex parte Matthew' cotten Abe' Acosta~lclefk

Writ NOS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-4'32-‘--l-373-1227020-A;
C-432-010374-1227021-A; C-432-010375-1227111-A.

Dea]'.' Clerk,

Enclosed you will find "Applicant's Traverse__To the '_I‘rial Court's Findings` of
FAct and Conclusion of Law" in the above stiled and numbered causes. Please file-
Stamp said instrument and bring it to the attention of the court in your usual fashion.

Thank you for your time and cooperation.

Respectfully Submitted:

Matt:hew Cotten No. 1826716
Coffield Unit

2661 F.M. 2054

Tennessee Colony, Te.xas 75884

CC:

Steven W. Conder

Assistant DiStr'ict Attorney
401 W. Belknap

Fort Worth, Texas .76196-0201

writ Nc». c-`432-\010371_)1222_3316;+A
Ex Parte In The 432nd Judicial

District Court

Matthew Cotten

mmw}mw}

Tarrant County, Texas

Applicant's Traverse To The Trial Court's Findings Of Facts
And Conclusion Of law

Tb The Honorable Court Of Criminal Appeals:

Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support thereof will show this court the following:

.Grounds For Relief
On January 4, 2015, Applicant filed this foregoing writ of habeas corpus

alleging five constitutional violations during the course of his trial court proceeding.

In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No.1222336b3, is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph
true; thereby making his punishment excessive§

In ground number two, Applicant contends that his sentence of ghirtyiyears in Cause
No. 1222336D , is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as' required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number_three, Applicant contends that he _was denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegatiOnS as required by Section 12.42(d), Texas Penal Code; thereby making his
thirty year sentence void.

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
'failed to read the full "Miranda warning" as required by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement against§zhimself.

Argument And Authorities
Ground Number One

In ground number one, Applicant argued that his=§entence of thirty years in
Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial"-shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For writ Of Habeas Corpus

In addressing ground number one, the district attorney argued that relief should
be denied simply because ¥TFthe indictment alleged two prior felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant!s constitutional
questions of law and fact regarding the applicant's clainlthat the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and
R.R. Vol#2, pp. 109 through pp. 114).

_Applicant maintains that because the "Judgment of Conviction and the Reporter's
v Record" at trial shows-ty@t applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#2,pp.109 through pp.114) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's

findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1).

Habeas Court Memorandum/ Findings

On February 2, 2015,-the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
4 decussio --"The Court finds that the applicant's thirty year sentence is not excessive.
The court recommends that this ground for relief be denied." (See; Memorandum / Findings,
pp.l).

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation to ground number one based upon the fact that the trial
court's findings is contradicted bY, the lrecord of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See; Judg-

ment of Conviction By Court and (R.R. Vol#Z,pp.lOQ through pp.114).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only- one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See; Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewi$e, a reviewdgfthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentence;qf thirty years void. Mbreover, the record shows that
the district attorney only asked the trial court to take iudical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement aiiegation, the trial court illegally concluded:

!Based upon the foregoing evidence and the information that's been provided to

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the»court and your admission, the court hereby finds you guilty of all five caus§ '
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby
sentences you to 30 years in the Institutional Division of the Texas Department of
Crimina1 Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years ~
in the Institutional Division of the Texas Department of Criminal Justice." (R,R.
Vol#3,pp.86,line 18 through: pp.87,1ine1-7). §

l

Section 12;42(d); Texas Penal Code governs the punishment for habitual felony'
offenders, and requires the State to present evidence of two prior felony offenses '
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S.W.3d'508,
511(Tex. Crim. App.2006). IN explaining how Section 12.42(d) operates, the Court of
Criminal Appeals have consistantly held »that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish-
ment`can not be legally 'enhanced. Cole V. State, 611 S.W.2d 79, 80(Tex. Crim. App.
1981); Mizell V. State, 119 S.W.3d at 806(Tex. App. 2006); Jordan V. State, 256
s.w,3d 290, 293§Tex.crim. App. 2008). `

Here, in applicant's case now before the Court of Criminal Appeals the record
shows that at the;mnu§mad: hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain§’ any evidence
of any prior felony convictions. (R.R.-, Vol#3,pp.7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.
Ground Number Two and Three

In ground number two, applicant argued that his sentence of thirty years is
Void because the State presented "no evidence to support the enhancement allegations
required by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

qy-

In ground number three, Applicant argues that he was denied dueg¥process and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his
thirty year sentence void.

State's Reply To Petition For Writ Of Habeas Corpus

ln addressing grounds two and three, the district attorney argued that relief
should be denied because:

VThe record herein is not totally devoid of evidentiary support for enhancing

the applicant's sentencing range." (See; Statevs Reply,pp,§),

Mbre specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (l) "The applicant entered a
judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
themapbéaran§§;confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding applicant's claim that the State presented "no
evidence" to support. the essential elements of the enhancement paragraph as required
by Section 12.42(d), Texas,Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United'States Consti-
tution. (State's Reply, pp.5-6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) armdicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts Bave long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the iudqe or the iury, in no event shall a person charged with a criminalféoffense
be convicted upon his plea without sufficient\evidence to support the same. Artitke
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(TeX.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. louisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-~
tigation report is inadmissible as proof of a final ¢onviction where the P.S.I. report
. did not con$ain certified copies of prior iudgment of Hconvictions against the appli-
cant. Gar¢ia V. State, 930 S§.W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
a stipulation to be considered as evidence where the plea is before the.court, the state
must introduce a copy of the iudqment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at
368,~ m parte Rich, 194 s.w.zd at 513.

Here, in applicant's case nodibefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
` examination of witnesses, and consented to oral and written stipulations of

evidence. (See§ State's Reply, pp.5).

In conclusion, the record clearly shows that the State denied applicant due
process aid due cou§se of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas.Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essential elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum / Findings

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.
The Court recommends that grounds for relief be denied. (See: Memorandum / Findinqs,

pp. 1).

Applicant's Traverse To The Trial Court's Findinqs

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
.evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his iudicial confession standing alone is not enough
to support proof of a final \kpnviction, where the P.S.I. report did not contain
certified copies of prior iudgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513.‘,

*The Texas Court of Criminal Appeals have long held that in all criminal prosecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the iury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
Criminal Procedure; Stone V. State, 919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S.W.2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies
of prior iudgments of convictions against the applicant. Garcia, 930 S.W.2d at 623.
In summary, the State must introduce a copy of each iudqment of conviction, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#2,pp.114,'line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wede
"no evidence" of prior convictions contained within the P.S.I. report. §Thus, basedv
upon the record,l no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
vmust be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearinq.

Ground Number Four And Five

In ground number four and five, Appligant argued that Detective~Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State Constitution when he failed to read the full "Miranda Warning" to him as required
by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure.

In ground number five, Applicant argued that Detective Anderson violated his-due
process right under the fifth and fourteenth amendment of the United States Constitu-
tion when he threatend§ physical harm to him and his property in order to coerce him

to give a self-jncriminating statement against himself.
State's Reply To Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable
_because these same complaints were reiected on direct appeal." (See; State's Reply,
pp.6).

However, the district attorney has failed to address applicant's constitutional
questions of law and fact regarding additional evidence that is being presentédzgfor
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and reiected on direct appeal aare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852(TEx. Crim. App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. Crim, App. 1991); Ex parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App.
1986).

Habeas Court Memorandum / Findings

In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not itognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trialn~court's recommendation that ground four and five be denied based upon the trial
court's finding that: l v '

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that
are based upon new theories that were not presented on direct appeal. Ex parte Good-
ma`n, 816 S§»w._;">,zd 383, 385(Tex. 'crim. App. 1991); Ex parte Russell, 738 s.w.zd 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally }:unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussier, 846 S. W.2d at 852
(Tex Crim. App. 1992)(granting re1ief due to lack of iurisdiction); Ex parte Russell,
738 8. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.W.2d 189(Tex Crim.App. 1982)(qranting relief
do to the improper excusal of a veniremamber): Ex parte Clark) 597 S.W.2d 760(Tex.
lCrim.-App.1979)(granting relief due to the trial.;court1s failure to apply the law to
the facts of the case).

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial @court-erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of Iaw, pp.14).

After comparing applicant's ground number four in his habeas corpus petition to
'applicant's claim number ione on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --"applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause remanded back to
the trial court for a new trial. n

Likewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review
of applicant's fifth ground for review on his habeas corpus petition shows that he
alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth Amandment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incriminating

statement against himself. (See: Applicant's Memorandum of law, Dp.17).

