Abel Aoosta,jElerk

Texes Eourt of Criminel Appeale
P.D. Box 12508, Eapitol Stetion
Austin, Texae 7B711

RE: Filing Applicent'e Dbjeotion... '
Trial Eause No. 1113B20-A; writ No. mR-BA,266-01

Deer Mr. Acosta:

Pleeee file the enclosed Applioent‘e Ubjeotion to the Trial

Eourt‘e Finding of Feot end Eonolueione of Lam with the Boort,

1

end formerd`to the proper official For reviem.
1 einoerly thank you for your time, end for any queetione,

1 can be reached et the address belom.

Respeotfully Submitted,

/s'/ Jermeine Demit`t Eheney RECE|VED|N
JEImBinE DEMitt Chanev COURTOFCR|N||NALAPPEALS
Merk m. Stiles Unit `
3060 FM 351&
Beeumont, Texes 77705

DEC 14 2015

AbeH Acosta, ©\erk

 

 

@q¢ ZU)LQIO‘

IN THE
TEXAS EUURT'UF CRIMINAL APPEALS
AUSTIN, TEXAS

Ex parte
writ No. wR-Bh,ZGG-EW

¢O"¢O)¢O'J

Jermaine Dewitt Ehaney

APPLIEANT'S UBJECTIUN TU TRIAL~EUURT'S
FINDINE UF FAET AND EUNELUSIUN UF LAw

TD THE HUNURABLE JUDEES UF SAID CDURT:

Eomes now, Jermaine Dewitt Ehaney, Applicant in the application for writ of
Habeas Corpus in the above numbered cause; and makes the following objections

to the Trial Court‘s Finding of Fact and Eonclusions of Law.

. 1. The Trial Eourt has deliberately ignored evidence which shows that Daniel
Santien King made several credible declarations of guilt as

to the murder of Anthony white which were not made available to
the Applicant at the time of his trial, but years later. These
include: (A) A voluntary plea of guilty to the murder of

Anthony white in which he was sentenced in the BBBth District
Eourt, Harris Eounty, Texas. see: (Exhibit, Appendix-
memorandum). (B) A statement to the prosecutor (Brent Mayer)
that Mr. Ehaney had nothing to do with the murder; which was
suppressed by the State and favorable to the Applicant. (E) The
same statement that (Jermaine had nothing to do with the murder)
was revealed to Innocence Network investigators during the
course of'their investigation. see: (Exhibit, Appendix-
memorandum); This evidence was revealed well after the Applicant's
trial and was not available at that time. The Applicant asserts

that he has met the threshhold showing of his 5chlup claim

through a credible declaration of guilt by another, supported

by Mr. Kings plea of guilty to the murder. Both powerful pieces

 

ofevidence. see Fairman v. Anderson, WBB`f.Ed 635 (Bth Eir.1999)
"A credible declaration of guilt by another is as valid
evidence as newly available scientific evidence or
credible eyewitness testimony in exonorating a criminal
defendant."

The mxdicant also asserts that the frial Eourt'Judge in adopting

the State's proposed finding of fact and conclusion of law;

failed to consider the very material fact that, Daniel King

made his credible declaration of guilt in the form of a guilty

plea in front of her, and that she accepted that plea and

sentenced Mr. King. This clearly shows bias in favor of the State
and not the fair and impartial consideration that the Applicant

is constitutionally entitled to. see: Bracy v. Gramely, 520 U.S.

899, 177 B.Et. 1793, 138 L.Ed.2d 97 (1997)

"A criminal defendant on either Direct or Bollateral
review is entitled to fair and impartial consideration
by an unbiased Hearing body. "

Therefore, the Applicant requests that an evidentiary hearing is

appropriate since the Applicant‘s 'Schlup Elaim' is supported by

evidence. see Eraves v. Dretke, 4h2 F.5d 33& (5th Eir.ZUDE)
"If the petitioner's allegations are cooroborated by

\ testimony or evidence, then further factual development
in an evidentiary hearing is apporpriate."

