                                                                                  SI iUSO-oi

                                                                Feb. /7 > 2015
                                                                Joel Garza #1837353
                                                                Terrell Unit
                                                                1300   FM   655
                                                                Rosharon,      TX   77583

COURT    OF    CRIMINAL       APPEALS
                                                     MOTION DENIED
Clerk -       Abel    Accosta
201 W. 14th St., Room 106                            DATe:_J^3-!3L
P. O. Box 12308
Austin, TX  78711-2308
                                                     BY:        Kv.                         FE8 2() 2015
Re:     Case    No.:        WR-81,650-01,            Ex   Parte   Joel      Garza
        Tri.    Ct.    Cause       No.:   C-2-010204        -   1256110-A
        Article 11.07 Application for Writ of Habeas Corpus

Dear    Clerk:


        Enclosed please find Applicant's                        "Objection to Trial Court's

Findings", Applicant's Motion to Stay and Abate Article 11.07

Habeas Corpus Writ Application.                       Applicant is an indigent*             pro se

litigant without access to a computer,                            xerox copier or E-mail.

Please file this motion with the papers in this case and brinq to

the    attention       of    the    court.


        Thank you for your assistance and pleaete provide notice of

filing.

                                                                Respectfully submitted.


                                                                       Uh,&*y&-—



Cc:
      ifoAfifliT cuunty nnrMtf       Arro/<-fiJi£Y
                                                                        81 ,(1350-61
                                 NO.     WR-81,650-01


                                             IN    THE

                                 COURT       OF    CRIMINAL

                                         APPEALS

                                         OF       TEXAS




                                        JOEL       GARZA

                                        Petitioner


                                                   V.


                                 THE    STATE       OF    TEXAS




             Motion     in   Cause     No.    C-2-010204           -     1256110-A,

                 From   the   Criminal District Court Number Two

                              Tarrant        County,       Texas



                   OBJECTION      TO    TRIAL          COURT'S    FINDINGS


                  APPLICANT'S        MOTION        TO    STAY    AND    ABATE

             ARTICLE     11.07    HABEAS          CORPUS    WRIT       APPLICATION


TO THE HONORABLE JUDGES OF COURT OF CRIMINAL APPEALS:


     COMES NOW, Joel Garza, an incarcerated pro se Applicant with his Objection

to Trial Court's Findings* and Motion to Stay and Abate Article 11.07 Habeas

Corpus Writ Application, alleging trial court's findings are insufficient and

not supported by the record.


Background

1. On or about   Mar., 2014, Applicant submitted Art. 11.07 Habeas Corpus Writ

Application to Tarrant County District Court Number Two, in Cause No. C-2-010209

1256110-A;

2. On or about   April, 2014, Applicant submitted a subsequent Art. 11.07 Habeas

Corpus Writ Application to same district court, Cause No. C-2-010236 - 1256110-B;




                                                  1.
3. On or about    June 04, 2014, the Tarrant County District Attorney filed an

"ANSWER" to Art. 11.07 Habeas Corpus Writ Application in Cause Nos. C-2-010209 -

1256110-A; and   C-2-010236 - 1256110-B; (see State's Answer), and included copies

of the following instruments:

   (a), defendant's trial motion to appoint investigator, and Order appointing
         investigator - Bearden Investigative Agency, Inc.;

   (b). defendant's trial request for appointment of expert witness and Order
         appointing expert witness - complete Accident Reconstruction Service;

   (c). defendant's first amended request for appointment of expert witness
         and Order for appointment of expert witness r- Dr. Gary Wimbish;

4. The State's "ANSWER" (#3 above) failed to provide the "REPORTS" of investi

gator and expert witnesses, (see State's Answer);

5. The trial court denied the original and subsequent habeas corpus writ appli

cations and forwarded applications to the Court of Criminal Appeals, where:

   (a), the CCA. assigned case number         #WR-r81,650-01, to trial court cause
                             .*                        :—
         no. C-2-010209 - 1205110-A, (Pending ??);
   (b). the CCA. assigned case number # WR-81,650-02, to trial court cause
         no. C-2-010236 - 1256110-B; and was denied without written order on

         08-20-2014.




Objection

     Applicant alleged facts that if true might entitle him to relief. Appli

cant objects to the trial court's findings of fact or conclusions of law in

that those factual findings are not '.supported by.the record, and resolution

of fact issues is necessary for the Court of Criminal Appeals to render a

decision on Applicant's claims.

     The; State's Answer/Response asserts there is no need for an evidentiary

hearing and expansion of the record, and that Applicant's grounds can be re-



                                         2.
solved based solely on the record before the court.

     However, a review of the record submitted by the State on .habeas corpus

review affirmaftively demonstrates the necessity to develope record in that

relevant and material "Reports" from court ordered investigator and expert wit

nesses were ommited from said record.


