                                                                                     WR-80,826-02
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN. TEXAS
                                                                   Transmitted 7/31/2014 12:47:42 PM
                                                                      Accepted 7/31/2014 1:12:33 PM

                                 No. WR-80,826-02                                     ABELAclerk
                    IN THE COURT OF CRIMINAL APPEALS                       received
                                                                   COURT OF CRIMINAL APPEALS
                                                                          7/31/2014
                                                                      ABEL ACOSTA, CLERK



Ex parte Quirino Machin Sanchez,           ) TC #CR-1624-10-J(1)              AjU^-^
                                           ) 430th District Court                      ^
                    Applicant              ) Hidalgo County, Texas               {r1/KJ^
                                           )                                          £C-

             MOTION FOR REHEARING and RECONSIDERATION


To the Honorable Court of Criminal Appeals:

      Now comes the Applicant and moves the Court to set aside the judgment of

dismissal rendered and entered herein on the 30th day of July, 2014, and grant a

rehearing of this cause, for the following reasons, to wit: the dismissal was the result

of a legal error. Applicant states that the name of the opposing counsel in this cause

is Luis Gonzalez, whose office is at the 100 N. Closner Blvd., Edinburg, Hidalgo

County, Texas 78539.

      Argument and authorities in support of this Motion for Rehearing are attached

hereto and made a part hereof.




                                                          ELECTRONIC
                                   Respectfully Submitted,


                                                tCDcJurnuoJce/i
                                   Margaret Schmucker
                                   Attorney for Defendant
                                   Texas Bar No. 24030874


                                   Law Office of Margaret Schmucker
                                   2301 S. Lakeline Blvd., Suite 800-53
                                   Cedar Park, Texas 78613

                                   Phone:(512)236-1590
                                   Fax:(877)465-7066
                                   E-Mail: M.Schmucker@AppellateCourtLaw.com


                           CERTIFICATE OF SERVICE


      I, Margaret Schmucker, attorney of record for Applicant Quirino Machin

Sanchez hereby certify that a true and correct copy of this motion and the motion for

rehearing and reconsideration together with written arguments and authorities

attached thereto have been delivered to the opposing party, Luis Gonzalez, by

posting, certified mail, to his address, 100 Closner Blvd., Edinburg, Texas, 78539,

this the 31st day of July, 2014.
                                   Respectfully Submitted,




                                   Margaret
                                      irgaret Schmucker
                                              Schm
                                   Attorney for Defendant
      ARGUMENT AND AUTHORITIES ON MOTION FOR REHEARING


                                          Argument

           The Court incorrectly held that multiples grounds have been raised on a

   single page in violation of Texas Rule of Appellate Procedure 73.1.1

                                           Authorities


           It is well-settled "that the writ of habeas corpus should not be used to

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

   Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998), quoting Ex parte

   Goodman, 816 S.W.2d 383,385 (Tex. Crim. App.\99\);seeExparte Groves, 571




       1      Texas Rule of Appellate Procedure 73.1 provides in relevant part:

       73.1. Form of Application in Felony Case (other than Capital)
       (a) Prescribed Form. An application for post conviction habeas corpus relief in a
       felony case without a death penalty, under Code of Criminal Procedure article
       11.07, must be made in the form prescribed by the Court of Criminal Appeals in
       an order entered for that purpose.

Sanchez filed his Writ Application in 2012. At that time, the September 1, 2012, version of the
Writ Application was the most current. The preliminary instructions on that form stated:

       (17) Beginning on page 6, state concisely every legal ground for your claim that
       you are being unlawfully restrained, and then briefly summarize the facts
       supporting each ground. You must present each ground on the form application
       and a brief summary of the facts. If your grounds and brief summary of the facts
       have not been presented on the form application, the Court will not consider your
       grounds.
              If you have more than four grounds, use page 10 of the form, which you
       may copy as many times as needed to give you a separate page for each ground,
       with each ground numbered in sequence.
S.W.2d 888,890 (Tex. Crim. App. 1978) (habeas corpus does not lie as a substitute

for an appeal). Thus, even a constitutional claim is forfeited if the applicant had

the opportunity to raise the issue on appeal. Exparte Gardner, 959 S.W.2d at 191.

      That said, an ineffective assistance of appellate counsel claim is judged

under the familiar two-pronged Strickland standard which requires proof of (1)

deficient performance by counsel and (2) prejudice to the substantial rights of the

defendant. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052

(1984); Exparte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001).

See also U.S. Const. Amend. VI; Texas Constitution, Art. 1 § 10.       In order to

satisfy the "deficient performance" prong of the Strickland standard as it relates

to an ineffective assistance of appellate counsel claim raised in a habeas

proceeding it is thus necessary to allege and prove the existence of some

underlying error of arguable or colorable merit apparent on the face of the record

which was not raised on direct appeal. Cf. Hooks v. Roberts, 780 F.2d 1196 (5th

Cir. 1973), cert, denied, 414 U.S. 1163 (1974) (to prove ineffective assistance of

appellate counsel habeas applicant must show the existence of trial errors with

arguable or colorable merit); Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim.

