                                                                        WR-47,593-02
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 3/10/2015 2:53:04 PM
                       No. WR-47,593-02                  Accepted 3/10/2015 3:30:22 PM
                                                                           ABEL ACOSTA
                                                                                   CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                                                             RECEIVED
                                                      COURT OF CRIMINAL APPEALS
                                                             3/10/2015
             Ex parte Randal Franklin Caraway           ABEL ACOSTA, CLERK
                               Applicant
 Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case
   Number 19072B, from the 91st District Court of Eastland County


       Notice of Filing Objections and
       Request for Stay in Proceedings
        Pending Resolution of Issues
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
     COMES NOW, Randal Franklin Caraway, Applicant in the
above styled and numbered cause, by and through John G.
Jasuta, his undersigned lead counsel, and respectfully files this
“Notice of Filing Objections and Request for Stay in Proceedings
Pending Resolution of Issues,” and would show the Court that on
August 8, 2014, the convicting court entered its findings of fact
and conclusions of law, which were subsequently forwarded to this
Court by the District Clerk of Eastland County and received by the
Clerk of this Court on August 15, 2014. Applicant would show the
Court that the findings and conclusions at issue are not supported
by the habeas record and fail to properly apply the law relating to

the allegations made and the evidence proffered.
    On March 10, 2015, Applicant filed his objections to the
habeas court’s Findings of Fact and Conclusions of Law in that
court.   A true and correct copy of Applicant’s objections are
attached as Exhibit “A” to this document.

                             Prayer
    WHEREFORE PREMISES CONSIDERED, Appellant prays this
Honorable Court to grant this request in all things and stay all
proceedings in this Court pending the convicting court’s resolution
of his objections. Additionally, in the event that the convicting
court refuses to withdraw its findings and conclusions, the
undersigned requests the Court to consider his objections when
ruling on the merits of this case.
                            Respectfully submitted,


                            ____________________________________
                            John G. Jasuta
                            Attorney at Law
                            Post Office Box 783
                            Austin, Texas 78767-0783
                            eMail: lawyer1@johngjasuta.com
                            Tel. 512-474-4747
                            Fax: 512-532-6282
                            State Bar No. 10592300

                            Attorney for Randal Franklin Caraway
            Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X6 software, contains 317 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

March 10, 2015, a true and correct copy of the above and

foregoing “Notice of Filing Objections and Request for Stay in

Proceedings Pending Resolution of Issues” was transmitted via the

eService function on the State’s eFiling portal, to John R. Saringer

(saringer@wagstafflaw.com), attorney pro tem, counsel for the State

of Texas.



                             ______________________________________
                             John G. Jasuta
Exhibit “A”
                              No. 19072B
              Court of Criminal Appeals No. WR-47,593-02

EX PARTE                            §    IN THE DISTRICT COURT
                                    §    EASTLAND COUNTY, TEXAS
RANDAL FRANKLIN CARAWAY             §    91ST JUDICIAL DISTRICT


     Applicant’s Objections to the Habeas Court’s
     Findings, Conclusions and Recommendations

TO THE HONORABLE JUDGE OF SAID COURT:

     COMES NOW, Randal Franklin Caraway, Applicant, by and through

his attorneys, John G. Jasuta and David A. Schulman, and respectfully files

these objections to the to Habeas Court’s findings, conclusions and

recommendations, and would show the Court:

                                     I

     Applicant filed an application for a writ of habeas corpus in Cause

Number 19072B, in this Court, on June 14, 2014. The application was

transferred to the Court of Criminal Appeals, received on July 11, 2014 and

docketed as indicated above. On August 15, 2014, a Supplemental Clerk’s

Record was received at the Court of Criminal Appeals containing the habeas

court’s Findings of Fact and Conclusions of Law, which had been signed by

the habeas court on August 8, 2014, to which Applicant objects as set out

herein:

                Applicant’s General Objection
     The habeas court was without jurisdiction to enter the Findings and

Order which it entered on August 8, 2014. As set out above, the application
had been filed in the habeas court on June 14, 2014. The law states, in

pertinent part:
     (c) Within 20 days of the expiration of the time in which the state is allowed
     to answer, it shall be the duty of the convicting court to decide whether
     there are controverted, previously unresolved facts material to the legality
     of the applicant's confinement. Confinement means confinement for any
     offense or any collateral consequence resulting from the conviction that
     is the basis of the instant habeas corpus. If the convicting court decides that
     there are no such issues, the clerk shall immediately transmit to the Court
     of Criminal Appeals a copy of the application, any answers filed, and a
     certificate reciting the date upon which that finding was made. Failure of
     the court to act within the allowed 20 days shall constitute such a finding.
Article 11.07, § 3(c), C.Cr.P. A failure to act within the statutorily allowed

time period constitutes a finding that there are no controverted, previously

unresolved facts material to the legality of the applicant’s confinement.

