§§MES’X;OZ:

HONORKBEE ABEL ACOSTA

Clerk, Court of Criminal`Appeals
P.O. Box 12308, CAPTIOL STATION
Austin, Texas 78711

RE: EX PARTE ALBIN ADALIN ZELAYA-ZELAYA
Writ NO.
(Trial Court Cause NO. 1089402-B)
180th Judicial District Court
HARRIS COUNTY§ TEXAS
ON APPLICATION FOR A WRIT OF HABEAS CORPUS, ART. 11.07, TCCP

Dear Mr. Acosta:

Enclosed please find original set of my pro §§ APPLICANT¥S
PRELIMINARY BRIEF, REQUESTING`THE COURT ORDER APPLICATT©N§
FILED AND SET FOR SUBMISSION ON lMPORTANT ISSUES PRESENTED
lN CASE. Please file Said brief with the papers in the above
entitled and styled writ and present the same to the Judges
of the Court.

Take note that I'am not including your "WRIT NO" assigned to
the writ case, because l have not been-notified my case was
received and presented to the Court, from the trial judge's
signing of the order denying the writ on April 1, 2015. Please
indicate the writ number, as assigned to the case by/your
office, to my pleading.

By copies of this cover letter, a copy of Said APPLICANT'S
PRELIMINARY BRIEF is this day also being Served on opposing counsel
of record as indicated in the CERTIFICATE OF SERVICE atjpage

18 of the instrument, as indicated below.

Thank you for your time and prompt attention to this matter.
And, please acknowledge receipt of said instrument and send
me your "writ number" assigned to my case. l remain,

Very truly yours,

/S/ ALBIN ADALIN ZELAYA-ZELAYA R§©EEVE. EN

ALBIN ADALIN zELAYA-zELAYA ` ©@URT QFQRMNAL APPEALS

TDcJ-cn) No. 1561950 JUN 012015
Coffield Unit

Rt. 1, Box 150 .

Tennessee Colony, Texas 75884 AY@@HA@@S@@,©“@W(

APPLICANT PRO SE

aazz:lpp

CC: MS. LISA C. MCMINN v - MS. SHARON Y. CHU
STATE PROSECUTING ATTORNEY ASSi§atDt DiStrict Attorney
P.o. Box 12405 cAPIToL sTATIoN Harrls COunty, Texas
Augtin’ Texas 78711 lzothranklin Stre€t

Houston Texas 77002
STATE HABEAS ATTORNEY BELOW

` ‘ <6`\»3|§/‘01

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS, AT AUSTIN

 

WRIT NO.

 

EX_PARTE ALBIN ADALIN”ZELAYA-ZELAYA, APPLICANT

 

ON APPLICATION FOR A WRleOF HABEAS CORPUS
TRIAL COURT CAUSE"NO# 1089402-B
180TH JUDICIAL DISTRICT COURT
`HARRIS COUNTY,.TEXAS

' APPLICANTFS PRELIMINARY BRIEF,
REQUESTING THE COURT ORDER~APPEICATION`FILED
AND SET FOR SUBMISSION ON`IMPORTANT
ISSUES PRESENTED IN CASE
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

ALBIN ADALINNZELAYA#ZELAYA, hereinafter "Applicant," prays that
the Court order his writ application filed and set for submission on
one, or more of the important issues presented in his case, as follows:

I.
.PRO€EDURAL HISTORY §§ THE`CASE
On April 3-6, 2009 Applicant was found guilty and sentenced by
the samet§ury to life imprisonment, and a $10,000.00 fine, and $550.00
court costs on five (5) counts of burglary of a habitation, assessed
"concurrently" in cause number 1089402, in the.180th District Court,

10
Harris County, Texas, with a deadly weapon finding. See WRIT RECORD.

 

1. Reference hereinafter will be made to the "WRIT RECORD" on Applicant's
"Writ Application," "Writ Exhibits" [A through l],`the "State's

Original Answer,"`the "State's Proposed Findings of fact; conclusions of
law and order," as well as to the statement of facts VOLUMES 1 through

5, of his trial, as referenced in the body of his writ in support of his
habeas claims, findigg support in the trial court record below. ld.

1.

