                                                                                      WR-83,072-01
                                                                        COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                      Transmitted 4/23/2015 10:57:31 AM
                                                                         Accepted 4/23/2015 2:09:16 PM
                                                                                         ABEL ACOSTA
                          IN THE 167TH DISTRICT COURT                                            CLERK
                           OF TRAVIS COUNTY, TEXAS
                                                                         RECEIVED
                                                                  COURT OF CRIMINAL APPEALS
EX PARTE                                         §                       4/23/2015
                                                 §   CAUSE NO.      ABEL ACOSTA, CLERK
                                                                 D1-DC-10-203162-A
JORGE GUTIERREZ                                  §

            APPLICANT’S OBJECTIONS TO THE TRIAL COURT’S
             FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Jorge Gutierrez files Applicant’s Objections To The Trial Court’s Findings

Of Fact And Conclusions Of Law and would show as follows:

                                            I.

 THE TRIAL COURT LACKED JURISDICTION TO ENTER FINDINGS
  OF FACT AND CONCLUSIONS OF LAW AFTER THE CASE WAS
              TRANSFERRED TO THIS COURT

         This case demonstrates how broken the habeas system is and how easy it is

for habeas prosecutors and judges to conduct proceedings without including

defense counsel (not to mention pro se applicants).

         Applicant filed a habeas corpus application, brief, exhibits, and a proposed

Order Designating Issues (ODI) with the Travis County District Clerk on February

18, 2015.      He requested that the district clerk serve the district attorney in

accordance with the statute and provided an extra copy of the documents for the

judge.

         The judge did not sign the ODI within 35 days, and the district clerk sent the



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habeas record to this Court on March 26, 2015. The case was docketed under

cause number WR-83,072-01. Thus, the trial court lost jurisdiction to take any

action in the case on March 26 because it did not sign an ODI and the case was

pending in this Court.

       The State filed an answer and proposed findings of fact and conclusions of

law on March 25, but the habeas prosecutor did not serve applicant or his counsel. 1

Counsel called the Travis County District Attorney’s Office on April 3, requested

the name of the habeas prosecutor, called her the same day, and asked whether she

intended to file an answer. She told him that she had already done so; at his

request, her secretary emailed the documents to him that day. Counsel sent a

supplement to the habeas application to the district clerk on April 6.

       The trial court signed an order adopting the State’s proposed findings of fact

and conclusions of law on April 9. The district clerk mailed a copy of the order to

counsel on April 16, and he received it on April 18.

       Counsel did not have an opportunity to request a hearing and/or argument in

the trial court or file proposed findings of fact and conclusions of law before the

district clerk sent the case to this Court. The trial court signed an order adopting

the State’s proposed findings and conclusions two weeks after this Court received

       1
           Neither document contains a certificate of service, and the habeas prosecutor
subsequently told counsel that she did not serve him because it is the district clerk’s
responsibility to do so. One would think that a 27-year appellate prosecutor who also was a
briefing attorney for this Court would know that she must serve documents on opposing counsel.


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and docketed the case. This Court should reject the findings and conclusions

because the trial court did not have jurisdiction to make them and the proceeding

was conducted in an ex parte manner where applicant’s counsel was not served

with any of the State’s pleadings or given the opportunity to be heard.

                                                II.

                             THE EVIDENTIARY ISSUES

       Applicant contends that trial counsel performed deficiently in failing to file a

motion in limine and object to the lead detective’s opinion that he saw no evidence

of self-defense, a lay-witness’s opinion that this was not applicant’s “first rodeo,”

and a DPS chemist and the prosecutors referring to the deceaseds as the “victims.”

Applicant also contends that counsel performed deficiently in failing to impeach

the key prosecution witness with his prior statements to the police.                     Counsel

provided an affidavit acknowledging that he should have sought rulings on these

matters in limine and preserved error for appeal.

       The trial court concluded that, even if counsel performed deficiently,

“applicant did not suffer any prejudice therefrom given the facts of this offense”

(Finding 7). It also found that counsel objected to use of the term “victim” and

received a ruling that it was not improper (Finding 8). 2


       2
         The trial court cited a case holding that the State’s use of the term “victim” during jury
argument is not erroneous (Finding 9). This conclusion is irrelevant, as applicant challenged the
use of the term during testimony rather than argument.


                                                3
       The trial court’s finding that counsel made an objection to use of the term

“victim” that was overruled is not supported by the record. Counsel approached

the bench and said, “I guess it didn’t do any good to file a motion in limine

because they keep using the word victim victim victim” (7 R.R. 175). 3 The judge

responded that counsel had given him a case that did not “say it is improper” but

agreed to reread the case. Counsel commented about the use of the term “victim”

but did not preserve error for appeal because he did not make a motion in limine,

object, or obtain a ruling.

