                                      TERRENCE W. KIRK
                                         Attorney a t Law
                                         1504 West Avenue            ^e>, i68 -q)
                                         Austin, Texas 78701
                                            (512)236-8511
                                           (FAX) 476-5346
BOARD CERTIFIED CRIMINAL LAW
                                                                                        E-MAIL ADDRRESS:
TEXAS BOARD OF LEGAL SPECIALIZATION
                                                                                     tkirk@defenselawyer.net




                                        May 8, 2015

       Tina Morgan Freeman
       Clerk, District Court
       Caldwell County
       1703 S. Colorado St. Box 3
       Lockhart, Texas 78644

       Re: Exparte Pedro Javier Quintero, No. 2011-018A

       Dear Ms. Freeman,

         Enclosed please find the original and one (1) copyof Applicant's Objections to the
      Trial Court's Findings of Fact and Conclusions of Law in this cause. Pursuant to
      Article 11.07 of the Code of Criminal Procedure, please transmit the Objections to
      the Texas Court of Criminal Appeals immediately. A copy of this request is being
      sent to the Court of Criminal Appeals to ensure that the Objections are transmitted
      in a timely fashion. Thank you for your assistance.

                                         Sincerely,

                                             7         v. ?<*




                                                                 RECEIVED IN
                                                            COURT OF CRIMINAL APPEALS
                                                                   MAY 14 2015
     cc: Texas Court of Criminal Appeals
         Honorable Fred H. Weber                                 Abel Acosta,Clerk
                                       NO. 2011-018A



 EX PARTE                                                   IN THE DISTRICT COURT

                                                            OF CALDWELL COUNTY

 PEDRO JAVIER QUINTERO                       §              421st JUDICIAL DISTRICT


             OBJECTIONS TO TRIAL COURT'S FINDINGS OF FACT
                             AND CONCLUSIONS OF LAW



 TO THE HONORABLE JUDGE OF SAID COURT:


 COMES NOW Applicant Pedro Javier Quintero, by and through his undersigned counsel,

 and respectfully submits the following objections to the Court's Findings of Fact and

 Conclusions of Law:


        1. Applicant objects to the Court's findings in their entirety since the Court did

not make a>timely finding pursuant to Article 11.07 § 3(c) that there were no controverted

facts material to deciding the legality of Applicant's confinement. The Court did not

make this finding until April 13, 2015, long after Applicant's writs were filed on January

30, 2015. With respect, the Court had no authority to act after the twenty days had

passed, and the applications should have been "immediately" transmitted to the Court of

Criminal Appeals.

       2. Applicant objects to any consideration by the Court of the State's answer. The

Answer was untimely, coming on April 10, 2015, more than two months after

Applicant's writs were filed. Article 11.07 provides only fifteen days after an application

is received for the State to answer. Moreover, as noted, the writ should have been sent to

the Court of Criminal Appeals long before the State filed its answer.
         3. Applicant objects to the Court's adopting the findings and conclusions in the

 State's Answer without giving counsel time for Applicant to respond to them before the

 writ was sent to the Court of Criminal Appeals. Such a practice violates due process.

         4. Applicant objects to the Court's failure to order that a copy of Applicant's

 Memorandum of Law be transmitted to the Court of Criminal Appeals. There needs no

 ghost came from the grave to announce that the legal arguments of both parties should be

 presented to an appellate court for review, not just the State's Answer.

         5. Applicant objects to the State's assertion at p. 2 of its Answer, that Jordan

 Castillo was the girlfriend of Johnny Lozano. This claim is incredible since the record

 shows that the alleged victim was the girlfriend of Lozano - - at least until the alleged

 sexual assault. The State's failure to get even this basic fact of the case straight is telling.

         6. The State complains that the copy of the photograph attached to the writs is of

"poor quality" and not subject to identification. The short answer is that the photograph

was given to Applicant in discovery by the State. Moreover, Exhibit B of Applicant's

writ clearly shows Applicant, not the alleged victim.

        7. Although the record indicates that trial counsel did subpoena Jordan Castillo,

trial counsel did not move for a continuance or request a writ of attachment when Castillo

was allegedly not present at the courthouse (a controverted issue of fact). Consequently,

the State's assertion, at p. 3, that she "did everything she could have done under the

circumstances to secure Castillo's presence" is inaccurate.

