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IN THE 213TH JUDICIAL DISTRICT COURT OF
TARRANT COUNTY, TEXAS ' ,

Ex PARTE cAUsE No. c-213_009855-1188050;B

RETURNABLE TO THE COURT OF CRIMINAL

Q??’-"»’!<M@¢m<m

MARTIN HENRIQUEZ APPEALS OF TEXAS, AT AUSTIN.

CEUTETIONS TO THE COURT'S FINDINGS OF
FACT AND OONCLUSIONS OF LAW

Martin Henriquez v("Applicant") filed a writ of habeas corpus in the
above-named Court. Following the State's proposed findings of fact and conclu-
sions of law, the Court recommended- that relief be denied. Applicant now
objects to the Court's recommendation. See Court's July l3, 2015, order.

l. Objection to the Court' s findings on grounds one through four, seven
and eight:

With the exception of grounds five and six the Court has failed to

make independent findings on each of Applicant's grounds for relief, instead
deferring to counsel's opinion and strategy. The presumption of reasonable
trial strategy `is at its strongest on direct appeal when the record cannot
be aeveiopea. 'Ex PARTE. TORRES, 943 s.w.zd 469, 475(Tex.crim.App.1997).
a collateral proceeding, and in making an assessment on whether or not counsel
rendered deficient performance, the Court must first determine whether the
claimed deficiencies, involving constitutional and statutory provisions,
'did or did not occur.

For example, if counsel ‘failed to object to hearsay testimony, the
Court must first determine whether or not the testimony was infact hearsay.'
STRICKLAND V. WASHINGTON, 466 U.S. 668, 687(1984). The reviewing Court could
dispense with the performance prong of Strickland's two prong analysis only

if it determines that, even if true, the habeas applicant was not prejudiced

by counsel's failure to object. Id. at 697. If it is e W§§%E|R£.My AF],}§EALS

JUL 31 2035

 

Ables mem mem

a reasonable probabilityl that the habeas Applicant was prejudiced then the
Court must make an unequivocal finding on the underlyimgclaimaddeficiency;»In
such a situation it is never proper for the Court to simply accept_counselis
explanation that "it was my opinion based on my strategy," Id. at 691: Counsel
must conduct reasonable investigations or make a reasonable "decision" that
makes particular investigations unnecessary. It- is not enough for counsel
"to say" that it was his opinion [or decision] to take or not to take a parti-
cular 'course of action. _Counsel must articulate in a collateral proceeding
what his strategy was. For example, in the above example involving hearsay
testimony, counsel must either demonstrate that the testimony was not hearsay,
or he must explain` why -he believed that it would be beneficial to forego
objecting to the admission of such. The reviewing Court must then determine
if counsel's conduct was reasonablel under prevailing professional norms.
Id. at 686. Regarding grounds one through four, seven and eight, the Trial
[habeas] Court failed to make’ independent findings, instead deferring to
counsel's unarticulated opinion and strategy. This writ application should
be remanded for an evidentiary hearing. ,

2. Objection to the Court's findings on grounds five and six:

Regarding Applicant's ground five: In his June 25, ZOl3, affidavit
counsel said ,"Based upon my review of the indictment, experience and trial
strategy, counsel did not see any reason to file such motions"(sic).

,In support of counsel's assertions,'ddaState; relying on ALBA V. STATE,
905 S.W.Zd 581; 585(Tex.Crim.App¢l995), believed that indecency with a child
("IWC") is merely an aggravating feature of continuous sexual abuse of a
child ("CSAC");' and therefore thatb 'UY§ indictment need not set forth the
elements of IWC. The State misapplies ALBA.'