There is no provision for the habeas court to extend the time in which it

might act other than that set out in the statute. Article 11.07 § 3(d), C.Cr.P.

The findings entered by the habeas court in this case were not entered

within the statutorily allowed time period.

     The application was filed in the District Clerk’s office on June 14,

2014. That official then was required, by Article 11.07, § 3(b), C.Cr.P., to:
     forward a copy of the application by certified mail, return receipt
     requested, by secure electronic mail, or by personal service to the attorney
     representing the state in that court, who shall answer the application not
     later than the 15th day after the date the copy of the application is received.
Obviously, since the State filed its answer on June 19, 2014, the State

received notice at some time prior thereto. Given the date, however, the

habeas corpus court’s time frame in which to answer began not later than

July 4, 2015. Twenty days later, July 24, 2014, the habeas court ran out

of time in which to act and, by statute, a finding as set out above was

                                           2
entered, by operation of law. Thus, the habeas court’s action in entering

the findings and recommendation was done without jurisdiction.

     As required by Article 11.07, § 3(c), not later than July 25, 2014, the

District Clerk had a ministerial function to transmit the record to the Court

of Criminal Appeals:
     If the convicting court decides that there are no such issues, the clerk shall
     immediately transmit to the Court of Criminal Appeals a copy of the
     application, any answers filed, and a certificate reciting the date upon
     which that finding was made. Failure of the court to act within the allowed
     20 days shall constitute such a finding.
This was not done. Instead, the habeas court acted outside of the statutory

time in which it could act and, in so doing, violated the statute and entered

the findings without authority to do so. Accordingly, the habeas court’s

findings are void.

     Additionally, Applicant generally objects to the Findings in their

entirety as being without substance. The habeas court failed to discuss in

detail the evidence proffered by Applicant, instead dismissing it by

incorrectly characterizing it, especially in the case of the affidavits of

medical experts, including the expert who testified at this trial and who now

characterizes the evidence he gave as unsupportable by modern medical

protocols and, therefore, incorrect. The habeas court has engaged in a

pattern of avoidance which calls into question the entirety of the document

as it is nothing more than a “Potemkin village, which may be pointed out to

passers-by as a monument to the importance of adhering to precedent,”1


1
  See Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833,
966 (1992).

                                           3
standing without any substance whatsoever. As such, the findings, in their

entirety, must be rejected.

                 Applicant’s Specific Objections
  1. Applicant objects to the finding as to the habeas court’s resolution of
     Ground One as it is based entirely on credibility choices without
     confrontation. A comparison of affidavits does nothing more than
     create a fact issue but, without unsupported assumptions, that
     comparison cannot resolve those issues. Jenkin’s affidavit recants his
     trial testimony and controverts Applicant’s false confession, and was
     made against penal interest. None of these factors were mentioned.
     Applicant objects to this finding because it is, therefore, incomplete.
     The finding does not in any manner state its bases other than, by
     implication, an unsupported assumption.

 2. Applicant objects to the Finding as to the habeas court’s resolution of
    Ground Two because it is incomplete at best. It ignores the fact that
    Dr. Peerwani, in his affidavit of July 31, 2013, states that he would be
    unable to classify the death as a homicide, which is directly
    contradictory of his autopsy report and his testimony. In light of this
    direct contradiction, which contradiction goes to the very heart of the
    case presented by the State, to find that Dr. Peerwani’s “trial
    testimony is entirely consistent with his most recent affidavit”2 ignores
    the contents of the very affidavit this Court has found consistent. This
    failure to grapple with Dr. Peerwani’s 180 degree turn, or the medical
    evidence from other experts in the field, all based on new medical
    protocols designed to protect forensic evidence from the very
    influences present in this case, causes this finding to be incomplete
    and unsupportable.

  3. Applicant also objects to the habeas court’s Finding on Ground Two
     as it fails to address the demonstration that the cause of death was
     suggested to Dr. Peerwani by law enforcement officers. It also neglects
     to consider or evaluate the ancillary harm caused by the erroneous
     testimony as to cause of death which allowed the State to demonstrate


 2
     There has only been one affidavit submitted by Dr. Peerwani, unless there are
additional documents which have not been produced. Thus, there is no “most recent”
affidavit.

                                        4
    methods of strangulation to the jury, and to discuss how long
    strangulation would have taken. The cursory review evidenced by this
    Finding is evident from the failure to confront and discuss the
    evidence presented and demonstrates the extent of the incompleteness
    of the Finding.