In summary, after comparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that
the claims are not the same because applicant is now presenting a constitutional issue
1of¢'fundamental error based upon a theory not alleged on directrappeal. Consefuently,
the trial court's finding that --"applicant's Miranda and due process grounds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one,.two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Mbves The Court..

Respectfully Submitted:

W/Mg/@MV

Matthew Cotten No. 1826716
coffield unit `

2661 F.M. 2054
Tennessee Colony, Texas 75884

10

Oertificate Of Service

- I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
Copy of this foregoing instrument has been served upon S'teven W. Conder, Assistant
District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th
day of February, 2015.

Siqm WM &12&~
Matthew Cotten No. 1826716

Applicant, Pro sey,_;.§:,§}§

11

WIit NO. C-432-010372-1227019-A

m Parte , In The 432nd Judicial

District Court

warrant county, `Tezes

em_ooooo¢mcoo

Matthew Cotten
Applicant's Traverse To The Trial Court's Findings Of Facts
And Conclusion Of law
To The Honorable Court Of Criminal Appeals:
-Now'Ccmes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support-thereof will show this court the following:

Grounds For Relief

"Le@;fOn*January”4;;2015;`Applicant'filed?this`foregoin© writ of hah`ea`"s"'~~"c:`oi‘»"p`usi`»~-'`~>-`1#-1~"~~`--~-~-l-`~~~~f‘7

 

In ground nuber one, Applicant contends that his sentence ofthirty years in Cause
No-1227019D _, is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227019D , is void because the State presented "No Evidence" to support_the n
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he _was denied due process and

due course of 1aw when the State presented "no evidence" to support the enhancement,

nallegations as required by Section 12. 42(d), Texas Penal Code; thereby making his

thirty year sentence void.

In ground number four, Applicant contends that Detective Anderson violated his

"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he

failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure. ` l

In ground number five, Applicant~contendsmthatvhetective“£nderson,vdrnrnnai:nis __________
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened

physical abuse to applicant in order to coerce him to give a self-incriminating

statement against' himself.

Argument And Authorities
Ground Number One,

In ground number one, Applicant argued that his sentence of thirty years in
Cause No. 1227019D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial“ shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For writ Of Habeas.Corpus

 

ln addressing ground number one, the district attorney _argued that relief should

 

*t~v“'“be~denied“simply because'=“”the indictment alleged two prior'felony convict16ns:
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
_Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
-his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clain1 that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only

found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and

R. R. Vol#Z, pp. 109 through pp. 114).

§

_Applicant maintains that because the "Judgment of Conviction and the Reporter's
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#Z; p.109 through pp.114) there is no evidence contained within the record

to support the trial court's habitual offender finding. Therefore, the habeas court's

findings is not entitled to the presumption of correctness under 28 U. S. C. §2254(e)(1).

Habeas Court Memorandum/ Findings

On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
decussion--"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp~l)~
Applicant's`iTraverse To The Trial Court's Findings

_ Applicant now contends that the Court of Criminal Appeals should not adopt the r_

trial court' s recommendation to ground number one based upon the fact that the trial

court's t findings is contradicted by the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of Conviction By Court and (R.R. Vol#Z,pp;lOQ through pp.ll4).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). likewise, a review'gfthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentence of thirty years void. Moreover, the record shows that'
the district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested{ (R.R. Vol#3,pp.7, line 6 through
pp.S, line 1~15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement allegation, the trial court illegally concluded:

PBased upon the foregoing evidence and the information that's been provided tol

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the cou§t and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, ali respectively styled the
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby

sentences you to 30 years in the Institutional Division of the Texas Department of

 

 

§=§“z==€f1mTHBL~GHSETEG==EH-€HHSE~N “”TQQVITTz°the€OurE*“H"§:'" "“ " ` “°2“_'

"shows that at‘thel§f;.`

'in the Institutional Division of the Texas Department of Criminal Justice." (R. R.

Vol#3/Pp- 86, line 18 through pp.87,line1-7).

Section 12:42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S W.3d 508,
511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held vthat.the State must present evidence which
supports the enhancement allegations contained in the indictment. This_is because, if
the proof at trial fails to correspond with the enhancement allegations, the punishs
ment can not be legally enhanced. Cole V. State, 611 S W. 2d 79, 80(Tex. Crim. App.
1981); Mizell V. State, 119 S. W.3d at 806(Tex. App. 2006); Jordan V. State, 256~

.~S. W. 3d 290, 293(Tex Crim. App. 2008)

"-~~W~Herepein applicantls~case now:before the Court of~CriminalwAppeals~the-record~-~~~e~e~

.,. ~s.`,,,v.._.`__e

 

"_: hearing the State only asked _the court to _také Judicial

 

notice of the presentence investigation report which did not containr any evidence
of any prior felony convictions. (R.R. Vol#3,pp-7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant' s sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three 4

_ In ground number two} applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations
required by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

t In ground number three, Applicant argues that he was denied due process and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42_(d), Texas Penal Code; thereby\making his

thirty year sentence void.

 

 

J:jimFFUf“WrIt“Of“HEB§§§“COf§E§’°""_ 1 '_`5_ _':j"“"ii'_ x

 

vIn addressing grounds two and three, the district attorney argued that relief

should be denied because: l , _ (

"The record herein is not totally devoid of evidentiary support for enhancing 4

the applicant's sentencing range." (See; Statels Reply,pp_5),

Mpre specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
' judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
thehappearanc§,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional
1uniquestions:of:law~andrfactwregarding”applicant"s“claim:that:the;Statenpresentednlno;¢;melfm1
,_- ' “'evidence" 99 9991>099; ‘ 999 99999999,9;99999999;9;9 ;999;9999999999_9999999999; 99;99999999;` ; ;_
by Section 12. 42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; wm
and due process under the Fifth and Fourteenth Amendment of the United States Consti-

tution. (State' s Reply, pp.5- 6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver Of his right to the appearance, confrontation and cross-'
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a.criminal;;offense'

l be convicted upon his plea without sufficient evidence to support the same. Article.

' 1.15, Texas Code Of Criminal Procedure; Stone V; State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.WLZd 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.Zd at 483; Thompson V. louisville, 362 U;S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-,

tigation report is inadmissible as proof of a final conviction where the P.S.I. report

1 did not contain certified copies of prior iudgment of convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.l996). Likewise, in order_for
a,Stipulationjmiln;cnnsidered-as-evidencelwhere_thelplea_is"before_the_courtnlim;stateg__
nmst introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone{ 919 S.w.Zd at 426; Ex parte Brown, 757 S.W.2d at
368; EX parte Rich, 194 S.W.3d at 513.

` Here, in applicant's case nomlbefore the Court of Criminal Appeals the record
- shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a judicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
_ examination of witnesses, and consented to oral and written stipulations of
evidence. (See: State's Reply, pp.5),

\_.- y - , .;;;Lé;§§fl<;£'z;$;il<.>;nl'; ible;' 11§<§§@§§;9§?§¥}?;';$§9‘:§ ;§?_1§§;§?1?; _S_'C;a;t.€ ,@€13§<?$1;,§9£111;§§13?;§1_1?; ; ; ; ; __, _ - _ _ _
process add due course of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentiaj elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum`/ Findings

In addressing ground number two and three, the trial court erred in stating :
- "The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.-

The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp; l)§

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial

court' s finding that--"applicant's iudicial confession (standing alone) provides some

.evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his 1udicial confession standing alone is not enough
\ to support proof of a final '¢pnviction, where the P.S.I. report did not contain t
certified copies of prior 1udgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
_ Rich, 194 S.W.3d at 513.

1 _ The Texas Court of Criminal`Appeals have long held that in all criminal prosecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the 1ury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
'~Criminal Procedure; Stone V. State, 919 S. W.2d 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S W.2d 694, 698(Tex. Crim.App. 1986).L1kewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as

proof of a final conviction, where the P. S. I. report did not contain certlfled,coples

 

F:Qf prior judgments of_ convictions against the applicant' Garcia"gBO S W°zd at 623

"""” In summary, the State must introduce a copy of each iudgment of convlction, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
1udicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R. R. Vol#Z,pp.114, line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence" of prior convictions contained within the P.S.I. report. IThus, based
upon the record( no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment haaring.

Grou`nd Nmnber Four And Five

In ground number four and five} Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State Constitution when he failed to read the full "Miranda Warning" to him as required

--~»al 1~1-¢-\-\ _______________
JJy tu.b.u....L§=So. LL, . J\a]\L l lc.zx_a.b Cuu€' \J.L CJ..Luu.ud.L r.l.u\.ccuuu.c:.