2. The Trial Court failed to consider the clear and convincing
evidence presented by the Applicant contained within the
record'dmt shows the identification of the Applicant by
Thelma Leifester, was clearly coerced through misconduct by
the Btate, in which both police officer's and an Assistant
D.A. told Ms. Leifester she would not be arrested IF she
identified the Applicant as the suspect. see: (RR.V.S,ppslBE-

lBB); (Applicant's memorandum in support, pp.17).

This, combined with Ms. Leifester‘s previous identification

of other people as the suspect (see: Exhibits, Appendix-
memorandum), renders her in-court identification unreliable
and inadmissible. see: Manson v. Brathwaite, 452 U.S. 98, 11&
S.Ct. 22&3, 53 L.Ed.2d th (1977)

"when the prosecution offers testimony from an eyewitness

to identify the defendant as the perpetrator of an offense,

fundamental fairness requires that the identification

testimony be reliable."
The Applicant asserts that the trial court had an independent
duty to ensure that the Applicant received a fair trial. The
identification of the.Applicant was not merely impermissably
suggestive, but clearly coerced and the evidence of the
coercion is plainly within the record. For the Trial Eourt to
allow such an in-court identification based on misconduct by
the State is an abuse of discretion ans a violation of the
Applicant's right to due process which caused the Applicant
egregious harm. see: Gonzeles v. State, 117 5.w.5d 337 (Tex.
Erim.App.ZUU§)

"The trial court has an independant duty to ensure a
criminal defendant receives a fair.trial."

The Trial Eourt by adopting the Etate‘s finding of fact and
conclusions of law has errouneously and unreasonably ruled on
the Applicant's ground concerning the hearsay testimony of
Garrett Thomas and Daniel Kingls wife (Antoinette Miller).

ln both instances, the testimony involved what Mr. King said
to Mr. Thomas and Ms.'Miller. while the State and the Trial
Eourt insist that the hearsay issue was considered and ruled
against in the Applicant's direct appeal, this ground in the
-Applicant‘s Habeas application involves the fact that the
Applicant was unable to cross-examine Mr. King as to his

out of court statements. This is a clear violation of the

confrontation clause. see: Erawford v. washington, 5h1 U.S. 36,
124 s.ct.:135u, L.Ed.zd 177 (200@)
l'The confrontation clause applies not only to in-court
testimony but also out of court statements introduced at
trial. Regardless of admissability under the laws of
evidence." '

That this testimony came from Mr. Thomas, who was incarcerated

in the Harris Eounty Jail at the same time as the Applicant,

and Ms. Miller, who admitted to making false statements to the

police because she was made at Mr. King. see: (RR.v.B, pp. 118-

124), and caused the trial judge to have her removed from the

court room, clearly shows the unreliability of such testimony

that was critical to the Applicant's conviction. Bombined with Mr.

King‘s statement that "Bermaine Ehaney had nothing to do with this

crime" presents more than a reasonable probability that had the

Applicant been able to cross-examine Mr. King and had the jury

been aware of Ms. Miller's false statements, the outcome of the

trial would have been different. see: Mason v. Scully§ 16 F.Bd`EB,

42 (2nd cir.zood)

“The assertations accusing the defendant without the
testimony of the declarant of the out of court statements,
violates the confrontation clause. Since without that
testimony, credibility is inevitably suspect, making that
evidence unreliable . "

4. The Applicant asserts that the Trial Eourt, by adopting the
Btate‘s Finding of Fact and Eonclusions of Law§ allowed facts
that are false and not in evidence in the Applcant's case.
Bpecifically, the conclusion that the Applicant did not
present any newly available evidence that would have caused a
reasonable juror to have not found him guilty beyond a

reasonable doubt of Aggravated Sexual Assault. see: (Finding

of Fact and Eonclusions of Law, #5.pp.16-17)

"The Applicant presents no newly-discovered evidence---
that unquestionably establishes his innocence, or that
otherwise proves by clear and convincing evidence that no
rational juror could have found the Applicant guilty of the
aggravated sexual assault of a child alleged in the primary
case."

