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lN THE

COURT OF CRlMlNAL APPEALS

AUSTIN, TEXAS RECE|VED|N
COURT OF CRIM|NALAPPEALS
EX“PARTE § FROM THE 338tn g§§i§f%n?015
JERMAINE DEwiTi‘ cHANEY § n COURT, HARRISR@@UMSHF§}§U
APPLICANT § cause No. 1113820-A

APPLICANT'S REBUTTAL TO THE STATE'S
ANSWER TO APPLICANT'S WRIT OF HABEAS CORPUS'

Comes now Jermaine Dewitt Chaney pro-se applicant in the above numbered _
cause and files this rebuttal to the State's procedurally barred answer and will
show in support thereof the following. 4

l

The applicant's post-conviction application for writ of Habeas Corpus was filed
in the 338th District Court Harris; County, Texas on May 11, 2015. See: (Exhibit
notifiootion ny norris county niotr'iot ciork). on Moy ~zot‘n, 2015 the state filed
a Motion, requesting the designation of issues of the applicant's Actual innocence
needed to be resolved. See: (Exhibit, Appendix). On May 22. 2015 the trial adopted

the State's proposed order and designated the issue of the applicant's Actual
Innocence cladn. See: (Exhibit, Appendix).
The applicant asserts that the State has now attempted to file a procedurally
barred answer to the applicant's claim, denying the applicant'S grounds for relief
on the 26th_of June, 2015. Fourty-six (46) days after the applicant's post~con-
viction writ was filed. And thirty-four (34) days after the trial court designated
the issue of applicant's Actual lnnocence. Therefore, the State's attempt to file

such an answer should be denied and any such filing stricken from the record

pursuant to 11.07 (3) (b).

(l)

/

" The attOrUey repre$€nting the State shall answer the
application not the later than the 15th day after the
date the copy of the application is recieved."
The applicant asserts that if the State wished to answer the applicant's post-
conviction writ it should have done so within the time allowed in 11.07 (3) (b§.
the State did not do so, But did in fact admit that there were controverted,
previously unresolved facts material to the legality of the applicant's confinement,
through it's motion and proposed order. The trial court agreed with the State,
adopted the State's proposed order and designated the issue of the applicant's
_ Actual lnnocence pursuant to: Tex. Code Crim. Proc. Art. 11.07 (3) (b).
" lf the convicting court decides that there are controverted,
previously unresolved facts which are material to the legal-
ity of the applicant's confinement, it shall enter an order
designating the facts to be resolved."
The applicant asserts that the means to resolve the issues are strickly within
the trial court's authority, which may include additional forensic testing paid
for by the state, Affidavits, depositions, interrogatories or evidentiary hearings.
The State as a party to the applicant's post-conviction writ has no more oppor§
/
utunity to have a second bite of the apple than the applicant does. And may not
unduly influence the trial court's finding of fact and conclusion of law in the

hopes of a ruling in it’s favor, or place an untimely and procedurally barred

answer, in the record to be transmitted to the court of criminal appeals, for

that same reason. The applicant asserts that the State has also claimed in it‘s
untimely answer that the trial court has designated the issue of lneffective
assitance of counsel/ However, the applicant has recieved no order from the trial
court designating such an issue; although it is contained within the applicant's
post-conviction application. And the trial court may request an affidavit from
applicant's trial counsel to resolve the issue of his Actual lnnocence. The State
seems confused as to the designation of this issue since'it was not in it's
proposed order, nor was it in the trial court's order. lhe applicant asserts that

'the State is attempting to cloud the issue of the clearly coerced indentification

(2)

of him as a supect, clearly contained within the record and the prosecutor with-
holding the statement from the person who actually pled guilty to the murder, That

l'Jermaine'Chaney had nothing to do with the murder.y

{CDNCLUSION

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Tex. Code Crim. Proc. 11.07 (3) (b) As well as circumvent the rules within; Tex.
Code Crim. Proc. 11.07 (3) (d). Therefore the applicant asserts that the State's
untimely answer be denied and that it be stricken from the record as procedurally
barred and that the trial court issue an order directing such. The applicant also
requests that the trial court grant his motion for an evidentiary hearing to resolve

the issue of his Actual lnnocence that accompanied his Application for habeas corpus.

PRAYER FOR RELIEF
Wherefore Premise havig been considered the applicant humbly prays that this
Honorable Court consider his timely rebuttal and objection to the State's untimely
answer. Deny the Sate's untimely answer and grant the applicant's proposed order
to have it stricken from the record, as well as grant the applicantfs motion for
an Evidentiary hearing.

Respectfully Submitted,

d

J rmaine Dewitt Chaney
CJ -lD # 1496462
Stiles Unit
3060 F.M. 3514
Beaumont, Tx. 77705
Pro-se

DECLARATION

l declare under penalty of perjury that the foregoing is true and correct.

Executed.Ma;{lO, 2015.

ly Sworn,

/l/[]/V M£NC%L
Brmaine Dewitt Chane ey

 

U-ID # 1496462
Pro- -se

(3)

CAUSE NO~ 1113820-A

tx PARTE IN THE `338tn DisTRicr

JERMAINE DEWITT CHANEY COURT of HARRIS COUNTY,

Applicant TEXAS

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Applicant's proposed order to deny the
State's untimely answer as procedurally

barred and to have it stricken from the record

1. That the State's answer is untimely in Cause No. 1113820~A pursuant to 11.07
(3) (b) and is denied. And as a result is stricken from the record. The clerk
of the court is ordered NOT to transmit the State's untimely answer to the Court

of Criminal Appeals.

Signed on the day of 2015.

 

PRESIDING JUDGE

 

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