 

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United_States Constitu-
tion when he threatend .physical harm to him and his property in order to coerce him '

to give a self-jncriminating statement against himself.

State's Reply¢Tb Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that-

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable`

because these same complaints were re1ected on direct appeal." (See; State' s Reply,

pp . 6 )
~ ~~-~---~¢»'»'pia;e\~;§r,»»tge»'aisnyesaeto.;n‘e§*ras'~§a§iaa`~ta-»`add‘r'és"$»a§asas-aaaasaiut'§¢nal-»- ~ - ~ ~
trw ~_ -.qués£§c§rl§;¢é;ia%:and ifaé£..lrégai:a"ihd. addi£iéhéi; éiziaériéé. 1£11&£ lislb`e_ih"d fpfés`éh£éa:; 'f_“o'r'. 1 l l _ .~- -:

the first-time in this foregoing habeas corpus petition that was not presented on

direct appeal. This evidence creates an exception to the general rule that claims

raised and re1ected on direct appeal are not cognizable on habeas corpus} Ex parte

Schuessler, 846 S. W. 2d at 852(TEX.. Crim. App.1992); Ex parte Goodman, 816 S. W.2d

383, 385(Tex. Crim, App. 1991); EX parte Russell, 738 S. W. 2d 644, 646(Tex. Crim.App.

1986)

Habeas Court Memorandum / Findings

v _ In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

a

l pp; 1\.

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
court's finding that: ‘;___,_______,____’____ _, ________________ _

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding; pp.l).

`Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,_
because his claims now before the court are fundamental constitutional claims that
are based upon new theories.that were not presented on direct appeal. Ex parte Good-
man, 816 s.'w-,'zd 383, 385(Tex. `crim. App. -1991); m parte Russeii, 738 s.w.zav 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally _unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schuss£er, 846 S W.2d at 852
( Tex. Crim. App. 1992)(granting relief_ due to lack of 1ur1sd1ct10n), Ex parte Bussel ~~~~~
prior; conviction),kEx parte Bravo, -792- S.W.2d _____ 189(Tex Grim.App. 1982)(qranting:re11ef w
do to the improper excusal of a veniremamber): Ex parte Clark,- 597- S. W.2d 760(Tex. ~~~~~~~~~~~~~

 

Crim.App.1979)(granting relief due to the trial court's failure to apply the law to
the facts of the case). `

n Here, in applicant' s case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp. 4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as

required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of law, pp.14). `

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear_that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appea11 Consequently, the trial court's finding
that --"applicant' s Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal"-- must be overruled and the cause remanded back to

the trial court for a new trial.

`Idkewise, a review of applicant's second claim on direct appeal shows that he
argued that_his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review
'of applicant's fifth ground for review on his habeas corpus petition.shows that he
alleged that --"Detective Anderson Violated his due process right under the Fifth and
Fourteenth Amandment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incrdninating

statement against himself. (See: Applicant's Memorandum of Law, pp.17).

1n summary, after comparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes c1ear that
the claims are not the same because applicant is now presenting a constitutional issue

of fundamental error_ based upon a theory not _alleged on direct appeal Conse;uently, ______
v the trial court's finding that --"applicant's Miranda and due process grounds for fe-"'

 

lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the`alternative( applicant's cause should be

reversed and remanded for a new trial based upon grounds number four and five.`Applie

cant So Moves The Court.

Respectfully Submitted:
WJM&M
Matthew Cotten No. 1826716

Coffield Unit

2661 F.M. 2054
Tennessee Colony, Texas 75884
1n

Certificate Of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy of .this foreqoinq instrument has been Served upon Steven W. Conder, Assistant
District Attornev, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed On this;25th _

day of February, 2015.

Siqn= ijh€ttég¢g/'z%$é%&;~/

Matthew Cotten NO. 1826716

Applicant, Pro Se

 

 

11

writ Nc». c--432_\010373-1227020-A

Ex Parte In The 432nd Judicial
'_ District Court

Matthew Cotten

¢m,ioacoacoocoo

Tarrant County, Texas`

Applicant's Traverse To The Trial Court's Findings Of Facts
And Conclusion Of Law ` '

/

To The Honorable Court 0f Criminal Appeals:

Now Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion 0f Law" asking the
Court¢Qf Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support thereof will show this court the following:

»Grounds For Relief

 

j““alleging five constltutlonal vlolatlons during the course of his_ tr;ial court proceedlng.

- In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No.1227020D , is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227620D , is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he rwas denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d ), Texas Penal Code; thereby making his

thirty year sentence void.

l;;;M.,..…On"January,..¢l;~12015, Applicant flledwthls foregoino wrlt of habeas corpusw ~-;-m“»;-r»~"

h In ground number four, Applicant contends that Detective Anderson violated his .
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure. ’

In ground number five, Applicant contends that Detective Anderson violated his

 

"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement againstf himself.

Argument And Authorities

Ground Number One

{.

In ground number one, Applicant argued that his sentence of thirty years in
Cause No.1227020D is illegal because the”"Judgment Of Conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For Writ Of Habeas.Corpus
In addressin§_§¥§> 53 emer,eh`e`[_ theFl_i_e§i:i_e§_§‘_¢_t@rpey_:éieue@_,@h§§_r_e,l;i_ef,§h<_>l_l_lsi_

 

 

~~MW~~“Wbe?denied~simplyabecause'==$the~indictment"alleged'two'prior“felony“convictions?“a""“'*"
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for

'burglary of a habitation. The trial court found these prior convictions to be true.

Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty

year sentence is within the statutory range for a habitual felony offender. As such,

his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clain1 that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only

found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and~

R.R. Vol#Z, pp§ 109 through pp. 114).

V

_Applicant maintains that because the "Judgment of Conviction and the Reporter's
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and :the trial court found only one enhancement paragraph to be true (See:
R¢R. Vol#Z, p.109 through pp.114) there is no evidence contained within the record

to support the trial court's habitual offender finding. Therefore, the habeas court's

 

findings is not entitled to the presumption of correctness under 28 U.S.C.~§2254(e)(1);

Habeas Court Dkanorandum/ Findings

On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
decussion--"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp~l)-

4-iApf)]_~`i'c‘a"Iit''5§:'~'I!i~'air`é]':i`'.é*fe:'I-'i:i-4`» ?I'kié~ 'I‘i*-ia].i' Court'“sv»Find:iifg's'~- ~ 5 -~ ' `¥ ~ »5~~~"~`¥-'~:--1!1»-¥

m¢__“A.L:»pli_-<'.'_<’al'_ltshowerc:ontends`....that»~.the_,(_Zour`t.,_»of<»,»v»>~~C-r~i:mi“na_»].--»Appea-_ls»-sh_ou»ld»-I_i<.)t*~ad>o_L_)’c»,--~-»t-he~~-\-.»_,‘_-_-__

strial_court!swrecommendation~to~ground_number§one-based~upon~the»faet~that»the»trial ~~~~~~~~~

 

 

court's findings is contradicted by, the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of Conviction By Court and (R.R. Vol#2,pp.109 through pp.114).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court-found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a. review'ofthe punishment hearing shows _that the State

never presented any evidenceto support the enhancement allegations thereby making

' the trial court's Senteoce of thirty\years void. Moreover, the record shows that

_ the district attorney only asked the trial court to take iudical notice of the

presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement allegation/ the trial court illegally concluded:

PBased upon the foregoing evidence and the information that's been provided to

--¢=~.¢;~{-_§~y
”..Tr,- 1 :
5

..~`»}'< \
c

the court and your admisslon, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styleddthe@*'
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby

sentences you to 30 years in the Institutional Division of the Texas Department of

 

”`”"* "`mai“"‘"?]t@t"fce. 111 LHUSE“`NO_._ 122/111, theCourt nereDy S€n‘b€nUE'S"YO`lI‘tO 20 ye‘a’r'_S ~

` shows that at thé'f"'

in the Institutional Division of the Texas Department of Criminal Justice." (R.R.

Vol#3,pp.86,line 18 through pp;87,line1-7).