Applicant first notes that ALBA spoke to the enhancing features of

l

an lunderlying offense used to elevate-specifically¥-the offense of "murder"`
to "capitol murder." IWC is not an “aggravating element" of CSAC. IWC (i.e.,
the offenses listed under Texas Penal Code §Zl.ll) is a specific actus reus
element of CSAC. In other words, a finding by the jury in Applicant's case
that 'Applicant did 'not commit IWC against one of the two alleged victims
would have resulted in an[`acquittal on the charge of CSAC.Cbnversely,in`

ALBA a finding by the jury that ALBA had not committed (or attempted to

commit) the underlying burglary would have left intact the offense of murder.
Counsel's experience and strategy will never trump reality.

In JACOBSEN V. STATE, 325 S.W.3d 733, 736(App. 3 Dist. 2010), a case
involving CSAC, the indictment read, in pertinent part:
[Jacobsen]..."during 'a period that was 30 days or more in dura-
tion, committed two or more acts of sexual abuse, said acts
of sexual abuse having been violations of one or more of the
following Penal laws,l namely: indecency with a child, namely,
by touching any part of the genitals of [K.A.K.]...indecency

with a child, namely} by touching any part of the genitals
of [J.D.]."

Note» that "touching the genitals" is one of the many offenses listed
under §Zl.ll of the Texas Penal`Code`("TPC").

This claim concerns the efficacy of the indictment, not the charge
to the jury. As argued in `Applicant's supporting Memorandum (at 23), it is
n not sufficient to say that the accused knew with what offense he was charged;
the inquiry must be whether the charge [indictment], in writing, furnished
that information in` plain and intelligible language. Id. As noted in Appli-
cant's Memorandum, §Zl.ll of the TPC contains many offenses-enot many ways
to commit the same offense; Constitutionally sufficient notice entails setting
forth [again, in the indictmentj the elements of the charged offense; in

this case, the exact offense or offenses charged under §Zl.ll.

Regarding ground six: Neither counsel nor the State has given an ap-
propriate`response'explaining why it is permissible for the indictment (again,
not the jury charge) to omit the requirements of intent. Applicant submits
that, the omission of the language "with the intent to arouse or gratify
the sexual desire of," in this case, the defendant, resulted in an indictment
that failed to charge an offense. WESLEY'V, STATE, 548 S.W.Zd 37(Tex.Crim.App.
1977): Failure to specifically allege that the sexual conduct occurred with
"the intent 'UJ arouse or_gratify the sexual desire of any person constitutes
reversible error, regardless of whether a motion to quash is filed." And
see STUDER -v. STATE, 799 S.W.Zd 263; 272-73(Tex.Crim.App. 1990); Indictment
and information are sufficient...lest they fail as charging instruments...;"

In order to sustain a conviction for CSAC in Applicant's case, the
jury had to find that Applicant committed the act of IWC against each victim.
Because Applicant's indictment only charged him (under TPC §21.02) with "IWC"
against veach victim, the jury, specific to Applicant's case, had to be unani-
mous as to each charge and as to the actus reus elements of each charge.
ln order to meet the requirements of notice (Texas Code of Criminal Procedure
Article 21.03) the State was required to plead, in the indictment, ."how"
Applicant committed the offense(S) of IWC. Because TPC SZl.ll (a)(l)(referen-
cing TPC §Zl.QZ[Z]) criminalizes threeJ separate' types of conduct, then, as
in Jacobsen,' supra, the State could have charged Applicant with three counts
of IWC against each alleged victim.-See, for example, PIZZO V. STATE, 235
-S.W.3d 7ll, 717-18- (Tex;Crim.App;2007). Under TPC §21.ll (a)(Z)(A)&(B), the
Statev could have also charged Applicant with two different offenses of inde-
cent exposure. In all, the State could have charged Applicant with five(5)
different `offenses under the IWC statute (§21.11). lnstead, leaving Applicant

(and his attorney) to guess at the indictment's meaning, the State obliquely

charged 'Applicant with IWC, without including any of the elements for any
of the offenses under §21.ll.

