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Writ No. 2\.)19~~71€77# 1200

Ex Parte: _In The 265th
iTrOY N?al Hooper Judicial Court

Dallas Co. Texas .......

&O?¢O’JCOO¢O>

APPLICANTS RESPONSE
TO'STATE
ON WRIT OF HABEAS CORPUS .....
y I

History of Case .....
A jury found applicant(myself), guilty of the offemse of Delivery of a Controled
Substance in aggregate amount of one(l)gram or morel including adulterants and
dilutants ..... State used a previous conviction for the offence of Theft from
person to enhance range of punishment, from which jury sentenced me to lSyrs.
confinement in T.D.C.J. and $2,50©.0Q“fine.....Motion for new trial was made

citing verdict being contrary to law and evidence(CR#lO€-107)and was not responded

to ..... Fifth Court of Appeals affirmed conviction and sentence ..... I filed writ
of Habeas Corpus and recieved States response on October 27th, 2015 ..... ,
II

STATES RESPONSE ,

/

. _ `l".,'»`_._.~. ‘ '
State attempts to make relevant, rulingsra$moupg.suf

/

ficiency of evidence,

. . "/' éf;r \. . . .
entrapment,issues reserved for direct appeai,andlgarfzsuyrmedia time requirements

regarding enhancements....

Cc)

\ I II
APPLICANT" S RESPONSE .....

z

Conviction_contrary to law and evidence in

a ‘. ...~ "
`.:.‘ .-‘ `/~ \ '

iv.§,tate".s response to grounds raised in this application, deliberatly sidesteps~`
the evidence and relevant issues and argues points that are not related ......
State's response to grounds #1&2 ignores facts that convictions based on evidence
which is contrary to law and evidence are unconstitutional, and are not autorized
(App.PR.art.Zl.B(h))and are required to be reversed(Tx.R.App.Pr.art.44.2) .....
State argues that challenges to the sufficiency of evidence are not cognizable
in post conviction Hebeas proceedings and cites: Ex Parte Grisby l37sw3d 673/674...
My first response to this rest in fact that:(l)Motion for New Trial was dulyi
filed in this case pursuant to Tx.R.App.Pr.art.Zl.3 citing verdict being contrary
to law and evidence(CR#lOG¥lO7) ..... This was denied by-non-response(Tx.R.App.Pr.-
art.21.8(c))and was brought to the attention of the court in appellate brief(pg.m.
l&2)prepared by appointed counsel Julie Woods ...... Though no issue was argued
by counsel regarding this matter, this matter involves plain error appearant
from the‘qpeUaUe record ..... The Rules of Appellate Procedure makes appearant
the Court of Appeals obligation to review the record on appeal for defects or
errors which would render conviction or sentence uhcohstitutionale and expressly
holds that:" ..... if the appellate record in a criminal case reveals constitutional

error, which is subject to harmless error review,jThe Court of Appeals must reverse

judgement of conviction(Tx.R.App.Pr.art.44.2(a)).....(2)Grisby is not applicable

in matters where findings of guilt are contrary to law and evidence ..... Ajudge

ment or conviction which contrary to law and evidence cannot be supported by any
legal basis or lawfully enforced to any degree ..... Discharge from such unlawful
confinement can be sought at anytime by Hebeas relief..¢..(Preiser V. Rodriguez,-
411U.S.475,485) d

Ex Parte Beck,9225w2d lSl,lBZ(quoting Heath V. St.817 Sw2d 335,336)Ex Parte Mclver,-
586$w2d 851,854)Tx.C.Cr.Pr-art.44.25) ...... Grounds #l§Z, should not be denied

based on evidence or State response ......

(2)

Evidence Illegaly Obtained

 

State's response to ground #3 misrepresents issues raised and attempts to make

it appear as if I have claimed evidence at issue was obtained by means of entrapment..
I have not at anytime made claims that evidence was obtained by means of entrap-
ment, or that I was ever in contact with officers in this case ..... Ground #3
argues clearly that based on the testimony of both officers, the methods by

which they claim to have obtained evidence at issues was in violation of law..

As it was evidenced in the trial record police admitted that they induced a person
not engaged in crime to commit a criminal action in order to obtain the evidence

at issue(RRV4p93,94,64) ..... My argument in ground #3 addresses fact that ,(l)~
police are prohibitted from inducing those not engaged in crime to commit crimminal
acts to obtain evidence(Tx.P.C.art7;02(a)dTat§;V. St.393 Sw2d 760/765) ..... (2)

law prohibits evidence which has been obtained in violation of law to be presented
against the accused at trial(Tx.C.Cr.Pr.art.38.23) ..... Where conviction is based on
evidence which was unlawfully presented, that Conviction is contrary to law...

Ground #3 should not be denied based on evidence or States response....

Incomplete Reporters Record .....
States response to ground #4 ignores the fact that State law requires New-trial
`where any part of Reporters record which is significant to appeal reslution is
lost from record(Tx.R.App.art.34.6(£)).....Since there was objection regarding
the chain of custody of the evidence at issue, which was over ruled in trial and
was filed with the Court of Appeals in trial record(RRV4p9.lO,ll,)and there was
‘motion for new trial citing verdict being contrary to law and evidence, Court
of Appeals had obligation to review that matter so to determine if that part of
trial was carried out in accord with law(Tx.R.App.Pr.art.44.2(a)) .....
Illustated record of the chain of custody was therefore significant to appeal.

resolution, and the Court of Appeals erred in not ordering new trial seeing that

('§)

record.was without it ..... In light of these circumstances, and in accord with

Tx.R.App.Pr.,at minium I am entitled to New Trial in the matter of ground #4..

Ground #4 should not be deined based on evidence or State's response .......
ENHANCEMENT
State's response to ground #5 also misrepresents issue raised ...... State makes

it appear as if I am claiming Theft from Person is not currently recognized as

an offense ..... However ground #5 clearly raises the issues that Theft from Person
is not currently recognized as a third degree felony.under current Penal code,

and that-current en hancement code only affects penal laws in effect after its
effective date (TX.P.C.art.lZ.Ol(b))...¢.Penal laws active after this effective
date(September lst,1994) classify Theft from Person as a.State jail felony for
enhancement purposes(Tx;P.C.art.3l.02,31.03sect.4(b)y ..... There is no enhancement
provision under current code which provides for theft"from Person as a third
degree felony.-...

Ground # 5 should not be deined based on evidence or States response .........

Conclusion
In accord with law I am within my right to seek relief in this application for
writ of Habeas Corpus..... I respectfully request that this court consider this
application based on the actual issues evidence and facts, rathe than merely

on States response .....

Respectfully

 

 

‘\

#1897543

Michael Unit
2664FM2054
Tennessee Colony,Texas,75886

/0/ 31 /2@¢§' 649

CERTIFICATE OF COMPLIANCE

 

I certify that this response is in accord with the Tx.R.App.Pr.art.9.4(i)(l)(2)......

TROY N. HOOPER

 

`( 59

 

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