Section 12.42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508,
511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish-
ment can not be legally enhanced. Cole V. State, 611 S.W.2d,79, 80(Tex. Crim. App.
1981),- Mizeli v. state, 119 s.w.3d at aoe(Tex. App. 2006); Jordan v. state, 256 -
s.-w.~3df»290, 2-9~3(»1-9><.€`:1111. App'. 2008). ' ' ` '
»~~_~~-~Her"e,l1n~app11cant»Lc case nowebefore~the~~Court of Cr1m1nal Appeals»theerecord - ¥:1'
" hearlng the State on1y asked the court to take _iu§1g1'a1;;;;::;::

 

notice of the presentence investigation report which did not contain. any evidence
of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled nand applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three

In ground number 'two, applicant argued that his sentence of thirty years is
void because_the State presented "no eviden:e to support the enhancement allegations
reguired by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

`\ In ground number three, Applicant argues`that he was denied due process and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d), Texas Penal Code;-thereby making his

.thirty year sentence void{

zu;é===¥§§§"` "*"Y=TE=P§ET£TUHZFUT°WFTE“OE‘Hab§§§°€&rpus

In addressing grounds two and three, the district attorney argued that relief

should be denied because: \

"The record herein is not totally devoid of evidentiary support_for enhancing

the applicant's sentencing range." (See;_gtatels Reply,pp,§),

Mbre specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
judicial_confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
thehappearancé,confrontation and cross-examination of witnesses, and consented to oral
and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional

1o11questionsgof;law;and:fact;regardingiapplicantlsiclaimithatrthexState;presented;!no;11_n"“1;;

m`"wdevidence""t°WSuPP°rt*the“eSSe§P§??§SISD€E§§:?YlFif§EE§§HS?T??F§P§F§S§§RY§§§;E?ZE§F§§;:_-11

by Section 12.42(d)y Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-

 

tution. (State's Reply/ pp.5-6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross- n
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or`whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a criminal; offense

l be convicted upon his plea without sufficient evidence to support the same. Article
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.Zd at 483; Thompson V. Louisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-

tigation report is inadmissible as proof of a final conviction where the P S I. report
1 did not contain certified copies of prior iudgment of convictions against the appli-

cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
' ~heMsidened£aaeyademe;meneamexnlea_d&beimeMnamess;amml
must introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at
368; tx parte Rich, 194 s.w.zd at.513. 4 ‘

  
 

Here, in applicant's case novlbefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
l examination of witnesses, and consented to oral and written stipulations of

evidence. (See: State's Reply, pp.5).

-..§l!;seil§_li_l§§i;<>n,; the lié§§>i.’§§ ;C;L§E§lrf'.l`§'_` ;$T;l§\.§$ § that: th§€i .§ialté ;@ér.i.i §§ ?irilli.`<§éf.l§l <_i§l:e`. 1 ,`_ _ `_ '.` -

process aid due course of law when the district attorney presented "no evidence"

at trial to support the enhancement allegations as required by Section 12$42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essential elements of the enhance-

' ment allegations true beyond a reasonable doubt.

Habeas Courtb£mxuandum / Findings

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.

The Court recommends that.grounds for relief be denied. (See: Memorandum / Findings,

Ypp; 1).

Applicant's Traverse Tp The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
,evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his iudicial confession standing alone is not enough
to support proof of a final ~¢onviction, where the P.S.I. report did not contain
lcertified copies of prior iudgment of convictions against him. See:‘Garcia V. State,
930 s.w.zd 621, 623(Tex.'App. 1996); Ex parte Brown, 757 s.w.zd at 368; Ex parté
Rich, 194 S.W.3d at 513. l . "

The Texas Court of Criminal Appeals have long held that in all criminal prosecu-
_tions regardless of the plea or whether the punishment is assessed by the judge or
4 the iury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
'Criminal Procedure} Stone V. State, 919 S. W.2d 424. 426(Tex. Crim. App§ 1996); Messer
V. State, 729 S. W.2d 694, 698(Tex. Crim App. 1986).LIkew1se, allegatlons of prlor _
convictions contained within the presentence investigation report is inadmissible as

,proof_ of a final convictlon, where the P. S I report did not containpcertified copies

_9f_ prior iudgments of__ convictions_ against the applicant. Garcia, 930 S. W.2d at 623. ..........

 

In summary, the State must introduce a copy of each iudgment of conviction, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell

v. state, 228 s.w.3d 343 at 346;-Ex parte Rich, 194 s.w.3d at 513.

6 Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,pp.114, line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence"- of prior convictions contained within the P.S.I. report. IThus, based _
upon the record¢ no rational trier of fact could have found the enhancement allegations‘
true beyond a reasonable'd_oubt.l In conclusion, the recommendation of the trial »court v
must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

_ In ground number four and five, Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State\Constitution when he failed to read the full "Miranda Warning" to him as required
__~by_"""_* '_p&"~Ei~'cIe“-BB‘*-Z€~§“% ”.* "(~a'%‘(‘~'z“)`,~'“'fe`_'xas~€ode“- ‘j°;ir“tr'llri'l;al'"'rrLzLe-=dare. `

 

 

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Constitu¢
tion when he threatend .physical harm to him and his property in order to coerce him

to give a self-jncriminating statement against himself.

State's Reply To Petition For writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

FThe applicant's Miranda and due process grounds for relief are not cognizable
»Mbecause.these.same complaints were re1ected on direct appeal." (See; State!s Reply,

pp.6).

~ Howeverthedlsmctattomeyhasfa ledtoaddressappllcantS»~c@nstltutlonal » »~
-,;§§[. ;§.;qliéé£'i'c§£§:$§;`i£i};éhal ._fa'c‘t`§ ` édér&indl.éaai?¢i`c§r{a`i levi déii:`€=_{ that Eé,§péih&f_.pré`s'ér{£é§_;fbi ;§;,1§'_`_`;1
the first time in this foregoing habeas corpus petition that was not presented on
direct appealt This evidence creates an exception to the general rule that claims`
raised and re1ected on direct appeal are not cognizable on habeas corpus. EX parte
Schuessler, 846 S.W.2d atn852(TEx; Crim. App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. Crim, App, 1991); EX parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App.

1986).
Habeas\Court Memorandum / Findings

_In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse Tb The Trial Court's Findings>

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
court's finding that: ___*___ ` _,__ ` ___*_____-_______~

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that
are based upon newltheories that were not presented on direct appeal. EX parte Good~
nen, 816 SFW;Zd 383, 385(Tex. Crim. App.-1991); EX parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); EX parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law '
is clear, although habeas corpus is traditionally .unavailable to review matters'which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussier, 846 S. W.2d at 852
(Tex. Crim. App. 1992)(granting relief due to lack of iurisdiction); EX parte Russell,
738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void

r.prior,convictlon),_Ex parte Bravo, 702:S W.2d 189(Tex Crim App. 1982)(qrant1ng;re11ef“_A_ _

do to the improper excusal of a veniremamber): Ex vpa"rte Clark, 597 S. W.2d 760(Tex.'~~--~-~~-*»

 

Crim.App.1979)(granting relief due to the trial court's failure to apply the law to
the facts of the case).

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp. 4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective>Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warnin " to him as
required by Article 38:22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of law, pp.14). `

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal"-- must be overruled and the cause remanded back to

 

the trial court for a new trial.

'Idkewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp. 5). However, a review
of applicant's fifth ground for review on his habeas corpus petition shows that he
alleged that --"Detective Anderson violated his due process right under the Fifth and v
Fourteenth Amendment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incriminating

statement against himself. (See: Applicant's Memorandum of Law, pp.l?).

»111 99919¢1'_19;£19; 9999911~';1_99 applicant'$ qrou_nd~nu@er five in his habeas Corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that
the claims 1are not the1 same because applicant is now presenting a constitutional issue

h._of. fundamental error based upon a theory not alleged on direct appeal. Consequently,

*TW~&* the trial court' s finding that --"applicant's Miranda and due process grounds for re-

 

 

lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant' s cause should be

reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Moves The Court.

Respectfully Submitted:
Matthew Cotten No. 1826716

Coffield Unit

2661 F. M. 2054
Tennessee Colony, Texas 75884
10

Certificate Of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy_of this foregoing instrument has been served upon Steven W. Conder, Assistant

DYLLi£t Att°£n@'>" 401 W~ B£,l_knap, Fort worth, Tean 76196-0201. executed an this 25thwm_
day of February, 2015. ' " . _

SiQ'Il! WVAW/ &ZZE\_/
Matthew Cotten No. 1826716

Applicant, Pro se

ll

 

'_-wri_t No. c-4,32_`~‘_0_10;374-1`227021-A;

   

 
 
 

m me 432nd__.nmpiai ;

  
   

District court

In ground nuber one, applicant contends that his sentence of thirty years in Cause
No. 1227021D ,_ i§ illegal because the "Judgment of Conviction By Court" and the
"Reoord At Trial" shows that the trial court found only one ermanowent paragraph
true; thereby making his punishment excessive.

l.

m ground nwhert\u;, applicant contends that his sentence of thirty years in Cause
No. 12276_21]). , i§ void because the State presented "No Evidence" t`o support the '
whanowent paragraphs alleged in the indictment, as required by Section 12. 42(d),
Texas Penal Code§ thereby denying him due process under the State and Federal Och-
stitution. A ry §;?.