        8. The State contends, at p. 4, that Castillo's testimony would have been hearsay,

and that the photographs [sic] could not have been authenticated. This ignores that

Castillo could have identified the picture of Applicant, and.that Lozano's statements
 about the photos might as well have been excited utterances. Moreover, in any event,

 Applicant had the right to confront the alleged victim with the photograph and to question

 her about the other photographs.

        9. Applicant objects to the State's contention, at p. 4, that he was not prejudiced

 by the fact Castillo did not testify because his DNA was found and because of the alleged

 injuries of the supposed victim. Applicant's defense was that the sex was consensual, so

 the presence of DNA meant nothing. The alleged injuries were consistent with rough sex,

 but more to the point, how could testimony about the alleged victim posing like a

 Playmate, if believed, not constitute reasonable doubt?

        10. The State contends that the testimony of Robert Rangel and Doug Cruz would

have been barred by Rule 412 because Rule 412 contains no exception for impeachment.

State's Answer at p. 4. The State ignores that Rule 412(b)(2)(C) allows evidence that

"relates to" the "bias or motive" of the alleged victim. Since the alleged victim portrayed

herself as traumatized into solitude and seclusion, evidence that she was not showed her

bias. Moreover, evidence that is "constitutionally required" to be admitted is not barred

by Rule 412. It is true that a complaining witness's sexual history is not ordinarily

relevant, but it cannot be that she can lie without reservation about that history, not

without violating the Confrontation Clause.

        11. The State maintains, at p. 5, that trial counsel made a strategic decision not to

introduce copious evidence showing that the alleged victim was not traumatized.

According to trial counsel, she wasafraid that if she introduced such evidence, the State

would respond by calling an expert to testify about the effects of a sexual attack. And

trial counsel avers in her affidavit that she was aware from past experience that
 introducing evidence of "Kelsey posing provocatively, drinking, flirting, having sex,

 buying beer, or any number of other bad behavior to disprove her and her mother's

 testimony oftrauma," (emphasis added) would have "opened the door" for an expert to

 testify that her behavior after the offense was "consistent with trauma."

          This makes no sense, however. The alleged victim and her mother did not admit

 that she had behaved provocatively, but testified that shad become withdrawn. An expert

 might have explained why trauma could cause promiscuous behavior, but could not have

explained why the alleged victim lied about the nature of the trauma - - and why she

presented herself as withdrawn when she was, "in fact, all over the internet." Moreover,

trial counsel marked four photographs for identification. See Exhibit C to Applicant's

writ. Can anyone believe that counsel suddenly remembered the deadly expert just before

she was ready to introduce the photographs? And when the photographs expose the

complaining witness as a liar, who cares about an expert? There was no strategy here,

much less a reasonable one.


          12. At page 6 of its Answer, the State complains that trial counsel could not have

been ineffective for failing to call Roxanne Garcia because Garcia was unknown until

after the trial. Quiet true, but Applicant did not fault trial counsel for this - - he submitted

that it was newly-discovered evidence. The State also insists that the evidence would

have been inadmissible, but it would not have been offered to show the alleged victim's

sexual history, but as an inconsistent statement: She testified at trial that Everett Rainey

had been part of the gang that assaulted her, but years later bragged about sleeping with

Rainey.
        13. Applicant objects to the State's conclusion, at pp. 7-8, that all of the evidence

would not have gone "directly" to the defense, but only constituted impeachment on

"collateral issues." The credibility of the complaining witness was hardly a collateral

issue, and her false testimony about being traumatized was hardly "collateral." When trial

counsel inexplicably failed to show that the alleged victim was a liar, no wonder

Applicant fled.

        14. Applicant objects to the State's argument about actual innocence. State's

Answer at pp. 7-8. With all the evidence that counsel did not present, along with new

evidence showing the complaining witness admitted having consensual sex with one of

the accused attackers, no jury could find Applicant guilty. The photos and the texts in this

case do not lie - -the alleged victim did.

                                              Respectfully submitted,




                                              TERRENCE W. KIRK
                                              State Bar No. 11513500
                                              1504 West Avenue
                                              Austin, Texas 78701
                                              (512)236-8511
                                              (512) 476-5346 (Fax)
                                             ATTORNEY FOR PETITIONER
                               CERTIFICATE OF SERVICE


              I certify that a copy of the foregoing Objections was mailed to Mr. Fred H.

Weber, Criminal District Attorney, Caldwell County, P.O. Box 689, Lockhart, Texas

78644, on this the ^u day ofMay, 2015.



                                                             Ly.   XU

                                           TERRENCE W. KIRK
