       RECEIVED IN                                                                           WR-80,957-02
COURT OF CRIMINAL APPEALS                                                    COURT OF CRIMINAL APPEALS
                                                                                             AUSTIN, TEXAS
      August 21, 2014                                                      Transmitted 8/20/2014 4:57:27 PM
                                                                             Accepted 8/21/2014 9:06:58 AM
                                                                                              ABEL ACOSTA
   ABELACOSTA, CLERK                    No. WR-80,957-02
                                                                                                    CLERK


                           IN THE COURT OF CRIMINAL APPEALS



                                                  )
       Ex parte Andres EnriqueCantu,              ) TC#CR-730-09-C(l)
                                                  ) 139th District Court
                           Applicant              ) Hidalgo County, Texas
                                                  )


                    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 20th day of August, 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 ofthis Motion for Rehearing are attached

       hereto and made a part hereof.


                               M6fION DENIED



                                                              ELECTRONIC
                                                                    RECORD
                                 Respectfully Submitted,




                                 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 ofrecord for Applicant Andres Enrique Cantu

hereby certify that a true and correct copy ofthis motion and the motion for rehearing

and reconsideration together with written arguments and authorities attached thereto

have been delivered to the opposing party, Michael Morris, by posting, certified mail,

to his address, 100 Closner Blvd., Edinburg, Texas, 78539, this the 21st day of

August, 2014.
                                 Respectfully Submitted,


                                    iLu/l^&cJwuoA&l^
                                 Margaret Schmucker
                                 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. 1991); 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.

Cantu 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).2 Thus, claims involving a violation of procedural statutes cannot

   be asserted via habeas corpus. Ex Parte Banks, 769 S.W.2d 539, 540 (Tex. Crim.

   App. 1989) ("[traditionally, habeas corpus is available only to review

   jurisdictional defects ... or denials of fundamental or constitutional rights.")

   (citations omitted). Indeed, even a constitutional claim is forfeited ifthe applicant

   had the opportunity to raise the issue on appeal. Ex parte Gardner, 959 S.W.2d at

   191.


           That said, an ineffective assistance of trial or 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); Ex parte 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 it is thus necessary to allege and prove the existence of some




       2Although Exparte Gonzales, 667 S.W.2d 932, 935 (Tex. App. 1984), purports to
acknowledge and exception to this rule where double jeopardy is raised, this exception does not
seem to apply where the double jeopardy defect could have been raised on direct appeal but was
not. Exparte Gardner, 959 S.W.2d at 191 (even constitutional claims can be defaulted).
underlying error of arguable or colorable merit apparent on the face of the record

which was not asserted by trial counsel, or cognizable on direct appeal but not

raised by appellate counsel. 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); Exparte 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 at trial and then on direct appeal but were

not as a necessary part ofhis ineffective assistance ofcounsel claims and not as

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

Three alleges ineffective assistance of counsel for failing to assert a meritorious

due process claim arising out ofthe District Court's violation ofa state procedural

rule during sentencing, i.e. Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1) and (d),

which could have been reviewed on direct appeal had it been properly preserved

by objection and might now be deemed forfeit as an independent claim in state

habeas proceedings. Ex Parte Banks, 769 S.W.2d at 540. Ground Four alleges
   ineffective assistance ofcounsel for failing to assert a meritorious double jeopardy

   claim arising out ofdeficient jury instructions which allowed for a non-unanimous

   jury verdict which Could have been reviewed on direct appeal even without proper

   objection, see Fergerson v. State, 09-04-391 CR, 2006 WL 2075199 (Tex. App.

   July 26, 2006) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)

   (op. on reh'g) and Exparte Smith, 185 S.W.3d 455 (Tex. Crim. App. 2006) for the

   proposition that failure to object to jury charge error does not forfeit appellate

   review but does raise the standard of review), and might now be deemed forfeit

   as an independent claim in state habeas proceedings.3 Ex parte Gardner, 959

   S.W.2datl91.


           Because Cantu's ineffective assistance of counsel claims required him to

   plead and prove both the existence and legal merit of underlying trial error as a



       3 The procedural history of the underlying substantive claim is especially relevant here.
On direct appeal Cantu's appellate counsel raised the following point of error:
       The trial court committed reversible error in submitting the charge to the jury
       without including separate unanimity instructions in the application paragraphs as
       to counts one and two.
Appellant's Brief at 41-45. The "unanimity" at issue in the appeal was unanimity as to the same,
single, specific criminal act. The Court of Appeals overruled the error. Memorandum Opinion
at 12-14. In a post-opinion motion for rehearing and reconsideration en banc, new appellate
counsel argued that the complained-ofjury instructions improperly allowed the jury to consider
the allegations/ evidence regarding both victims for both counts which resulted in double
jeopardy violations and allowed for the possibility of a non-unanimous jury verdict. The Court
of Appeals refused to consider the unassigned charge error based on violations of the
prohibitions against double jeopardy and a non-unanimous jury verdict and denied the petition
for rehearing and reconsideration en banc.
part of those claims the Court ofCriminal Appeals incorrectly held that Cantu had

raised "multiple grounds" on a single page in violation ofTexas Rule of Appellate

Procedure 73.1.    If counsel amends Cantu's writ application to separate the

substantive underlying claims from the ineffective assistance ofcounsel claims as

the dismissal order tacitly suggests should be done, he risks having the substantive

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

the ineffective assistance of appellate counsel claims in turn be denied for failure

to prove the merits of the forfeited claims. The net effect of such a procedure

would mean that, Cantu could never present his claims in a format sufficiently

satisfactory to this Court to get his ineffective assistance of 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.
                                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 1,359 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,




                                Mar£
                                 [araarsF Schmucker
                                Attorkey for Defendant
                                August 20, 2014


                                     8
