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CAUSE NO: 2008-CR-3999W-W2

s tires
Ex PARTE= @@*§j’j§¢’§{§§§§'§‘§‘£ IN THE DISTRICT coURT
` sit/aa county
3('
luis AUG 20 A H.¢ 2 -\
APPLICANT ~ EP€TY BEXAR coUNTY, TExAs

CARY ALLEN SIMMANG 144'1'.H ]UDICIAL DISTRICT

 

STATE’S RE'SPONSE TO APPLICANT'S PETITION
FOR WRIT OF HABEAS CORPUS

 

TO THE HONORABLE ]UDC~E OF SAID COURT:

Cornes noW the State of Texas by and through its Criminal District Attorney,
Nicholas ”_Nico" LaHood, and files this response to the Applicant’s Petition for Writ of
Habeas Corpus.

. I. I~Iabeas Writ Filed l

The Applicant Cary Allen Simmang filed this petition for a post-conviction Writ

of habeas corpus pursuant to art. 11_.07, § 3(a), Texas Code of Crirninal Procedure. The

State files this mandatory answer pursuant to art. 11.07 § 3(b).

  
   

II. Staternent of the Case \/\/KO /‘/§ .

The Applicant Wa£gvicted of the offense of Murder in Cause No, 2008-CR-

 

 

 

' 3999W and punishment Was assessed at confinement for 40 years. His petition for a Writ

of habeas corpus Was filed on August 3, 2015. The State Was served by the District
Clerl< of Bexar County on August 5, 2015.

III. State's General Denial
The State generally and specifically denies each and every allegation of fact made

by the Applicant and demands strict proof of same. §

C 0 N C L U S I 0 N
WHEREFORE, PREMISES CONSIDERED, the State Would ask that the trial court
enter an ORDER recommending the relief be denied.

Respectfully submitted,

NICHOLAS ”NICO” LAHOOD
Crirninal District Attorney
Bexar County, Texas

§PMW

DON
Ass tant Crirninal District Attorney
Bexar County, Texas
Paul Elizondo ToWer
101 W. Nueva
San Antonio, Texas 78205
SBN: 02880500
(210) 335-2418
(210) 335-2436-FAX

 

Attorneys for the State

CERTIFICATE OF SERVICE

I, ]ay Brandon, Assistant Criminal District Attorney, Bexar County, Texas, certify
that a true and correct copy of the foregoing response Will be mailed to Cary A e
Sirnrnang, Clements Unit, 9601 Spur 591, Arnarillo, Texas, 79107, on this th da;’$
August, 2015.

87
l

 

]AY' RA¢§l'boNv

1651

NO. 2008-CR-399QW-W2

EX PARTE § IN THE DISTRICT COURT
§ 227TH JUDICIAL DISTRICT
CARY ALLEN SIMMANG § BEXAR COUNTY, TEXAS
O R D E R

Applicant, Cary Allen Simmang, has filed a pro se application for post-conviction writ of
habeas corpus pursuant Article l l .07 of the Texas Code of Criminal Procedure, collaterally attacking
his conviction in cause number 2008-CR-3999W. (West 2014).

HISTORY OF THE CASE

On May 12, 2008, pursuant to a plea bargain agreement, Applicant pleaded nolo contendere
to two counts of injury to a child (causing serious mental impairment). On August 4, 2008,
Applicant was placed on deferred adjudication community supervision for a period often years and
fined $1,500. On May 20, 2009, the State moved to adjudicate guilt and revoke lSimmang's
community supervision after he failed to comply with the terms of his community supervision A
hearing was held on June 12, 2009. Applicant’s probation was revoked, and he was adjudicated
guilty and sentenced to forty years the Texas Department of Criminal~Justice - lnstitutional Division
and fined $1500. Applicant filed notice of appeal and on June 9, 2010, thel judgment of` the trial
court was affirmed (04~09-00563). Applicant’s petition for discretionary`review was refused and
mandate issued November 19, 2010.

Applicant’s first writ application was denied without a written order on the trial court’s
findings without a hearing on September 24,- 2014. (WR;81,987-0]). ~Applicant filed this second

writ application on August 3, 201_5.- A copy of this application was received by the District Attorney

on August5,2015. 5>//”%/% :#jj/

ALLEGATIONS OF APPLICANT

ln Ground One Applicant alleges that his rights to a “trial by jury and punishment” were
violated. He claims he did not sign a jury waiver and therefore his sentence is illegal. Applicant
asserts that the maximum sentence that could have been imposed was 5 years. He claims to have
found newly discovered evidence and asks that his sentence be corrected to 5 years and he be
released for time served.