The Fourteenth Court of Appeals-Houston affirmed Applicant's

conviction on August 3, 2010, in Zelaya-Zelaya v. State§ NO. 14-09-

 

00346-CR, 2010 WL 3002101 (Tex.App.-Houston [14th Distt];'This Court,
thereafter, refused Applicant's PDR on January 21, 2011 in NO. PD-1195-
10.

On May 14, 2014 in Ex Parte Zelaya-Zelaya, Writ NO. 81,318-01,

 

this Court "dismissedU Applicant's first writ application as "non-
compliant" with the§provisions ongULE 73, TEX¢ RULES APP. PRO.

On March 4, 2015, Applicant re-filed his pro §§ writ application
in compliance with RULE 73. Id. Then, on April 1, 2015 the trial court
adopted the State's Proposed`Findings@of`fact, conclusions of law and
Order, recommending this Court deny habeasarelief, without ordering
a response from trial counsel and without an evidentiary hearing. This
habeas appeal ensued. .

v II.
PARTIES INVOLVED

1. RICHARD GONZALES,- Houston defense trial counsel.

CAROLINE DOZIER ; Triai€€éurttv Assistant`District Attorney.
HON. DEBORAH MANTOOTH STRICKLIN - Trial Judge.

-l-\(,ol\)

. ROBERT MORROW - Appellate counsel on appeal.

// - ON"HABEAS
V SX ALBIN ADALIN ZELAYA-ZELAYA - Applicant pro §e.

 

2. Although the habeas judge entered its findings on April 15 2015,

and ordered transmittal of the case to this Court; as of this date-
Applicant has not received notice from the Clerk of this Court that his
case has been received and presented to the Court [the reason he does
not yet know the writ number assigned to the case in this Court, not
included hereiin.the caption]. `

6. SHARON Y. CHU - State'S Habeas Prosecuting Attorney.
7. UNKNOWN - Harris County Habeas Judge.

8. LISA C. McMINN - State Prosecuting Attorney-Austin.
III.
ISSUES PRESENTED FOR REVIEW

This Court should order Applicant's writ application filed and
set for submission, on one or more of the issues presented, order the
trial court to appoint licensed counsel to represent Applicant before
this Court, ordér;thé pagties;to brief the issues, hold oral argument
within 90 days of the order of the Court, as follows:

(1) whether, as.a matter of first impression in this Court,
the jury verdict of guilty of "burglary of a habitation with
intent to commit aggravated assault and/or robbery, as

\. charged in the indictment" is violativer of the "Stromberg
rule in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532
(1931), where the Double Jeopardy'€lause forbids trial,
conviction and multiple punishmentssfor the same offense,
against the same complainant during the same criminal episode,
where the verdict reached in this case rested exclusively on
a provision of the Texas and United States Constitutions
fordibs, requiring the entire verdicttbe set aside without
regard to any harm analysis, nor the general rule of retaining
the most serious offense and setting aside the other conviction,
a double-jeopardy jurisprudence ruléhthat is contrary to
Stromberg, and the Fifth Amendment, U.S. Constitution.

(2) whether this Court should apply the traditional deference
habeas standard to the habeas court's findings of fact,
conclusions of law, where State habeas prosecuting attorney
deliberately and unethically distorted§ mischaracterized and
altered Applicant's habeas claims, and the habeas court's
findings, and conclusions of law rest on such distortions of
fact and law, and are-not therefore supported by the record
on Applicant's clear and concise claims raising double
jeopardy, racially discriminatory entrapment "sting operation,"
false impressions testimony, and ineffective assistance of
counsel requiring reversal and remand to the trial court for
resolution of Applicant'sdtrue constitutional claims,

(3) whether State habeas prosecuting attorney MS. SHARON Y.
(HHNSTexas Bar I.D.. #24051950 sharp "Machiavellian" pleading
practice and her flagrant distortions, mischaracterizations,
and alterations of Applicant's clear and concise habeas claims
not subject to misinterprepation, constitutes professional
unethical conduct by a member of the Bar that should be

sanctionable and referred to the State Bar Grievance
Committee for further investigation by this Court.