       The trial court refused to make findings and conclusions with regard to the

allegation that counsel performed deficiently in failing to impeach the key

prosecution witness with his prior statements to the police because it was not

included in the form habeas application (Finding 5). However, habeas counsel

immediately remedied this defect after he received the State’s answer by filing a

supplement to the application that included the issue. 4

       The trial court’s cursory conclusion that, even if counsel performed

deficiently with regard to these evidentiary matters, applicant did not suffer any


       3
         Counsel’s motion in limine sought only to exclude “victim impact evidence” during the
guilt/innocence stage (C.R. 32). It did not seek to prevent prosecutors and witnesses from
referring to the deceaseds as the victims during the testimony.
       4
         The district clerk sent the supplemental record to this Court on April 20, 2015. This
Court has not received the trial court’s order adopting the State’s proposed findings and
conclusions. Thus, it appears that the district clerk received the supplement to the application
before the trial court signed the order.


                                               4
prejudice lacks any legal analysis. For example, the law prohibits a detective from

providing his opinion in a murder case that the defendant did not act in self-

defense. It is difficult to understand how a defendant who relies on self-defense

has not been prejudiced when the detective testifies that he is “open-minded” and

will follow any lead in an effort to determine whether a suspect acted in self-

defense but did not see any evidence that appeared to be self-defense in this case.

The findings and conclusions fail to address the issues raised by applicant.

                                         III.

                  THE ERRONEOUS JURY INSTRUCTION

      Applicant contends that counsel performed deficiently in failing to object to

an incorrect instruction in the court’s charge that the jury had to acquit him of

capital murder before it could consider the lesser offenses of murder. The State

concedes that the instruction was incorrect and that counsel performed deficiently

in failing to object to it. State’s Answer at 25. The trial court concluded that, even

if counsel performed deficiently in failing to object, “applicant did not suffer any

prejudice therefrom given the facts of this offense” (Finding 7).

      The State contends that “there is no reasonable probability that, but for

counsel’s failure to object to the single sentence in the court’s charge, the result of

the proceeding would have been different.” State’s Answer at 26. The State




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conveniently ignores the prosecutor’s argument regarding this instruction (10 R.R.

22):

             Now, you will also see in the charge only if you find the
             defendant not guilty of capital murder do you then even
             consider the offenses of murder. You have to go through
             that first, ladies and gentlemen. If you find him guilty of
             capital murder, you don’t even consider those next two
             charges, okay, those next two paragraphs.

The trial court’s cursory conclusion that applicant did not suffer any prejudice

ignored the prosecutor’s emphasis of the erroneous instruction during summation.

                                        IV.

              CONSTITUTIONALITY OF THE STATUTORY
             PUNISHMENT SCHEME FOR CAPITAL MURDER

       Applicant contends that counsel performed deficiently in failing to challenge

the constitutionality of the statutory punishment scheme for capital murder as

applied, where it requires a sentence of death or life without parole for a defendant

who murdered two persons during the same transaction but also committed one or

both murders under the immediate influence of sudden passion arising from an

adequate cause.

       The trial court concluded that counsel did not perform deficiently in failing

to make this challenge because the evidence did not raise sudden passion arising

from an adequate cause (Findings 10-12). Applicant has explained in his brief why

it did. Applicant’s Brief at 23-24. Simply stated, a properly instructed jury could



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have found that the deceaseds and their companions started a brawl outside a club

that led to the fatal shootings.

                                         V.

                                   CONCLUSION

      This Court should reject the findings of fact and conclusions of law because

the trial court lacked jurisdiction to enter them. Assuming arguendo that the trial

court had jurisdiction, this Court should reject the findings of fact not supported by

the record and the erroneous legal conclusions, conduct a proper prejudice

analysis, and order a new trial.

                                                    Respectfully submitted,

                                                    /s/ Randy Schaffer
                                                    Randy Schaffer
                                                    State Bar No. 17724500

                                                    1301 McKinney, Suite 3100
                                                    Houston, Texas 77010
                                                    (713) 951-9555
                                                    (713) 951-9854 (facsimile
                                                    noguilt@swbell.net
                                                    Attorney for Applicant
                                                    JORGE GUTIERREZ




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                          CERTIFICATE OF SERVICE

      I served a copy of this document on Lisa Stewart, assistant district attorney for

Travis County, P.O. Box 1748, Austin, Texas 78767, by United States mail, postage

prepaid, on April ___, 2015, even though she did not timely serve a copy of the

State’s answer and proposed findings of fact and conclusions of law on me.



                                                   /s/ Randy Schaffer
                                                   Randy Schaffer




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