It is irrelevant that the charge to the jury instructed the jury on
all possible scenerios under §Zl.ll; “notice" does not come from the court's
charge to the jury, it comes from the face of the indictment. RINEY V. STATE,
28 s.w.3d 561, 565(Tex.crim..App.2000'). And see cURRY v. sTATE, 30 s.w.3d
394, 398(Tex.Crim.App.2000)(When statute defines manner or means of commis-
sion in several alternative ways, indictment will fail for lack of specificity
if it neglects to identify which of the statutory means it addresses;).

Referring again to JACOBSEN V§ STATE, 325 S.W.3d13b736; Jacobsen was
charged [in the indictment] with three different offenses against each victim.
The elements[for each offense] were set forth in the indictment; hence, there
was sufficient notice of the offenses charged. Again, in Applicant's indict-
ment the State merely alleged that Applicant.committed the offense of indecen-
cy with a child, without alleging "how." The State was free to argue any
theory under the sun; i.e., any of the offenses listed under §Zl.ll of the
TPC.

In 'light of `the circumstances a challenge to the indictment would
'have been sustained; consequently, counsel's explanation is not entitled

`to the deference embodied within Strickland [v. Washington, 466 U.S.zN;690].

3. Conclusion:
Applicant is 4entitled to a new trial. At the very least; because the

trial [habeas] court made no independent findings of fact, Applicant should

be granted an evidentiary hearing.

Martin Henri%> ? 'Z §/’/§ # /éz SOZZ', .
iel Unit: 938 S. Fm 1673

Snyder, Texas 79549

 

CERTIFICATE OF RECEIPT/CERTIFICATE OF SERVICE

I, Martin Henriquez, TDCJ-ID number 1626022, certify and declare that I re-
ceived the 213th District Court' sorder, recommending that relief be denied on
my habeas corpus application, on July 22nd, 2015. In accordance with TRAP 73. 4
(b)(Z) l had ten days to object to the Court' s order. Because the tenth day
fell on a Saturday (August lst, 2015), I had until the following business day,
i. e., August 3rd, 2015, to get my objections filed. `

I further certify that ANA( /(!&7"/1¢€/¢/1€ f{/¢/’l+/HA LH of the Swedish con-
sulate hand delivered a copy of my objections to the District Attorney and the
District Clerk at 401 West Belknap, Ft. Worth, Texas 76196; and mailed a copy
of the same to the Court'of Criminal Appeals offTexas at PzO. BOX~12398; Capi+
tol Station, Austin,Texas 78711.

 

W raw

 

CONSULATE OF SWEDEN

 

To whom it concern

Ref. OBJECT|ONS TO THE COURT’S F|ND|NGS OF FACTS AND CONCLUS|ONS OF LAW

,Applicant: Martin Henriquez Cause No. C-213-009855-1188050-B
TDCJ # 01626022 WR|T 009855 - Citizen of Sweden DOB 07/02/1962

On behalf of Mr. Henriquez l am fonNarding the letter of OBJECT|ONS dated July 24, 2015.

The deadline for the letters of OBJECT|ONS is to arrive to the Court within 10 days of the order.
ln this case the tenth days falls on a Saturday, August 13'; therefore the deadline is the next
business day; i.e., August the 3'°.

A copy of the OBJECT|ONS letter has been sent to the Embassy of Sweden in Washington
D.C., and will be reported to the Foreign Ministry in Sweden.

Dallas, Texas July 30, 2015

   
 

Sincerely,

 

A:n - Kathrine Tina K|intmalrn v
Vice Consul, Consulate of Sweden, Dallas RECE\VED lN S
dallas@consulateofsweden.org. COURT OF CR‘M\NAL APPEAL
Off : 214-521-2312 M b'l : 214-707-0200
'°e ° 'e Jul_ 31 2015
Abei Accsta, Clerk

 

3808 l\/liramar Avenue, Da||as, lean 75205
Telephone: 214-521~2312 Ce|l: 214-707-0200 Fax: 214-522-0148
Emai|: viceconsu|.da|las@gmail.com or dallas@consulateofsweden.org