(4) whether in adopting the State's'habeas prosecuting
attorney£s distorted, mischaracterized, and altered
, Applicant's habeas constitutional claims, as proposed by

~7 the State in the proposed findings Bf fact, conclusions of

law and in the absence of independent inquiry by the

habeas judge, taken together, constitutes constitutionally

inadequate habeas procedures, deprivation of "protected

liberty interests" not to be deprived of liberty without

due process of law, and traditional principles at common

law guiding the GREAT WRIT, all amount to unlawful suspension

of the GREAT WRIT in violation of.the Texas Habeas Corpus

Reform Act of 1995, Article 11.07, TEXAS CODE OF CRIMINAL

j PROCEDURE, Article I, Section 12, Texas Constitution, and

y Article I, Section 9, Cl@uue 2;'U.S. Constitution that
should not be condoned by the Court otherwiseethe GREAT WRIT
would be meaningless. `

IV.
ISSUES NUMBE§AbNE (RESTATED)
(Double Jeopardy and the Stromberg Rule)

Applicant's "GROUND'ONE" at p§ge.b, WRlT APPLICATION, raises a
clear and concise double jeopardy multiple punishments claim, not
Subject to misinterpretation, in alleged violation of the double
jeopardy principlessand protections of both the Texas and United
States Constitutions, and the application of the "Stromberg Rule,"
as a matter of first impression in this Court. ld. Applicant asserts
that he was illegally tried, convicted and suffered multiple punishments
On a five (5) count indictment of burglary of a habitation forithe
"same offense" allegedly invovling the same victim during the same
criminal episode, with affirmative deadly weapon findings on all
counts, as charged in the indictment. See APPLICANT”S-WRIT EXHIBIT
"A" - INDICTMENT cAUsE No~'. 1'089402, w-RIT REcoRD. I_d. The trial judge
charged the`jury disjunctively On all five (5) counts. EXHIBIT "B" -
COURT'S CHARGE. The jury returnedda "guilty_verdictv on all counts

in a general-verdict holding: WE THE JURY FIND THE DEFENDANT ALBIN

`A"DAL`IN ZELAYA-ZELAYA"G`UILTY:","OF BURGLARY OF HABITATION WITH THE
INTENT TO COMMIT AGGRAVATED ASSAULT AND/OR ROBBERY, AS CHARGED IN
THE INDICTMENT;;£§mphasis added); SEE EXHIBIT "B." On punishment,
the same jury answered the SPEClAL lSSUEnon affirmative deadly
weapon finding saying: WE DO, as to that finding. See.Ex Parte Hill,
208 SW 3d 462, 463 (Tex.Crim.App. 2006)Cfliberty interests" affected
by affirmative deadly weapon finding). SEE EXHIBIT'"C" - SPECIAL
_ISSUE CHARGE. The jury sentenced Applicant to life imprisonment,

a $10,000100 fine, and the trial judge added $550.00 in court costs
in its JUDGMENT and SENTENCE, all to be runned "concurrently." SEE
EXHI_BTS "D" and "E*:" l_d.

The gravamen of Burglary of a Habitationnis the entry without
the effective consent of theeowner, with the requisite mental state,
and is the "allowable unit of prosecution." Ex Parte Cavazos, 203
SW 3d 333, 335-37 (Tex.Crim.App. 2006); Moreover, this Court has
noted that "aggrav§&ed assault" is a lesser included offense of

"robbery," an assaultive offense1 See e.g. Young v. State, 283 SW
3d 854, 862 (Tex;Crim.App. 2009)(robbery is an assaultive offense);
Byrd v. State, 336 SW 3d 242, 251, n. 43 (Tex.Crim.App. 2011)che
unit of prosecution of the offense of robbery is the victim).
Further, in determining whether there have been multiple punish-
ments for the "same offense," the Court applies the "same elements"
test from Blockburger v. United St§tes, 284 U.S. 299, 304, 52 S.Ct.
180 (1932), as the starting point in the analysis of a multiple
punishments double-jeopardy claim. See Ex Parte Ervin, 991 SW 2d
804, 807 (Tex.Crim.App; 1999)(€EI]he Blockburger test cannot authorize
two punishments where the legislature clearly intended only one");

accord, Gonzales v. State, 304 SW 3d 838, 845-46 (Tex.CrimrApp. 2010).