App. 2009) (applicant proves ineffective assistance of appellate counsel if he

demonstrates that defaulted claim has "indisputable merit under well-settled law
and would necessarily result in reversible error").

      Applicant's writ form thus properly alleged meritorious constitutional

claims which should have been raised on direct appeal but were not as a necessary

part ofhis ineffective assistance ofappellate counsel claims and not as "multiple

grounds" improperly "raised on a single page." For example, Ground Two alleges

ineffective assistance of appellate counsel for failing to assert a meritorious

procedural due process / open courts claim which should have been raised on

direct appeal and as a consequence would be deemed forfeited as an independent

claim. Ex parte Gardner, 959 S.W.2d at 191. Ground Three alleges ineffective

assistance of appellate counsel for failing to assert a meritorious Brady2 claim

which should have been raised on direct appeal and as a consequence may be

deemed forfeited as an independent claim. Exparte Gardner, 959 S.W.2d at 191.

Ground Four alleges ineffective assistance ofappellate counsel for failing to assert

a meritorious Confrontation Clause claim which should have been raised on direct


appeal and as a consequence would be deemed forfeited as an independent claim.

Ex parte Gardner, 959 S.W.2d at 191. Ground Six alleges ineffective assistance

of appellate counsel for failing to challenge the District Court's order denying

Sanchez's motion to suppress his statements to police as violating Miranda


   2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)

                                         5
requirements which should have been raised on direct appeal and as a

consequence may be deemed forfeited as an independent claim.               Ex parte

Gardner, 959 S.W.2d at 191. Ground Seven alleges ineffective assistance of

appellate counsel for failing to challenge the District Court's refusal to suppress

evidence obtained following the unlawful stop and search of the tractor trailer

which should have been raised on direct appeal and may be deemed forfeited as

an independent claim in state habeas, Exparte Gardner, 959 S.W.2d at 191, and

would be barred from review as an independent claim in federal habeas by Stone

v. Powell, 428 U.S. 465 (1976) (Where the state has provided an opportunity for

full and fair litigation of a fourth amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.) And Ground Eight

alleges ineffective assistance of appellate counsel in failing to raise a sufficiency

of the evidence claim on direct appeal which may be deemed forfeited as an

independent claim in habeas. Ex parte Gardner, 959 S.W.2d at 191.

      Because Sanchez's ineffective assistance of appellate counsel claims

required him to plead and prove both the existence and legal merit of underlying

trial error not raised on direct appeal as a part of those claims, the Court of

Criminal Appeals incorrectly held that Sanchez had raised "multiple grounds" on
a single page in violation of Texas Rule of Appellate Procedure 73.1. If counsel

amends Sanchez's writ application to separate the substantive underlying claims

from the ineffective assistance of appellate counsel claims as the dismissal order

tacitly suggests should be done, then the substantive underlying claims would be

denied as forfeited without making a decision on the merits, and the ineffective

assistance ofappellate counsel claims would in turn be denied for failure to prove

the merits of the forfeited claims. The net effect of such a procedure would mean

that, Sanchez could never present his claims in a format sufficiently satisfactory

to this Court to get his ineffective assistance of appellate counsel claims

considered and decided in this Court or in the federal courts on the merits.


                            Conclusion and Prayer

      Applicant respectfully, prays that this motion for            rehearing   or

reconsideration be granted, the original opinion be withdrawn and the case be

considered and decided on the merits taking into consideration Applicant's timely

filed objections to the District Courts Findings of Fact and Conclusions of Law

which were not transmitted to the Clerk of the Criminal Appeals with the Writ

Application file.
                               Respectfully Submitted,




                                 Wgaret Schmucker
                                Attorney for Defendant
                                Texas Bar No. 24030874


                                Law Office of Margaret Schmucker
                                2301 S. Lakeline Blvd., Suite 800-53
                                Cedar Park, Texas 78613

                                Phone:(512)236-1590
                                Fax:(877)465-7066
                                E-Mail: M.Schmucker@AppellateCourtLaw.com



            CERTIFICATE OF COMPLIANCE WITH TRAP 9.4


This document is not specifically subject to a type-volume limitation imposed by

TRAP 9.4(1). Nevertheless, counsel advises that it contains 1,400 words. This

document has been prepared in a proportionally spaced computer generated

typeface using Times New Roman in 14 point Roman type for the body of the

document and 12 point Roman type for the footnotes.

                                Respectfully Submitted,




                                 lariar|j/Schmucker
                                Marg
                                Attorney for Defendant
                                July 31, 2014