The Applicant asserts that the State has deliberately
attempeted to prejudice the Applicant before this Honorable
_Eourt with facts that are non-existent. The Applicant has
never been accused or convicted of such a crime and before
the present cese, which is a murder conviction, had never been
convicted of any felony.
The State is clearly aware that the Applicant‘s application
for writ of Habeas Eorpus is requested relief from his murder
conviction, which is his only felony conviction. The
Applicant contends that the State‘s attempt to introduced non-
existent facts into the record was designed to harm the
Applicant. see: Borjan v} State, 787 B.w.Zd 53,57 (Tex.Erim.
Aap.1990)

"Matters not in evidence and harmful to the accused, are

usually designed to prejudice the defendant and as such

are highly inappropriate." '
The Applicant also contends that by adopting these non-
existent facts, the trial court allowed them into it‘s finding,
abused its discretion, and allowed statements meant only to
prejudice the Applicant. see: Eracy v. Eramerly, 520 U.S. 899,
117 SiEt. 1795 (1957)

.FThe trial court abused its discretion by allowing evidence

that had no evidentiary value and meant only to prejudice

the applicant, violating the applicant‘s right to due
process."

The Applicant asserts that the Trial Eourt erred in adopting

the State's conclusion that it was the Appliant‘s timing in

filing his habeas corpus claim that caused his trial counsel‘s
alleged memory lapse, put the State in an unfavorable

position and prejudiced the State. The Applicant contends

that the Btatels claim that the Bourt of Criminal Appeals
"lessoned" the State's already minimal burden is errouneous.
Since a court that would lessen the constitutuional requirements
of the State in order to obtain or maintain a criminal
ydefendant's conviction is a violation of the Ex Post Facto
clause of the United Btate's Eonstitution. see: Earmell v.
Texas, 529 U.S. 513, 120 S.Et. 1620, 146 L.Ed.2d 577 (2000);'
U.S.C.A. Const. Art. 1, §10 CL. 1; Amend. 5, 1h

\

"Altering the rules in a way that is advantages only to the

State, to facillitate the State's ability to obtain or

maintain a conviction is a violation of the Ex Post Facto

clause."
The Applicant asserts that his Trial Eourt Eounsel's inability
to explain why she did not file a motion to suppress the
clearly coerced identification of the Applicant by Thelma
Leifester; is because there is no plausible reason to explain
her explicitly deficient performance. lt is plain from the
record that she knew that the assistant D.A. and Police
Detectives specifically told Ms. Leifester that if she
identified and testified against the Applicant, she would not
be arrested. This, after Ms. Leifester had previously
identified two other persons as suspects, also in the record.
00unsells deficient performance in which she conviently cannot
remember, undermines confidence in the Applicant's conviction.

see: Bone v. State,.12 S.w.Bd 521_(Tex.App.-5an Antonio 1999)

"The totality of trial counsel‘s deficient representation
undermines the confidence in the Appellant's conviction and

 

we.reverse the judgement of the trial court.“
Furthermore, the Applicant contends that any delay in his
filing his habeas claim was due to his diligence in obtaining
evidence of Mr. King's declaration of guilt, and that there is
no statute of limitations on Texas habeas relief and the
State‘s claim that the timing of such prejudiced it is
ludicrous and clearly erreneous. The Applicent objects to the
Trial Court adopting the State's proposed Finding of Fact and
Eonclusions of Law, since it is clear from the record that the
court did so without considering the facts the Applicant
presented in his claim, failed to consider the Applicant‘s
objection to the State's out-of-time answer and it‘s attempt
to re-designate issues of unresolved facts and law that remain
unresolved. This was after the issue of the Applicant‘s_claim
of "Actual lnnocence" was designated. The State has clearly
attempted to operate outside the rules of 11.07 in order to
prejudice the Applicant and_the Trial Eourt has compounded
this prejudice by "adopting" anything the State has filed; as
well as failing to rule on the Applicant‘s Motion for an
Evidentiary Hearing, which was properly before the Trial Eourt.
These rulings by the Trial Bourt are based on erroneous views
of the law that are unresolved. see: Funk v. Stryker, 651 F.5d

777 (5th Eir.2011)
"The trial court commits an abuse of discretion when its

ruling is based on an erroneous view of the law that is
' unreasonable."