Authorities


     In Ex Parte Patterson, 993 S.W.2d 114/ 115 (Tex.Crim.App.1999), the court

held, additional remand,-to the trial court, was required for a hearing to

determines:whether counsel advised defendant about potential challenges to prior

conviction and why defendant chose not to pursue them            Because Appli

cant alleged facts that, if true* might entitled him to relief, we remanded

this matter to the trial court for resolution of factual issues presented in

accordance with Art. 11.07, Texas Code Criminal Procedure         Since the

Court of 'Criminal Appeals does not hear evidence (Ex Parte Rodriguez, 169 Tex.

Crim.App. 367, 364 S.W.2d 294 (1960), the court held application in abeyance

pending the trial court's compliance with this opinion. Ex Parte Patterson,

993 S.W.2d at 115..(supra).

     In Jefferson v. Upton, 130 S.Ct. 2217 (2010, the Supreme court held that

remand was required to determine whether State habeas court's factual findings

warranted a presumption of correctness. The court believed it necessary for

lower courts to determine on remand whether State courts factual findings war

ranted a presumption of correctness, and to conduct any further proceedings as

may be appropriate in light of their resolution of that issue.


Argument

     Amongst other things, Applicant alleged counsel was ineffective in that

counsel pressured Applicant into pleading guilty involuntarily by giving mis

leading, confusing information and withholding information from him.,




                                        3.
     Here, the State's Answer/Response to application for writ of habeas) corpus

contained trial records of:      (a)., defense motion for appointment of investiga

tor, and Order granting such;,     (b). defense request for appointment of expert

witness - (Complete Accident Reconstruction Service), and Order granting such;

(c). defense request for appointment of expert witness - Dr. Gary Wimbish (for

ensic toxicologist), and Order granting such.

     However, the State's Answer/Response did not include copies of the "REPORTS"
                         r
from said investigator of expert witnesses. The State appears to have based

their proposed findings of fact and conclusions of law on the opinions of these

court ordered experts. The relevance of these motions/requests and Orders is

obvious in that the State introduced said records to support trail courts habeas

findings and conclusions. The State's response has further alladed to defense

counsel's review of (case) file and experts opinions., (see State's Proposed

Findings #13-20; and Conclusions of Law #16-26).

     In light of   Applicant's factual allegations, the State's Response and

Proposed Findings of Fact and Conclusions of Law, and the habeas record sub

mitted by the State, Applicant argues in good faith, that the record does not

support the findings and conclusions made by the trial court.

     As in Jefferson v. Upton, 130 S.Ct. 2217 (2010), in this instance the State

trial court's findings were drafted exclusively by the Attorney for the State.

The trial court appears to have relied upon the State's Response to Application

forWrit of Habeas Corpus, to support the court's findings. Considering the

ommission of several key reports, court ordered, it would appear that the pre

sumption of correctness applied to State court findings, is in question and

that this court should not give deference to these trial court findings until

an evidentiary hearing can be ordered and held, for resolution of all the ;..

issues and grounds in application for writ of habeas corpus.




                                         4.
     Here, Applicant alleged facts which* if true, might entitle him to relief.

These factual issues were presented in accordance with Article 11.07. Applicant

offered evidence, to rebut trial court.'findings, that indicated vehicle defects

that may have contributed to the accident.in this case. Applicant's allegations

were based, in part,, upon the "Texas Peace Officers Crash Report'"(Form CR-3,

1-1-2010). This Report.was investigated and prepared by investigator "LY SORRELS"

of the Fort Worth Police Department, Case No. 11^025820, dated          03-16-2011.

Applicant would argue, he is entitled to an. evidentiary hearing because the

State did not provide full and fair.hearing at which to develope facts, see

Hall v. Quarterman, 534 F.3d 365, 367-369 (5th Cir.2008)-(where court held

petitioner was entitled to evidentiary hearing because the State did not pro

vide a full and fair hearing at which to develope facts.)




                                   Prayer

    For the reason alleged herein, Applicant was denied a fair review of his

factual issues on post-conviction habeas corpus review. Therefore, Applicant

prays this Court grant this Motion, stay and abate proceedings in this case,

and remand to the trial court for an evidentiary hearing.

                                                   Respectfully submitted.




                                              Joer Garza       #1837353
                                              Terrell Unit
                                              1300 FM 655
                                              Rosharon,   TX    77583

                                               Z-il-fS-



                                      5.
                           Certificate of Service


     I, Joel Garza, hereby certify and declare that a true and correct copy of

the foregoing Objection to Trial Court's Findings, Applicant's Motion to Stay

and Abate Article 11.07 Habeas Corpus Writ Application, by depositing such in

U.S. Postal container, properly addressed to the Tarrant County District Attor

neys Office - Mr. Joe Shannon, Tim Curry Criminal Justice Center, 401 W.

Belknap St., Fort Worth, Texas.76196-0201, on this the 17 day of Feb. 2015.


                                                     0^/ <%Mft«3
                               Unsworn Declaration                  ,


     I, Joel Garza, TDCJ-ID No. 1837353, currently incarcerated in the Terrell

Unit, TDCJ-ID, in Brazoria County, Texas do hereby declare under penalty of

perjury that the foregoing instrument it true and correct to the best of my

beliefs.


     So Sworn on this the 17   of Feb. 2015.




                                     6.