. '?Se».'-\>' ." \

In grand maher three, Applicant contends that he was denied due process and

due course of l§w when the State presented "no evidence" to support the enhancement

allegations as required by Section 12 42(d), Texas Penal Code; thereby making his
thirty year sentence void.

' »

q

In ground nwber four, Applicant contends that Deteotive Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38 28§ 3(a)(2),
Texas Code of Criminal Procedure.

?".r:-' .
In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating n
statement against himself. "

  

-' " § Argwent And Authorities
Ground Numberg O`ne -5; 1

In ground nmnber one, applicant argued that his sentence of thlrty years in
Cause No._ 1222336D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-
graph true, thereby making his punishment excessive.

state's Repiy 1§9¢;1-.1§1¢;1 ear writ of Habeas corpus

In4 addressing ground number one, the district attorney argued that` relief should:_'.`
be denied simply because -"_'the indictment alleged two prior felony convictions a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not exeessive." (See; State's Reply 'Ib Petition For writ Cf Habeas 4
Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction iBy Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the V’,hab,itual `
offender allegations. (See: Judgment Of Conviction By Court, Appendix No. .1-5, and
R.R. vo1#2, pp. "109 through pp. 114). '

App11cant maintains that because the "Judgment or Conviction and the Reporter'e
Record" at trial shows tha't applicant plead "True" only once during the entire course
of tr1a1_, and the trial court found only one enhath paragraph to be true (See:
R.R. vol#Z¢pp.lOQ through pp.lld) there le no evidence contained within the record
to support the tr1e1 court's habitual offender finding. Therefore, the holman court'e
findinge le not ent1tlad to the preemption of correctness under 28 U.S.C.i§Z_?S#(e)(l).

mmcourtimndmv?indinge

v On February 2, 2015, the habeas court induce 1t'e"iiemrand1m / Findinge" adopt1ng
the district attorney_° o interpertation of the events on all five constitutional claim
without addreaaeng applicant's questions of law and facts _ "

In addressing ground nminer one, the trial court simply stated without any
decuaeion--"'lhe court finds that the applicant's thirty year sentence is not emmaaiva.
The court recommends that this ground for relief be denied." (See: mirandqu / Findinge,
pp.l). ~,` ` ‘ 1 \ v , . t .

Applicant'o Travm 1b The Trial court's Findings

Applicant now contends that the Court of Criminal Appeale should not adopt the
trial court's remendation to ground amber one based upon the fact that the trial
court's findings le contradicted nw the record of evidence at trial which shows
that the trial court only found one enhancment paragraph to be true. (See: Judg-

- mut of Conviction .By Court and§,.('R.R. Vol#Z,pp.wQ through pp.lld).

A review of the "Judgment of Conviction By `Gourt" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of €onvictionBy Court-waiver of
JUry Trial"). Likewise, a review ortho punishment hearing above that the State
never presented anyghr evidenceto support the enhancement allegations thereby making
the trial court's sentence of thirty years void. iioreover, the record above that
the district attorney only asked the trial court to take judicial notice of the
presentence investigation report and then rested. (R.R. Vol#B,Pp-?, iine 6 through
pp.8, line 1_-15). Nevertheleee, without any evidence beingpresented at trial to
support the enhancement allegation, the trial court illemlly concludede

'E>\Baaed upon the foregoing evidence and the information that's been pro\{1ded to

3

the court and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 12271_11, all respectively st`yled the
State of Texas _;versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby
sentences you to 39 years in. the Institutional Division of the Texas Departnent of
Crimina1 Justice. In Cause No. 1'227111, theCourt hereby sentences you to 20 years
in the Institutional 9ivision of the Texas Department of Criminal Justice.'§ (9.R.
Vol#3,pp.86,line 18 through pp.87,_line1-7)

 

e,_<-w»' ;-

Section 12. 42(d), Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as _a habitual offender. Ex Parte Rich, 194 S W. 3d 508, :j;:"ii'"!
511(Tex Crim. App.2006) IN explaining how Section 12 42(d) operates, the Court of
“Criminal Appeals have consistently held that the State must present evidence whish»
supports the enhancement allegations contained in the indictment. This is because, if

  

the proof at trial fails to correspond with the enhancement allegations, the punish-

ment can not be legally enhanced. cole v. state, 611 s.w.zd 79, ao(Te¢'. cirim. App.. ?"'
1981); Mizell V. State, 119 S W.3d at 806_('I_“ex. App. 2006),- Jordan V. ,State, 256
s.w.ad `_290,` 293('1~@¢ crim. App. 20081. ' ' ' ` ~ 35 '
"Here, in applicant's case now before the Court of Criminal Appeals the record
shows that at the- “&`, ` hearing the State only asked the court to teke judicial
notice of the presentence investigation report which did not sontainf.. any evidence
of any prior felony sonvictions. (R.R. ; V01#3,pp.7, line 6 through pp.8, line 1-15)
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fast could have found
the enhancement allegations true beyond a reasonable doubt In conclusion, the '
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

   

In ground number two, applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations

required by Section 12. 42(d), Texas Penal Code, thereby denying him due process
under the State and Federal Constitution.

In ground number three, Applicant argues that he was denied due process and
due course of 1aw when the State presented "no evidence" to support the enhancement
allegations as required by Section 12 42 (d), Texas Penal Code,- thereby making his
thirty year sentence void. -

‘. ~j~.`,*~r,»~:t 4

state's_ memy 1b Petit;m nor Writ of repose corpus ` g

 

should be denied because-

     

"’l‘he record herein 1s not totally devoid of evidentiary support for enh ing

the\ applicant's sentencing range." (See, State 5 Reply,pp,§) §_;E §§ , § 51 §§
.:; ,K`~s .' . ,_,_\ § '.., _
More specifically, the district attorney argues that there 1a some evidence

to support the enhancement allegations based upon (1) "'I_‘he_ applicant entered a _»,
judicial confession admitting to all of the allegations in the indictment, including
the enhancement andv habitual allegations; and (2) "The applicant waived"*his right to
the: appearnce, confrontation and cross-examination of witnesses, and consented to ora1
and written stipulations of evidence." (State's Reply, pp.5). z ;-f. j '

L; ;.» `.‘~ r . . _ .":r’ , ~ = '€
;# ~,.:- » <' ~ ,. ‘ .~ .

  

r_` ;§__§~,-._.“ _ -'. ._=_.*:,_

 

Hoxsn=:ver,»1 the district attorney failed to address applicant's constitutional
questions of law and fact regarding applicant's claim that the State presented "no
evidence" to support _the essential elements of the enhancement paragraph as regizired
by Section 12.42(d)`, 'Iuras Penal Code; Article 1 15, Texas Qode of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-:-

tution. (State' s Reply, pp.S~G)

§ Applicant mintains that proof of prior felony convictions regoires more_` than (1)
applicant's judicial confession admitting to all of the allegations in the indictment,
and (2) applicant' s waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is bmause the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the judge or the jury, in no event shall a person charged with a criminal§ offense
be convicted upon his plea without sufficient evidence to support the same. Articl;e
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 ('I’e:r.
crim. App. 1996); Messer v. state, 729 s.w.zd 694,698(1ex.cr1m.1\pp.1986);. stokes pv.
Procunier, 744 F.Zd at 483; Thcropson V. flouisville} 362 U.S. 199, 80 S.C‘l‘.'l 62§(1978).[

/

`{(~

Furthermore, proof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
did not contain certified co§ies of prior judgment of' convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex. Crim. App.1996). Likewise, in_ order for
a stipulation to be considered as evidence where the plea is before the court, the state
must introduce a copy of the judgment and sentence in each case for enhancement purpose
See: Messer, 729 S.w.Zd at 698; Stone, 919 S.w.Zd at 426; Bx parte Brown, 757 S.w.Zd at
368; m parte Rich, 194 S.w.Zd at 513. ' '~ ~ 4

Here, in applicant's case now before the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the
enhancing of applicant's punishment at trial are: _ ‘ ’

*The applicant entered a judicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations '_

*The applicant:`!i`waived his right to the appearance, confrontation and cross-
exai\ination of witnesses, and consented to oral and written stipulations of
evidence. (See; State's Reply, pp.5). ' '

In conclusion, the record clearly shows that the State denied applicant due
process and due confess of law when the district attorney presented "no evidence" `
at trial to support the enhancement allegations as required by Section 12.42(d),
Tecas penal code miele 1.15, rees code of criminal Procedure. and the Fifth
and Fourteenth“Amendment of the lxiln:lted States Constitution. Consequently, no
rational trier of fact could have found the essentia\ almonte of the enhance-
ment allegations true beyond a reasonable doubt.

mbeasoourtumorand\m/Findings

In addressing ground number two and three, the trial court erred in stating a
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status. )
The Court recommds that grounds for relief be denied. (See; Hemorandmn / Findings,

ppc 1).