In Ground Two Applicant claims there was a sentencing error. He asserts the maximum legal
sentence he should have received is 10 years.

In Ground Three Applicant asserts “motion for mistrial/time served.” He claims the court
committed error when un-negotiated terms were added to the plea bargain

In Ground Four Applicant alleges ineffective assistance of counsel. He claims counsel’s blind
acceptance of plea practices in the district courts shows harm and prejudice towards Applicant.
Applicant asserts the maximum sentence imposed should have been 5 years.

In Ground Five Applicant asserts “void punishment.” Applicant claims he was entitled to have
a jury assess his punishment He claims the sentence is void because the punishment was not
authorized

ln Ground Six Applicant alleges prosecutorial misconduct in the sentencing stage of the trial.
He claims the prosecution failed to understand the proper punishment range fixed by the Legislature,
causing the judge to enter a void judgment beyond the maximum of 5 years.

In Ground Seven Applicant alleges minimum sentencing was violated. He claims the
agreement was for 10 years community supervision and therefore the maximum Sentence should not
have exceeded 10 years imprisonment

ln Ground Eight Applicant alleges a violation of the procedural rule of sentencing

In Ground Nine Applicant asserts he is entitled to a new sentencing hearing because due
process was violated. He claims his sentence is illegal because his punishment exceeds that set by
the Legislature.

FINDINGS OF FACT AND`CONCLUSIONS OF LAW

1. At the outset, this Court believes that Applicant’s writ application does not strictly comply
with the Texas Rule of Appellate Procedure 73.1. Therefore, the Texas Court of Criminal
Appeals may choose to dismiss the application for that reason.

2. However', to the extent the merits of the application are going to be addressed, this Court
makes the following findings and conclusions

3. Applicant’s first writ application was denied by the Court of Cn`minal Appeals on September
24, 2014. (WR-81,98 7-0]). The trial court’s recommendation in the first writ application
was made after an assessment of the merits of the application The denial without a hearing
by the Court of Criminal Appeals was based upon the trial court’s findings

4. This Court does not have jurisdiction to consider the merits of a subsequent application for
writ of habeas corpus unless the application contains sufficient specific facts establishing that
(1) the current claims and issues have not been and could not have been presented previously
in an original application or~-in a previously considered"application filed under this article
because the factual or legal basis for the claim was unavailable on the date the applicant filed
the previous application; or (2) by a preponderance of the evidence, but for a violation of the
United States Constitution no rational juror could have found the applicant guilty beyond a
reasonable doubt. TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(1) (West 2012).

5. A factual basis of a claim is “unavailable” under Subsection (a)(l) “if the factual basis

was not ascertainable through the exercise of reasonable diligence on or before that date,”

and reasonable diligence “suggests at least some kind of inquiry has been made into the
matter of the issue.” Ex parte Lemke, 13 S.W.3d 791, 794 (Tex.Crim.App.ZOOO).

The trial court cannot discern the “new evidence” Applicant is claiming that Would entitle
him to relief on this second writ application

Moreover, the court finds that Applicant has failed to raise any “new evidence” that supports
relief in this case. The Court of Criminal Appeals has held that “When an applicant asserts a
Herrera-type [actual innocence] claim based on newly discovered evidence, the evidence
presented must constitute affirmative evidence of the applicants innocence.” Ex parte
Franklz`n, 72 S.W.3d 671 , 678 (Tex.Crim.App.ZOOZ). The court finds that Applicant has not
met his burden of presenting newly discovered affirmative evidence of his innocence
This Court finds that Applicant’s allegations in this writ application could have been
presented in his previously filed writ application Therefore, Applicant is not entitled to
relief on this second writ application TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(l) (West
2014)

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended

that this application be DISMISSED.

0 R D E R S
The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this
document, together with any attachments and forward the same to the following persons by mail or
the most practical means: l

a. The Court of Criminal Appeals
Austin, Texas 78711

b. Nicholas LaHood
Criminal District Attorney
Paul Eli.zondo Tower
Bexar County, Texas 78205

c. Cary Allen Simmang
TDCJ No. 01580666
Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606

~i . _

. _ ; - \ \. \ f

sIGNED, oRDERED and DECREED On … i (t, § 0 l l
. \\ s'\ 1

1 jailer ii let ft

" JUDGE KEVIN M. o’coNNELL
227TH Judicial District Court
Bexar CQunt-y, Texas

 