jeopardy purposes, the Court will focus on the elements alleged in
the chargingfinstrument. Bigon v. State, 252 SW 3d 360, 310 (Tex.
Crim.App. 2008). "[U]nder the cognate-pleadings approach adopted by
this Court, double-jeopardy challenges should be made to offenses
that have differingg elements under Blockburger,'ifFYhe`§amef£ae§s
required are alleged in the indictment. ld. citing Hall v. State,

'3225§Sw3d 524 (Tex.Crim»2007). See also KELEER, PRESIDING JUDGE,

concurring opinion, in Ex Parte Denton, 399 SW 3d at 577 noting
contradictory of decisions on double-jeopardy jurisprudence "not a
model of-clarity," citing Gonzales v. State, 8 SW 3d 640, at 642-43
(Tex.Crim.App. 2000) ); Gonzales, 8 SW 3d at 646 (MEYERS, PRICE,
JOHNSON, dissenting arguing application of the "Stromberg rule"
to applicant's double'jeopady claims, overruled in dicta by subsequent
decision in Ex Parte Denton, 399 SW 3d 540 ).

In the case at bar, as plead in Applicant's five (5) count
indictment, all charges alleged Vaggrav§ted-assault" and/or "robbery"

with "use of a deadly weapon." EXIBIT "A" - INDICTMENT. Thus, as

See Arcicle 37.09(1), TEXAS PENAL coDE; Girdy v.-StaEe, 213 Sw 3d
315, 319 (Tex.Crim.App. 2006). Further, there is no clear legislative

intent to punish the offenses separately and trying@ convicting and

 

l

subjecting Applicant to multiple punishments in this case, with an
"affiramtive deadly weapon finding," dndeETArticle 42.12§ 3(g), TEX.
CODE CRIM. PRO., SEE EXHIBIT "E" - JUDGMENT OF CONVICTION BY JURY,

Wri£ Redord, Id., for the "criminal act" that is the subject of

Applicant's prosecution is barred. See Ex Parte Cav§zos, 203 SW 3d
333 (T€X~Crim-App- 2006)Hconvicting.applicant of two counts of
burglary of habitation in a single unlawful entry violated his
rights under the 5th Amendment's Double Jeopardy Clause of U.S.
Constitution). However, as a matter of first impression in this
Court, as a general rule when a defendant is convicted of two offenses
and those convictions violate double-jeopardy protections, the
conviciion for the most serious offense is retained, and the other
conviction is set aside. ld. However, under Stromberg v.`California,
this Court must set aside the entire verdict in this caseaunder
the constitutional rule that,n"[w]here a provision of the Constitu-
tion forbids conviction on a particular grou§d[here doubie`jeopardy
under the 5th Amendment], the constitutional guarantee is violated
by a general verdict that may have rested on that ground [here the
jury's guilty verdicti"with intent to commit aggravated assault
and/or robbery], See.also e.g. Morehead v. State, 807 SW 2d 577
(Tex.Crim.App. 1991)Hreversing entire jury verdict, two count
theoriesxof conviction under Stromberg rule on possibility jury
may have convicted appellant on unconstitutionally invalid charge,
count as charged in indictment); See also Ex Parte Craves, 805 SW
790 (Tex.Crim.App. 1991)Gapplicant failed to establish jury's

consideration on second.count, and their ultimate verdict and

sentence on that count contributed to the sentence imposed on count

One); See also e.g. Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct.

 

(1988); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733 (1983)(applying
Stromberg rule).

"[W]henma double-jeopardy violation has occurred, a writ of
habeas corpus is a proper venue through which to challenge the error."
Ex Parte Milner, 354 SW 3d 502, 522 (Tex.Crim.App; 2013). Habeas
collateral review is appropriate, when, as in the case at bar, (1)
the undisputed facts show the doublejjeopardy violation clearly
apparent on the face of;the record (APPLICANT'S WRIT EXHIBITS A
THROUGH l), and (2) when enforcement of usual rules of procedural
default serve no legitimate state interest. Ex Parte Denton, 399 SW
540; KELLER, PRESIDING JUDGE, concurring opinion, in Ex Pa§te
Denton, 399 SW 3d at 547-558 (noting conflicts in courts of appeals
on double-jeopardy jurisprudences"nt]hat we need to address in an
appropriate case" ld at 553).