Appiioarlt's Traverse "ro 'nle_ mai court's Findings

Applicant now contends that the Court of Criminal Appeals should not ado§t the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's judicial confession (standing alone) provides some
evidence supporting the enhancement of his sentencing range to habitual offender
, status." Applith maintains that his judicial confession standing alone is not enough
to support proof of a final conviction, where the P.S.I. report did not contain `~_
certified copies of prior judgment of convictions against him. See: Garc\e v_. State,
930 s.w.zd 621`, 623(Tex App. 1995); ax parte Brown, 757 s.w.2d at 360; F.x parte 1 4
Rich, 194 s. w.3a a_\~,§ 513. 9 1 v y

 

The Te`xa§ Court of Criminal Appeals have long held that in all criminal presecu-:
tions regardless of the p1e§ or whether the punisl'ment is assessed by the judge or
the jury, in `no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article _1. 15, Texas Code of
Criminal Procedure; Stone V`. State, 919 S.W.2d 424. 426('I'ex._ Crim. App.11996); Messer
V. State, 729 S.W.2d 694, 698(Tel'c.Crim.App.1986).I.Ikewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies

v of prior judgments of convictions against the applicant. Garcia, 930 S.W. 2d at 623. "
In slmmary, the State must introduce a copy of each judgment of conviction, in each
case used for enhancement purpose. See: Section 12. 42(d), Texas Penal Code; Terrell
V. State, 228 S.w. 3d 843_ at 846; Ex parte Rich, 194 S.W.3d at 513. _

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp. 114, line
16-21) and (R.R. Vo_l#$,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence" of prior convictions contained within the P.S.I. report. 1 iqhus, based
upon the record, no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
must be overruled and applicant's case remanded back to the trial court for a new
punishment hearing. "

. men t :

. 1 §§ n . _ '
emmammesrrour elusive , ,`
g fn ground number four and five, Appli dant argued that Datective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State Constitution when he failed to read the full "Miranda Warning" to h1m as required

by Article 38;22 § 3(a)(2), dens Code of Criminal Proceedure.

v __ In ground number five, Applicant arg; ed that Detective Andarson violated his due
' process right under the fifth and fourteenth amendment of the Im1ted States Constitu-
tion when ha threatande» physical harm to him and his property 1n order _to pearce him
to give _a self- incriminating statement against himself. _ 5 . "," §

' ," l x .
, ' ‘ }_ il l

state"s<-nspiyl"re; manion For writer levees ooqu

In addressing ground nlnnber four and five, the district attorney argued that ` _'
" relief should ha denied because: v . . ., _ :` §__

‘ "The applicant's :Miranda and due process grounds for relief are not cognizable '~ ',
because these sama complaints were rejected on direct appeal." (See; _Stata's Reply,
pp-G) ' ‘~ ~ ‘

.`¢

_ However, the district attorney has failed to address applicant's constitutional .
questions of law_ and fact regarding additional evidence that is being presented_jj for
the first time in this foregoing habeas corpus petition that was not presented on`
direct appaal. ‘I_'his_ evidence creates an exception te the general rule that claims
raised and rejected on direct appeal are not cognizable on habeas corpus. Eli parte
Schuessler, 846 S.W.2d at 852('1'Ex. Crim. App.1992); Ex parte Goodman', 816 S.W.2d

383, 385('1'e_x.Crim, App. 1991); Ex parte Russell, 738 S.W.2d 644, 646(T,ex._Cr1m.App.
1986) if .~ _ `_ ` _’

In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are
not cognizable because they were litigated en direct appeal." (Sae_l_ liemorandlml/Finding,

pp’ 1). _ n ;- ?j 5

§ .l ~ ' \ »"l
,. .

Applicant's Traverse 'ro 'l'he ‘l’rial Court's Findings

Applicant now contends that the Court of Criminal hppeals should not adopt the
trial court's reconmendation that ground four and five be denied based upon the trial
court's finding that: ' . ;`

"applicant's Miranda and due process grounds for relief are not cognizable because

they versilitigated on direct appeal." (See: Memorandum / Finding, pp.l~).

Applicant maintains that his claims presented in ground numbers four and five j
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claim nos before the court are fundamental constiti'ltional claims that
are based upon new theories that were not presented on direct appeal. Ex parte Good~
l'xlnal‘x, 816 S,H 2d 383, 385(Tex. Crim. App. 1991); Ex parte Russell,_ 738 S.i'_l.2d §44('I’ex
Crim. App.1986); Ex parte Schuessler, 845 S.W.2d at 852('Dax Crim. App. 1992). 'l-‘he law
is clear, although hmas corpus is traditionally unavailable to review matters which
were raised and rejected on appeal, claire involving jurisdictional defects or invoking
f\mdmental constitutional rights may be raised. Ex parte Schuss_\_'-er, 846 S__.w.2d at 852
('Dex. Crim. App. 1992)(granting relief due to lack of jurisdiction); Ex parte Russell,
738 S.W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.w.Zd 189('1'90¢ Crim.App. 1982)(granting relief
do to the improper excusal of a veniramber)s mr parte Clark, 597 S.W.2d 760(Tex
crlm.zlpp.1979)(grantlng relief due to the trial court's failure to apply the law co '
the facts of the case). \

‘ ' Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court o_£ Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
wranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memrand\m
of law, pp. 14).

 

After canparing §pplicant's ground number four in his habeas corpus petition to
applicant's claim number i.}nne on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory _not_ alleged on direct appeal. Consequently, the trial court's finding _,
that-- --"applicant' s Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause remanded back to
the trial court for a new trial. ‘

5".~ § : '.
.~€ _ ` ; ' ‘ ' »‘-’ §§ '=
‘;L; §§ ‘. _'» \ .é

Likewise, a review of applicant's second claim on direct appeal shows that he _
argued that his waiver of his statutory rights was not knowingly, intelligently, and "“`
voluntarily made§ (See: opinion of the Eight Court of Appeals, pp.5). However, a review
" 'of applicant's fifth ground for review on his habeas corpus petition showsiv that he
allaged that "Detective Anderson violated his due process right under th" Fifth and§
Fourteenth Amandment 6f the United States Constitution when he threatened physical '
abuse to applicant and his property in order to coerce him to give a self»incriminating
statement against hicself. (Seer Applicant's Memorandum of law§ pp.17) §§‘ "ff_` ‘

.rl
\

 

; '*’~

ln' smcnary after canparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it because clear that x
the claims are not the same because applicant is now presenting a constitutional issue
of‘fundamental error based upon a theory not alleged on direct-f appeal. Conse@uently, .
` the trial court's finding that --"applicant's Miranda and due process grounds for re-
w ‘lief are not cognizable because they were litigated on direct appeal"-nmst be over- "
ruled and the case remanded back to the trial court for a néw trial. "
“ conclusion
In conclusion, the findings of fact and conclusion of law recanmended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the altemative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-
cant So Moves Tha Court.

Respecr~.f'uny sumir~.eed=

§§¥H§i’dc§§i€“ N°- 1826715 o

_ ' ' 2661 F.rr. 2054
Tennessee Colony, Texas 75884

10

”"" " certificate Of Serv:loe

     

I, Matthew Cotten, Applicant, Pro se, do hereby certify that true grid correct

¢'\¢Z-

copy of this foregoing instrument has been served upon Steven W. Conder, Aesistant
District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th

day of February, 2015. » _ ' . § ._ .

