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Roosevelt Hollins #435032
O-B. Ellis Unit
1697 FM 980
Huntsville, Texas 77343

Date: Febuary SM!, 2015 REE Habeas Corpus No. WR-l7,722-O3
' ’""“ Exparte Hollins, Response-PRO SE

CLERK OF COURT OF CRIMINAL APPEALS
Abel Acosta

P.O. Box 12308, Capitol Station
Austin, Texas 78711

Dear Clerk/
Enclosed please find one copy of my Response to the State's
Reccomendation for my habeas corpus to be denied. Please file

the same for consideration in this matter.

Sincerely,

 

(A)

EX-PARTE

ROOSEVELT HOLLINS
Applicant

IN THE __JUDICIAL DISTRICT
coURT FoR
DALLAS coUNTY, TEXAS

TRIAL coURT No.W86-89106-M(B)

coome

HABEAS CORPUS NO. WR-l7,722-O3
APPLICAN‘S RESPONSE TO THE STATE'S
RECCOMENDATION TO DISMISS HABEAS CORPUS
TO THE HONORABLE JUDGE OF COURT OF CRIMINAL APPEALS:

Now Comes, the Applicant, Roosevelt Hollins, who filed
this writ of habeas corpus pursuant to a conviction in cause
number W86#89lO6-M(B). Applicant alleges that he is illegally
confined at the O.B. Ellis Prison Unit in violation of his
Constitutional Right to "Effective Assistance of Counsel,"
as is provided by Article I, section 191 and_Article I Section
lO of the Texas Constitution, as well as pursuant to the 6th

Amendment of the United States Constitution.
THE CLAIM_

(A): APPLICANT CONTENDS THAT HIS TRIAL COUNSEL FAILED
TO OBJECT TO INCORRECT TESTIMONY BEING READ
BACK TO THE JURY_WHICH CHANGED THE OUT-COME
'OF HIS CRIMINAL TRIAL PROCEEDINGZ

(B): NO RATIONAL JUROR WOULD HAVE CONVICTED APPLICANT
ABSENT THE ERROR OF TRIAL COUNSEL:

(C): COUNSEL'S ERROR IN FAILURE TO OBJECT WAS SO
HARMFUL THAT IT DEPRIVED APPLICANT OF A FAIR

TRIAL:

(E): THE RESULTS OF COUNSEL'S EFFORTS ON APPEAL

(l)

WERE USELESS SINCE HIS ERROR AT TRIAL PREVENTED
APPLICANT OF THE RESULTS THAT HE WAS ENTITLED:

(E): THE COURT OF CRIMINAL APPEALS HAS CONSISTENTLY
HELD THAT IT HAS NEVER DENIED RELEIF TO A
FEDERAL CONSTITUTIONAL ERRORZ

APPLICANT'$ ARGUMENT

Applicant argues before this Honorable Court of Criminal
Appeals that the State attempts to over shadow a clear "Federal
Constitutional Error", i.e., Ineffective Assistance of Counsel
at the most critical stage of applicant's trial proceeding.

In what was a meaningless order the court ordered counsel to
explain his representation at trial, notwithstanding the fact
that the records pertaining to counsel's Error at trial has
been preserved in an published opinion in Hollin v. State, 734f
s.w.2a 194 (19 ); and Hollis v. state, 805 s.w.zd 475 (19 ).
In both of those opinions the Court of appeals addressed the
reading of "Incorrect Testimony" back to the jury. See Hollins
v. State, [supra]; Court of Appeals Dallas. In that opinion the
Court of Appeals_found-that reading incorrect testimony back
to the jury was Reversible Error since...