Here, on the face of the record and`APPLICANT}S WRIT EXHIBITS

A (INDICTMENT), B (COURTmS CHARGE), 633 D, and E'(§URY'S VERDICT,
SPECIAL ISSUE/sENTENcE, JUDGMENT, sENTtNCE), shows the doubl¢sjeopardy
violation and applicant”s convictions'cannbt stand under the Fifth
Amendment, U.S. Constitution and the §££omberg rule in Stromberg
v. California, 283 U.S. 359, 51 S.Ct. 532, on any count, as made
applicable to the States by virtuee of the Fourteenth Amendment;in

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969).

B.

ISSUE NUMBER TWOv(RESTATED)
(Stateis Misrepresentations.of Claims and Deference)

This Court has stated that, "[o]n postconviction review of habeas
corpus applications, the convicting court is the 'original_factfinder,'
and [this Court] is the ultimate factfinder." Ex Parte.Chavez, 371 SW
3d 200, 207 (Tex.Crim.App. 2012). Although the Court will "generally
defer to and accept the convicting court's findings of fact and con-

clusions of law,"

this-Court may exercise its authority "to make
contrary or alternative findings and conclusions" when its "independ-
ent review of the record reveals that the trial judge's findings and
conclusions are not supported by the record." ld.(internal quotations
marks and citations omitted); See also Ex Parte Flores, 387 SW 3d
626, 634-35 (Tex.Crim.App. 2012)(Court of Criminal Appeals acts as
"the ultimate fact finder" when the lower court's findings "do not
resolve the necessary factual issues").

In Ex Parte Reed, 271 SW 3d 690 (Tex.Crim.App. 2008) the Court
grappled with the applicable standard of deference review owed the
trial judge's factfindings and conclusions of law, where a few of the
factfindings were either unsupported by the record, or appeared, in
some fashion, to be misleading, after an evidentiary hearing heldain
the habeas court below, based on "conflicting_testimony." ld. at 726.
The §§ed Court rejected "[a]ny type of litmus test for determining
whenihnd endernwhatwcircumstances-the level of overall deference may
be af£eeféd:byinumeroes:unsupported§findingsrand:conclusions;Hal§ at
728.7Aithough after independent review of the §§§d`trial judge's

findings of fact, the Court found F[a] select few of these findings"

whichmwereeinconsistent with the-record, or were "[s]omewhat mis-
leading," but irrelevant to the courtls resolution of the legal
claims, and went on to adopt the trial judge's findings and conclusions
and denied habeas relief to the applicant on his constitutional claims
Of actual innocence and suppression of evidence. ld. at 728-751.
However, the Reed Court added:
"[T]he case may arise where the nature and number of
unsupported findings and conclusions may render the
findings and conclusions wholly unreliable and beyond
repair. Under such circumstances, we may elect to take
it upon ourselves to conduct all of the factfinding and
to issue a ruling explaining our application of the law
to the facts. However, we note that itwwill be under only
the rarest and most extrordinary of circumstances that
we will refuse to accord any deference to the findings
and conclusions as a whole."
Ex Parte Reed, 271 SW 3d at 728.
The Court went on to be critical of the habeas procedures conducted
in the court below, attributing said "inaccuracy" "[t]o the fact
that the State generated the proposed findings and they are therefore
wholly representative of the State's interpretation of the evidence,"
admonishing trial judges to act'*[als a neutral arbiter" and to
"[m]ore carefully scrutinize the Statels proposed findings to
ensure that they accurately reflect the evidence in the record before
adopting them verbatim." ld. at 729. See also KELLER, PRESIDING JUDGE,
'concurring but disagreeing with portion of Courtls opinion on issue 4
of "deference,* Ex Parte Reed, 271 SW 3d at 751~754.
ln the case at bar, State's habeas attorney MS. SHARON@ Y. CHU
not only distorted, micharacterized, and misrepresented, but altered

Applicant's habeas claims to uproot them from their solid constitu-

tional ground, to make the claimssappear meritless not based on

10.

fact and law to serve the interests of the State. For example, in
her "State's Original Answer" of March 20, 2015, she:
1. misrepresents and alters Applicantjs clear and concise
double-jeopardy claim to a "challenge to the form or substance

of the indictment [is] deemed waived." STATE'S ORlG. ANSWER,pgs.