 

   

 

   

 

Matthew cowen No.’- 1»826716"_ _‘- m
: 1 ` ' ~ ’ Applicant, Pro ' ` " w §
§§ j 1-.1_ 1 -'.§

. l ;;`I vi z_d ny
:»:., 1

§§

11

 

,.~.writ No. c-432-Co16'375"-§1-2271'1..'1;A .
m Parte " m me 432nd societal

maurice own

 

 

'iarrant munty,._ ‘rmras'

§3. 4 w ` z ` 1
On January 4, 2015, Applth filed this foregoing writ of homes corpus § - '

alleging;: five constitutional mrblations during the course of his trial court praceeding.

’ `

In ground huber m3 5991ioant contends that his sentence of twentyf Years in Cause
No. 1227111D , is iiiegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhanowent` paragraph
true; thereby making his punishment excessive.

In ground timber tr`n>, Applicant contends that his sentence of thirty years in Cause
No. ‘1.227111D . is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required hy Section 12.42(d),4
Texas penal Code, thereby denying him due process under the Stat”e:and Federal Con-
stitution.

In gro\md maher three, Applicant contends that he was denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d), Texas Penal Code; thereby making his
thirty year sentence void.

In ground -nul§aer faur, Applicant contends that Datective Anderson violated his-
"Miranda Right" guaranteed to' him by the Fifth and Fourteenth Amendment,"z;`uhen he
failed to read the full "Miranda warning" as required by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure. .v

In ground timber 111¢9, Applicant contends that Detective Anderson violated hi:e "
"Due Frocess Ri';.y;ht'!n under the Fifth and Fourteenth mendmant, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminat1ng
statement against himself.

._4~ act

 

mm And Autvoritiee * z f
Ground Nmuber One ;

In ground number one, Applicant argued that his "§entenc_e of twenty, years in
Cause No. 1227111D is illegal because the""Judgment cf conviction By court" and
the "Record At Trial" shows that the trial court found only one enhancement para»
graph true, thereby making his punishment emessive.

state-enemy ns reviews nor writ or Habeas corpus

In addressing ground number one, the district attorney argued that relief should
be denied simply because -»-"the indictment alleged two prior felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 199'7 conviction for 4
, burglary of a habitation. The trial court found these prior convictions to be true.
' 5 Thus, the applicant qualifies as a habitual felony offender. The applicant's twenty
id year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive.” (See; State's Reply To Petition For writ Of habeas
Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction `By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only

found one enhancwe`nt paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Oi’ Conviction By Court, Appendix No. 1-5, and

R.R. Vol#2, pp. 109 through pp. 114).

   

Applicant maintains that because the "Judgment of Convictionm and the Reporter' 's § §
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#2,‘pp.109 through pp.114) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's
findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1).

.;- xiv-q

mheascourtumnrandm/Findings

0n February 2,:§? 2015, the habeas court issues it's "Mem_orandum / Findings" adopting

the district attorney s interpertation of the events on all five constitutional claims
without addresssng applicant's questions of law and facts " '

f` '¢'E

In addressing ground number one, the trial court simply stated without any
decussion-~"’I_he Court finds that the applicant's thirty year sentence is not excessive.
The court recmmends that this ground for relief he denied." (See: Memorandum / Findinge,
pp.l). ' ~ _§,5" ":; ' 4 .. ~._';.;\l; ` '_ . -;'- '.' '

‘)

 

\Applicant's Traverse ‘Ib The Trial Gourt's Findings

-¢'

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recomnendation to ground nmnber one based upon the fact that the trial
court's findings is contradicted by the record of evidence at trial which showe
that the trial lcourt only found one enhancement paragraph to be true. (See. Judg-
mens of convictipn 'By; court anal.-;('R.n. voi#z,pp.log through pp.114); '

A review of the '_'Judgment of Conviction By court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a revieon the punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentence of twenty years void. lmreover, the record showe that
the district attorney only asked the trial court to take judical notice of the k
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented a_t trial to
support the enhancement allegation, the trial court illegally concluded:

'i§‘Based Won the foregoing evidence and the information that's heeii provided'to

3

the court and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the
State of Texas versus Matthew C. witten.'rhe respective enhancements are also found
to he true. In the cause nmbets, with the exception of 1227111, the Court hereby
sentences you to 30 years in the Institutional Division of the wise Department of
Criminal~.justice. In muse No. 1227111, theCourt hereby sentences you to` 20 years
in the I_nstitutional Division of the Texas Department of Criminal Justica.'_' (R.R.
Vol#?,pp.&€,line 18 through pp.87¢1ineI-7)

Section 12 42(d), Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior lfelony offenses
inorder to sentence anyone as a habitual offend§r. Ex Parts Rich, 194 S.W.3d 808,
511('1"ex Crim. App.20_06). m explaining how Section 12.42(d) operates, the Court of
Criminal Appsa_ls have consistently held that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because i§
the proo§ at trial fails to correspond with the enhanoonant allegations,` the punish-_-
mt can not vs ieg§iiy enhances cort v. st§§e. 611 s.w.za 79, a’o<'r§x. crim__. zipp. `
1981), Mizell V. E`§tata, 119 S.W.BG at BCS(Tsic; App. 2006); Jordan V. 8tate, 256
S.Ci¥.$d 290, 293(Talc. Crim. App. 2008). ~ ‘

Here, in applicant's case now before the Court of Criminal Appeals the record
,.":', ‘_'_,-__hearing the State only asked the court to take judicial

notice of the presentence investigation report which did not containc;jj, any evidence
of any prior felony convictions (R.R. " 1 Voi#§,pp.?, line 6 through pp.8, line 1-15)¢
Thus, the record clearly shows that the State presented no evidence to suwo,rt the
exuiancemen_t allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside
and rsnanded back tothe trial court for a new punis?rment hearing.

 

In ground number two, applicant argued that his sentence of twenty years is
void because the State presented “no evidence to support the enhancment allegations §
required by Section 12. 42(d), Texas penal Code, thereby denying him due process
under the State and Fedsral Ormstitution. ' ' ' h

In ground number three, Applicant argues that ha was denied due(.-;.{f proceée and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d)`, 'Baxae meal Code; thereby making his
twenty;` year sentence void. 4

State’e- Reply To` Pe_titim For Writ of ms corpus

In addressing grounds two and three, the district attorney argued that relief
should be eenlee because: ` ' . ... :~. .

"The remrd€ herein le not totally devoid of evidentiary support for enhancing
the applicant's sentencing range.” (see¢ state‘e Reply,'.pp.§) § n `
lmra specifically, the district attorney argues that there le some evidence
to support the enhancemnt allegations based upon (1) "The applicant entered a _,

judicial confession admitting to all of the allegations in the indictment, including
thez-_ appearance, confrontation and cross-examination of witnesses, and consented to ora1
and written stipulations of evidence." (State's Reply, pp.5). ` _,;:- '

However,' the §iatrict attorney failed to address applicant's constitutional
questione of law and fact regarding applicant's claim that the State presented "no
evidence" to support the eesential elements of the enhancement paragraph as required
by Section 12 42(<3), Texas Penal Code; Article 1 15, Texas Code of Criminal Procedure;
and due process trader the Fifth and Fourteenth Anendment of the United States Consti-
tution. (State's Reply, pp.S-S).

Applicant maintains that proof of prior felony convictions requires more than (1) 4
applicant's judicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts h"ave long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the judge or the jury, in no count shall a person charged with a criminally offense-
be convicted upon hie`.plea without sufficient evidence to support the same. Arti€l)e
1.15, rees code of criminal Procedure; stone v. state 919 s.w.ze 424. 42`6 (!re¢.
crim. App. 1995).} cgeeeer v.` scate, 729 s.w.za sge,ssa(m.crm.zxpp.was): stokes v.
Procunier, 744 F.Zd at 483; 'lhompson V. louisville, 362 U.S. 199, 8¢)'$.€’1‘..l 624(1$78.).

Furthermor§, §roof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P.S.1. report
did not contain certified copies of prior judgment of convictions against the appli-
cant. Gar¢ia V. State, 930 S..w.Zd 621, 623(Tex. Crim. App 1996) Likewise, in{: order for
a stipulation ~»to: be:;iv cnnsidered as evidence where the plea is before the court, the state
must introduce a copy of the judgment and sentence in each case for enhanth purpose
See: Messer, 729 S.W.2d at 698; Stone, 919 S.w.Zd at 426; Ex parte Brown, 757 S W.2d at

. _"l,.

368; Ex parte Rich, 194 S WZd at 513. 4 j:_; _?

 

 

»;§\ , - .»,
. .