... that portion of testimony was likely the

very testimony that the jury was considering

because of possible mistaken idenity by the

victim. `

On discretionary review the Court of criminal Appeals af-

firmed by holding that applicant "should have known" of the

incorrect testimony since it was read back on the same day

(2)

that the testimony was given. Hollins [supra]. Since counsel's
error in failure to object to the reading back of incorrect
testimony, the next question should have been is or was there
a reasonable probability that, absent counsel's error,the fact-
finder would have had reasonable doubt on the issue of guilt,
considering the totality_of the evidence. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Applicant
pointed out in his habeas corpus writ the findings of the Court
of Appeals in Dallas,~whereas that court clearly found that,
"since the jury was possible considering a mistaken idenity
when it requested the trial testimony read back to them, then
error was harmful and affected the out-come of the trial. Under
the circumstances Applicant argues/ the challenged action can
not be remotely be considered sound trial strategy. See id;
Jackson v. State, 877 S.W.Zd 768, 77l (Tex. Crim. App. 1994).
Because the record in this case is complete with evidence showing
error that reflects the trial attorney reasoning were certainly
not good ones when he failed to object when Applicant's entire
defense depended upon him to assure that trial was fair, this
Court must defer to the Strickland presumption on the matter
of whether or not this was'sound trial strategy. Jacksony 877
S.W.Zd'at 77l-72. Applicant alleges that by the Strickland

court it was not.

THE CARRIO CLAIM

The State argues that because applicant-has waited over

20 years to bring this error, his claim should thus be denied

(3)

citing Exparte Carrio, 992 S.W.2d 486_(Tex5 Crim. App. 1999).

However, this court clearly made it known that the Court of
Criminal Appeals "has never denied relief on a 'valid' claim

due to an Applicant's delay in bringing the claim". On the
contrary we have no desire to impose upon defendants the require-
ment that claims for releif be asserted within a specified period
of time. Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App,)
(citing Ex parte Rocha, 482 S.W.Zd 169 (Tek; Crim. App. 1972)/

and Ex parte Young, 479 S.W.Zd 45 (Tex. Crim. App. 1972). Never-
theless, we have reconized that delay on the Applicant's part

will affect his credibility. Young, 479 S.W.Zd at 46. Although
Ineffective Assistance Claims fall within the Rule 9 (a) holdings,
it appears that such rules were created to avoid those cases
where trial counsel's memory of the facts of the case has been
lost. Commentators reason that, when claims-are asserted after

the passage of many years/_Attornies for the defendant and the
State have difficulty in ascertaining the facts. However, in

this case there is a record of the incorrect testimony being

read back to the jury, the trial record indicates that Applicant's
Attorney failed to object. The Court of Appeals found_readingi

of the incorrect testimony to have been harmful to ApplicantVs
trial. Applicant could not obtain releif because of Counsel's
Error at trial. The Fifth Circuit has acknowledged that application
of Rule 9 (a)`"must be carefully limited to avoid abrogating

the purpose of the writ of habeas corpus". Walters v. Scott,

21 F.3d 683, 686 (5th Cir. 1994). The State failed to show the

main reason of Rule 9 (a), that it has been prejudiced in-.…

(4)

responding to the allegation in this Petition. The State argues
that it would affect its ability to retry the case, it does
not complain about being able to respond to the Ineffective
Assistance of Counsel Claim in this habeas corpus. The record-
of Counsel's Error is preserved, the Court of Criminal Appeals
findings concerning "The Harm" in the reading back incorrect
testimony is there for consideration, and the decision to deny

Applicant releif because Counsel failed to object is also present/
thus the State cannot and has not over»come_the requirements
to deny releif based upon the "Law of Laches." This Application
in all things should be granted and Applicant afforded a new
trial; .

Wherefore Applicant prays for this Court of Criminal Appeals

to grant him the`releif sought on his Ineffective Assistance

of Counsel Claim.

Respectfully Submitted,

 

Roosevelt Hollins #435032

NOTARY

 

I,`the Applicant do declare that the above is true and signed

by me on this day of l 2015.

 

 

Roosevelt Hollins #435032
O.B. Ellis Unit

1697 FM 980

Huntsvilley Texas 77343