 

2-4; Com are with A licant's GROUND ONE, pg. 6, WRIT APPLICA-
P PP _ ____________

TION, WRIT RECORD.

 

2. Applicant's racially discriminatory entrapment "sting
operation§" the false testimony claims were altered to make
them appear to "allege illegal search and seizure and pro:
Secutorial misconduct [.] because the probable cause Statement

appears incomplete."'STATEFS ORlG. ANSWER,¢pgs; 4-9; Compare

 

with Applicantls GROUND TWO, THREE, pgs. 8-10, WRIT APPLICA:
TION, WRIT RECORD.

 

3. On Applicant's ineffective assistance of trial-counsel
multi-faceted claims (counsells failure to investigate, failure
to file pretrial motions, failure to object, failure to request
appropriate jury instructions on duress and entrapment), the
State;inappropriatelytlabeled Said issues mere "issues of law"
alone that did not require factual resolution, where trial
counsel RICHARDDGONZALES was not even required to submit'an-

\ "affidavit" in response to these claims, and they§£emained
unresolved. sTATE's oRIG. ANSwER,Jpgs. 5-12. compare with
Applicant's GROUND FOUR,'pgs. 12-15, WRIT`RECORD.'

Thereafter, in causing further insult to injury, Statels habeas

prosecuting attorney MS. SHARON Y¢?CHUj then submits her "State's

11.

_Proposed Findings of Fact, Conclusions of Law and Order," based

on her unethical misrepresentations of fact and law, signed and
adopted by the trial judge, blindly, distorting Applicant's valid

and meritorious constitutional claims. Applicant's claims presented
controverted, previously unresolved facts material to the legality

Of his confinement under Article 11u07, § 3(d), TEX. CODE CRIM. PRO.
However, with her unethical twist of her "Machiavellian pen," approved
and adopted by the rubber-stamp trial`judge, State's habeas counsel
disappeared Applicant's claims into thin air, and Applicantls factualv
and legal claims remain unresolved. This case is a case "[w]here

the nature and number of unsupported findings and conclusions (have)
rendered the findings and conclusions wholly unreliable and beyond
repair." Ex Parte Reed, 271 SW 3d at 728; And, this is a case where
this Court must “Er]efuse to accord any deference whatsoever to the
findings and conclusions as a whole" for they are unsupportedrby
thezrecord as a whole, are incomplete and unreliable and are biased
and deliberate and unethical misrepresentations committed by State's
Habeas Prosecuting Attorney MS. SHARGN Y. CHU and must not be allowed
to stand, should the GREAT WRIT OF HABEAS CORPUS have any meaning,
by/the quick hand of the devious, michievoussAssistant District
Attorney of Harris County, Texas. See e.g. Ex Parte Torres, 951 SW

2d £65 (Tex,@rim_App,l997)(remanding case to trial court for fact
resolution offapplicant's claims), on remand, granting writ, Ex Parte
Torres, 943 SW 2d 469 (1997); Ex Parte Denton, 399 SW 3d 540 (Tex.
Crim.App. 2013)(multiple-punishments double-jeopardy claim can be

raised for first time on habeas); See also United States v. Antuan

12.

Duane'DunlaE; case No. 2 13-cR-00126~00w-3, u.s. Dist. cc. cent.
Dist. Calif, March 3, 2014 (dimissing indictment on outrageous
governmental conduct based on identical "sting operation" policies
used to entrap Applicant Zelaya-Zelaya in this case); Now compare
Applicant's GROUND TWO,'pgs. 8-9, WRlT APPLICATION, and APPLICANT*S
WRIT EXHIBIT "F" 4 RACIAL.PROFILING“OF AFRICAN AMERICANS AND LATINOS

 

 

IN'DRUG STINGS A POSSIBILITY, JUDGE SAYS; EXHIBIT "G" - JUDGE BLASTS

ATF STINGS FOR 'MADE-UPWHUMET*and'Zelaya-Zelaya v. State, NO. 14-09-

 

00346-CR, 2010 WL 3002101 (Tex;App.-Houston [14th Dist.](noting
Applicant's conviction stemmed from a "sting operation" created by

the federal government and Houston Police Department);'