Here, in applicant's case now before the Court of Criminal A§peals the record
. shows that the district attorney admitted that the only evidence supporting the § _:
enhancing of applicant's puziishment at trial area " ‘ """ "
*_'Ihe applicant entered a judicial confession admitting to all _of the allegations
in the indictment, including the enhancement and habitual allegations,

,_ <'.

*The applicant waived his right to the appearance, confrontation and cross-

»»»»»

evidence. (See; State's Reply, pp.5).

In conclusion, the record clearly shows that the State denied applith due
process and due coui*se of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12 42(d),
Texas Penal Code; Article 1 15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth: Amendment of the United States Constitution. Consequently, no
rational trier- of fact could have found the essenti;i'\ elements of the enhance-'
ment allegations true beyond a reasonable doubt.

In addressing ground number two and three, the trial court erred in stating s
"The Court finds that the applicant's judicial confession provides some evidence

supporting the enhancement of his sentencing range to habitual offender status.
The Court reccnmends that gr6unds for relief be denied. (See: Memorande / Findings,

pp. 1)

Applicant's Traverse ~'m The Trial court's Findings

Applicant now contends that the vCourt of Criminal Appeals should not adept the
trial court's recenmondation that ground two and three be denied based upon the trial
court's finding thet--"applicant's judicial confession (standing alone) provides some
evidence supporting the enhancement of his sentencing range to habitual offender
status.” Applicant maintains that his judicial confession standing alone is not enough._'
to support proof of a final tondction, where the P.S.I. report did not contain _
certified copies of prior judgment of convictions against him. See: Garcia §. State,
930 S.W.2d 621, 623(m App. 1996); E:_c parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S. W.3d at 513.

The 'I‘euca_s Court of Criininal appeals have long held that in all criminal presecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the jury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Articlo 1 15, Texas Code of
Criminal Procedure; Stone V. State, 919 S.w.Zd 424. 426('I'ex. C_'rim. App. 1995); Messer
v. seate, 729 s.w.za 694, ega(mx. crim.App. _1936). Likewise, auegations or prior '
convictions contained within the presentence investigation report_is inamissible as '.
proof of""a final conviction} where the P.S.I. report did not contain certified copies
of prior judgments of convictions against the applicant._ Garcia, 930 S.W. 2d at 623.
In summary, the State must introduce a copy of each judgment of conviction, in each
case used for exu\ancmuent purpose. See: Section 12 42(d), Texas Penal codes Terrell
V. State, 228 S.W. 3d 343 at 346; Ex parte Rich, 194 S.w.Bd at 513._

Here, in applicant's case ncuh_e_foro the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any evidonco of a judgment of prior conviction, (Seez R.R. vol#2,pp.11\`i;'4, line
§16-21) and (R.R. Vol#d,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence" of prior convictions contained -vithin the P.S.I. report.»f'§§'!f‘hus, based
upon the record, no rational trier 'o_f_ fact couldhave found the enhancement allegations
true beyond a reasonable"`doubt. In_ conclusion, thereconmendation of the trial court
must be overruled and` applicant's case remanded back to the trial court for a nev `
punishment hearing.

ne . j

Grolmd NmbveerrAndFive '

In;ground_ number four and five, Appliéant argued that _Detective Anderson" violated
me Miranda night guaranteed tn him by the fifth and fourteenth amendment of the xmitea '
State Constitution when he failed to reed the full "Miranda Narning`" to him as required
by Ar§ic_le 38.22 § 3(a)(2), Tm¢as Code of Criminal Proceedure. _ ~ » g ‘

- In ground number five, Applicant amued that Detective Anderson violated his due
process right under the fifth and fourteenth amendmnt of the United States Constitu-
tion when he threatend physical harm to him and his property in order §o coerce him
to give a self-»lncriminating statement against himself. '

. ds\».ate'¢=,¢ nepiy,:mpetitijmrormt.ofaabeae corpus 1

_ I_n addressing ground number four and five, _§hs d1s§rict attorney argued that
relief should he denied because: ` ~ ~ »

"The applicant's mran`da and due process grounds for relief are not cognizable
becausel these same cmplaints were rejected on direct appeal.“ (See; State's Reply, .
pp.e) " ; , l »~ __ _ ' / ‘

_However, the district attorney has failed to address applicant's constitutional
questions of vla\_'i'hari;d_ fact regarding.` additional evidence that is being presented:_“; for `
the first time in §hie',fore§oing habeas corpus.petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and rejected on direct appeal si-are not cognizable on habeas corpus. Ebc parte
Schuessler, 846 ,S.W.Zd_at 852('!'32:, Crim. App.ng2); Ex parte`Goown, 816 S.N.Zd
383, 385('1ex.- Crim,__‘ App. 1991); Ex parte Ruseell, 738 S.W.2d 644, 646('1'ex._` Crim.App. 7
1986). ' '

In addressing ground number four and .,five,. the trial.court erred in,statin§c
"The Court finds that the applicant's miranda end due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; r!emorandxm\/Finding,
ppc 1)¢

Applicant's Traverse To "I‘he Trial court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
court's finding that: _. ' . 4

~ "applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal." (Swz D£enprand\m / Finding, pp.l) '

Applicant maintains that his claim presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected tc procedural bar, 4
because his claims now before the court are fundamental constitutional claims that _,
are based upon new theories that were not presented on direct appeal. Ex parte Good- '~
man, 816 S.de 383, 385(Tex. Crim. App. 1991); Edc parte Russell, 738 S.W.2d 644('I'ex
Crim. App.1986), Ex parte Schuessler, 846 S.W.2d at 852('Iex. Crim. App. 1992) The law
is clear, although habeas corpus is traditionally;§~f ~!:.unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutin rights may be raised. Ex parte Schuss§er, 846 S.W.2d at 852
('I'ex. Crim. App. 1992)(granting relief due to lack of jurisdicti_on); Ex parteskussell,
738 S.W.2d 6_44'(Tex. Crim. App. 1986)(granting relief d'ue to improper admission of void
prior conviction); }hc parte Bravo, 702 S. W. 2d 189(‘1‘ex Crim.App.1982)(granting relief
do to the improper excusal of a veniremamber)z Ex parte Clark, 597 S.W.2d 760(Tex. '
Crim.App.`19‘79)(granting relief due to the trial court's failure to apply the law to .
the facts of the case). '

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct'appeal Cotten argued that the trial 'j~`court erred in failing
to suppress his first statment because it's procurenent violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38 22 of the
'Iexas Code of Criminal Procedure. (See; Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated hi's
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as
requiredby Article 38.22 § 3(a)(2)ms, TexasCode of Criminal Procedure. (See: Memrand\m
of law, pp.14). ' ` ` ` ` ' '

 

After cmpar_ing applicant's ground number four in his habeas corpus petition to
applicant's claim number ane on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error

l based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --»"applicant*s Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause remanded back to
the trial court for a new trial.

Likewise; a` review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and l
voluntarily made. (Seez opinion of the Eight Court of Appeal€i pp-B). However, a review
of applicant's fifth §round for review on his habeas corpus petition shows that he
alleged that -”Detective Anderson violated his due process right under the Fifth and
Fourteenth Amandment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self~incrini noting
statement against himself. (See: Applicant°s lmrandum of law,' pp.l?). ‘ '

l

21

In summary, after comparing applicant's ground number five in his habeas corpus

` petition to applicant's claim number two on his direct appeal it because clear that
the claims are not the same because applicant is now presenting a constitutional issue _
of :;fundamental error based upon a theory not alleged on directli_"" appeal'. Consequently,
Vthe trial court's finding that --"applicant's Miranda and due process grounds for re-

` lief are not cognizable because they were litigated on direct appeal"--amst be over-

' ruled and the case remanded back to the trial court for a new trial. ‘ ' '

' Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment,hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five~ Appli-

¢ cant So Moves The Court. l ' l

kespectfully Submitted=

YS§§¥EY<§°BR§€“ "°' 1_826716

2661 F.M.»' 2054
Tennessee Colony, Texas 75884

10

 

‘~~s.e

I¢ ' Matthew Cotten, Applicant, Pro se, do hereby certify that altrde land correct
» copy ofllthis foregoing instrument has been served upon Steven W.l Conder-g Assistant ll

maurice Ap'\-.¢')mey, 401 w. aeimp, sort _worcv. rees 76196-0201. accused on this 25th "
day or February, 201s.j ' ' l ' l ~ " '

Sign; l _ 4 ` v
Matthew C¢!tben NO. ~ l1826716 _
Applicant' Pro Ge‘»;..[~`_'.lf:"`~ ' _‘

11