4. Applicant objects to the habeas court’s Finding in Ground Three as
   woefully inadequate and incomplete. While the Finding does mention
   that Applicant has raised four distinct Brady allegations, the Finding,
   that the evidence withheld was “either not favorable” or would not
   have “affected the outcome of the trial,” lacks any distinction or
   specificity. Applicant would show that:

    a.   He cannot discern whether this is a finding that a witness who
         would have testified that the deceased was seen alive after the
         time that she was allegedly murdered by Applicant was not
         favorable to Applicant.

    b.   He also cannot determine whether this is a finding that such a
         witness would not have affected the outcome. In either event,
         the “finding” does not find the evidence proffered to be untrue, so
         is it a finding that the State did, indeed, secret evidence?

    c.   He also cannot determine whether this is showing that the very
         witness upon whom the State would rely to show Applicant to be
         the last one to see the deceased alive had altered her story and
         added that very part was not favorable or was it, also, not likely
         to affect the outcome?

    d.   This Finding is, in reality, no finding at all as it fails in any
         manner to address the contentions raised and shown by
         Applicant. It is incomplete to the point of worthlessness.

5. Applicant objects to the habeas court’s Finding as to Ground Four, the
   Schlup v. Delo claim, because it is absolutely unsupportable. Dr.
   Peerwani clearly, without regard to the previous erroneous finding
   relating to his only affidavit regarding his conclusions, stated that the
   evidence he gave before the jury was incorrect and that the cause and
   manner of death could not be determined. He could not testify that a
   murder occurred at all and could not testify that the manner of the
   death was manual strangulation. This fact alone, presentation of false

                                    5
     evidence, perhaps suggested by law enforcement to some degree,
     demonstrates a violation of constitutional rights as well as actual
     innocence because, notwithstanding the assumptions made in the
     findings overall, demonstrates an entitlement to relief pursuant to
     both Article 11.073 , C.Cr.P., as well as Schlup. Additionally, the
     overall effect of the incomplete finding, both as to this ground and as
     to the others, is that the lack of completion leaves many controverted
     and unresolved issues in that very posture.

 6. Applicant objects to the habeas court’s Finding as to Ground Five, the
    claim pursuant to Ex parte Henderson, as, once again, incomplete
    and unsupported. The entirety of this finding is that “Applicant has
    failed in his burden to demonstrate actual innocence.” This wholly
    neglects evidence showing the deceased to be alive after that time
    Applicant allegedly killed her, it neglects evidence showing that, under
    modern medical protocols, no finding of homicide could be made and
    no determination of the manner of death was possible, as well as new
    evidence showing the evidence given to the jury by the expert witness
    who testified for the State, was erroneous. Instead of grappling with
    the evidence shown, the finding, as all the others, merely dismisses
    the contentions without addressing them in any meaningful manner.

                                 Prayer
     WHEREFORE, PREMISES CONSIDERED, Applicant, Randal Franklin

Caraway, respectfully prays that the habeas court will withdraw its findings

of fact as (1) being made without jurisdiction, (2) unsupported by stated

evaluations of the evidence, and (3) based on mischaracterization of the

evidence proffered by Applicant, and instead find (a) that Applicant has

demonstrated that newly available evidence would call into question the

commission of any crime whatsoever and that Applicant was deprived of his

constitutional rights as enumerated.




                                     6
                           Respectfully submitted,



__________________________________         ____________________________________
John G. Jasuta                             David A. Schulman
Attorney at Law                            Attorney at Law
Post Office Box 783                        Office Box 783
Austin, Texas 78767-0783                   Austin, Texas 78767-0783
eMail: lawyer1@johngjasuta.com             zdrdavida@davidschulman.com
Tel. 512-474-4747                          Tel. 512-474-4747
Fax: 512-532-6282                          Fax: 512-532-6282

State Bar No. 10592300                     State Bar Card No. 17833400

                           Attorneys for Applicant

           Certificate of Compliance and Delivery
     This is to certify that: (1) this document, created using WordPerfect™
X6 software, contains 1,905 words, excluding those items permitted by Rule
9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3),
Tex.R.App.Pro.; and (2) on March 9, 2015, a true and correct copy of the
above and foregoing “Applicant’s Objections to the Habeas Court’s Findings,
Conclusions and Recommendations” was transmitted via electronic mail
(eMail) to John R. Saringer (saringer@wagstafflaw.com), attorney pro tem,
counsel for the State of Texas.



                                  _______________________________________
                                  John G. Jasuta




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