"[A]pplicant here would further show that USA-TODAY obtained

a copy of the FBI'sQZOll'REP©RT showing the FBI illegalities
were nationwide and included prosecutions within the U.S.
Southern District of Texas, Harris County, specifically
referencing several Texas federal cases based on said illegal
"sting operation;" as well as objections by certain U;S.
Congressman protesting said illegalities by the FBI that
resulted in Congressional hearings and other proposed bills
to end said illegalities. See USA TODAY, www.usatoday.com,
Aug. 2013; Thereforex Applicant's entrapment, arrest/, trial;
conviction and sentence is based on outrageous government
conduct,-shocks the conscience and cannot stand and must be
vacated ..... " ' '

wRIT APPLICATION, GROUND Two;~page 9, wRIT RECORD.

 

Surely, Applicant's claims are meritorious constitutional claims
cognizable on habeas and deserved better consideration accorded them,
instead of distorting, misrepresenting anddalterting them to hide
them in obscurity from this Court and the public conscience.

n c.

ISSUE NUMBER THREE (RESTATED)
(Professional Unethical Conduct by”State*s Habeas Counsel)

As aruged above, at ISSUE`NUMBER TWO, State Habeas Prosecuting'

Attorney MS. SHARON Y. CHU, distorted, micharacterized, misrepresented

13.

and altered Applicant's habeas claims, draining them of all meaning,
and to decieve; defraud and injure Applicant'saconstitutional and
Statutory right to the writ of habeas corpus. Compare CWRlT`APPLlCA-
TIONS, with STATE'S ORIGINAL ANSWER, and STATE'S PROPOSED FINDINGS

OF FACT, CONCLUSIONS OF'LAW AND ORDER, WRIT RECORD, Id. Her conduct
in this case is deliberate, unfair,fiagrant and unethical in-mis-
representing a "governm@dtal;record" as sworn to and filed with the
Court. See e.g. Vasilas v. State, 187 SW 3d 486 (Tex.Crim.App. 2006)
(a petition is a pleading filed in court and constitutes a "govern-
mental record" within the meaning of § 37.01(2)UA), TEX. PENAL CODE).
Applicant's habeas constitutional claims were so clear, direct and
Concise that were not subject to misinterpretationn The misrepresent-
ation of these claims by State's Habeas Counsel was deliberate with
knowledge of its altered falsity’and is conduct prejudiciaiito
justice, and obstructs the orderly administration of justice in
violation of cannons of conduct and laws that govern her office

and employmenttas a prosecuting attorney, and a member of the STATE
BAR OF TEXAS. See AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL
JUSTICE PROSECUTION FUNCTION, STANDARDS 3-1.2(b)fc); TEXAS`DISCIPLINARY

 

RULES OF PROFESSIONAL CONDUCTj RULE 8.04(3)(4); See e.g. Matter Of

 

J.B.K., 931 SW 2d 581, 583 (Tex;App.-El`Paso'1996); State ex. rel §,

Edison v. Edwards@ 793 SW 2d 1, 7 (Tex.Crim.App. 1990); Duggan v.

 

§£a£§, 778 SW 2d 465, 468 (Tex.Crim.App; 1989)(prosecutorssare not
exempt from the cannons of professional conduct); See also Berger v.
United scates;-295yu.sa.78, 88, 55 s.ct. 629 (1935).

This Court should issue a show cause order to State's Habeas

'Counsel MS. SHARON Y. CHU, requiring her to show cause why she should

14.

not be sanctioned by this Court, and, also, refer the matter to the
STATE BAR`GRIEVANCE GOMMITTEE for further investigation. Matter of

~J.B.K.z 931 SW£Zd 581; Guillory v. State,'557 SW 2d 118, 120 (Tex.

 

 

Crim.App. 1997); Section 82.061, TEX. GOV'T CODE (on sanctioning
attorney practi§§;before Court for unethical conduct); See also

Chambers v. NASCO, lnc., 501 U.S. 32 (1991)§filing'misleading and

 

false pleadings in court constitutes "fraud on the court" sanctionable
by federal rules and the "inherent equitablev'§pwers of courts to
punish unethical practice before the courts); accord, Anderson v.
Butler, 886 F. 2d 111, 113-14 (Sth cir. 1989).

D.

ISSUE NUMBER FOUR'(RESTATED)
(Constitutionally adequate Habeas Procedures)

The U.S. Supreme Court has repeatedly rejected suggestions by
government to restrict, or suspend the writ of habeas corpus, describ-
ing the vital function the GREAT WRIT has played throughout English
and U.S. history: "[T]he;Framers viewed freedom from unlawful restraint
as a fundamental precept of liberty, [recognizing the writ] as a vital

instrument to secure thatifreedoma" quoting Boumediene v. Bush, 553

 

U.S._¥, 128 S.Ct. 2229 (2008). The Court has recognized that, "[F]ree-
dom from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental

action.' quoting Foucha v. Louisiana, 504 U.S. 715 80, 112 S.Ct. 1780
(1992). "[T]he privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being held pursuant
to 'the erroneous application or interpretation of relevant law [.]

These are easily identified attributes to any constitutionallyyadequate

habeas corpus proceeding." Boumediene, 128 S.Ct. at 2266.

15.

Further, the Supreme CoUrt has admonished the judiciary that a
prisoner's first habeas writ petition is a "[s]efious matter implica-
ting interests in human-liberty," requiring courts give careful
scrutiny to said petition in the writ's role in safeguarding con-
stitutional rights to redress claims of wrongful imprisonment. Lgncha£
v. Thdmas, 517 U.S. 314, 324 Ll996); See also Ex Parte Ca££, 511 SW
2d 523, 525 (Tex.Crim.App.`1976).

To safeguard those "protected liberty interests" not to be deprived

of life, liberty or property without due process of law, which is at

the "core of habeas corpus," the Court in §Hamdi v. Rumsfeld, 542 U.S,,

 

507, 124 S.Ct. 2633 (2004) adopted the procedures in Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976) to make the writ more
efficacious in order to protect these core interests on claims of
illegal restraint and detention. See also Ex Parte Geiken, 28 SW 3d
553, 558 (Tex.Crim.App. 2006)§applying two-step inquiry in determining
if "liberty interests" exist and due process procedures to determine
if they are sufficient to protect those interests).

In the case at bar, State's Habeas prosecuting Attorney MS.
SHARON Y. CHU, unethically misrepresenting and distorting Applicant's
constitutional claims on habeas in his "first; writ petition§" and
then "proposing" findings of fact, conclusions of law on such disort-
ions, the trial judge adopted, blindly,»and without careful and
independent scrutiny ofithe facts and the law, constitutes constitu-
tionally inadequate habeas procedures and the unlawful suspension
of the GREAT WRIT in violation of Article 11.07, TEX. CODE CRIM.
PRO.§RArticle ly Section 12, Texas Constitution, and Article I,

Section 9, Clause 2, U.S. Constitution.

16.

V.
CONCLUSION

For these reasons, this Court should order the writ application
filed and set for submission on one, or more of these important
issues presented, order the trial court to appoint licensed counsel
to represent the indigent Applicant, order briefs and hold oral
argument on said questions. And, thereafter, traverse and remand
the case as law and justice requires.

WHEREFORE, PREMISES CONSIDERED, APPLICANT.ALBIN ADALIN ZELAYA-
ZELAYA prays that the Court grant all the habeas relief he is
entitled to as a matter of law and justice.

Respectfully'submidted,

May 30, 201-5 l NGDW M@wai@@@)\@?b&d:»

ALBIN ADALIN ZELAYA- ZE@AYA
TDCJ- -CID NO- 1561950

Coffield Unit

Route 1, Box 150

Tennessee Colony, Texas 75884

APPLICANT PRO SE

17.

 

CERTIFICATE.OF SERVICE
I hereby certify that a true and correct copy of the above
and foregoing APPLICANT'S PRELIMINARY BRIEF [.] has this the 30th
of MAY, 2015, been mailed, postage prepaid, to the following'

interested parties and counsel of record for the State, below:

- MS. LISA C. McMINN@
STATE PROSECUTING ATTORNEY
P.O. BOX 124053 CAPITOL STATION
Austin, Texas~78711

-MS. SHARON Y. CHU

Assistant-District Attorney

Harris County District Attorney's Officea
1201 Franklin Street

Houston, Texas 77002

STATE HABEAS ATTORNEY IN TRIAL COURT

ALBIN ADALIN ZELAYX}ZELAYA(]

18.