00NOL0510N
The Applicant objects to the Finding of Facts and Eonclusions

of Law proposed by the State and adopted by the Trial Eourt.

No reasonable jurist would have ignored the evidence shown by
the Applicant supporting his innocence, nor would a reasonable
jurist allow»non-existent facts into the record insinuating that
the Applicant was convicted of Aggravated 5exual Assault, in a
clear effort to prejudice him before this Honorable Eourt. This
can only point to two conclusions; The Trial Eourt is assisting
the State in its attempt to prejudice the Applicant, or the
Trial Eourt signed the proposed findings and conclusions,.
without examining its content. The result from either is
egregious harm to the Applicant and a violation of his substantial
rights.

PRAYER FOR RELIEF
wherefore issues having been considered, the Applicant humbly
prays that this Honorable Eourt ERANT him relief through his
application for writ of Habeas EDrpus, or in the alternative,
0RDER an Evidentiary Hearing to further determine the truth of
the evidence offered by the Applicant. The Applicant would also
pray that this Honorable Eourt conduct an interragotory as to
why the Trial Eourt would allow non-existent facts into the
record?
Respectfully Submitted,

/s/ Jermaine Dewitt Ehaney

 

Jermaine Dewitt Ehaney_
Mark w. Stiles Unit
5060 FM 5514
Beaumont, Texas 77705
DEELARATIUN
l declare under'penalty of perjury that the foregoing is true and

correct. Executed on this HD day of December; 2015.

Duly Sworn

/s/r Jermaine Dewitt Ehaney

 

Jermaine Dewitt Chaney

APPENDIX
Notification by HARRIS EUUNTY DISTRIET ELERK of Habeas Filing.

Motion Requesting Designation of Issues Filed by the Btate

State's Proposed 0rder Designating the Issue of the Applicant‘s

Actual lnnocence Adopted by the Trial Eourt.

Applicant‘s Timely Rebuttal to the State‘s 0ut-of-Time Answer
to Applicant's Habeas Elaim. '

Notification to Harris Eounty District Elerks of Applicant‘s
(Second) filing of his Timeiy Rebuttal to the State‘s Dut-of-
Time Anawer.

CHRIS DANIEL

HARR\s CouNTY DISTR\CT CLERK

 

May ll,2015

JERMAINE DEWITT CHANEY
#1496462 STILES UNIT

3060 FM 35l4

BEAUMONT, TEXAS 77705

RE: CAUSE #l 1 l3820-A
338th District Court

Dear Applicant:

Your post conviction application for Writ of Habeas Corpus was received and filed on 05-l l-15.
Article ll.07 of the Texas code of Criminal Procedure affords the State 15 days in which to
answer the application after having been served with said application After the l5 days allowed
the State to answer the application, the Court has 20 days in which it may order the designation

~ of issues to be resolved, if any. If the Court has not entered an order designating issues to be
resolved Within 35 days after the State having been served with the application, the application
will be forwarded to the Court of Criminal Appeals for their consideration pursuant to Article
ll.07, Sec. 3 (c) of the Texas Code of Crimi_nal Procedure.

The records of the office reflect the following:
CAUSE NO. PETITION»FOR WRIT`OF HABEAS CORPUS DISPOSITION

` A_ll_ future correspondence should indicate the above listed cause number

  
  

Leslie ernan ez,
Crirninal Post Trial

CC: District Attorney
. Judge, Presiding Court

1201 FRANKLIN » P.O. Box 4651 o HousToN, TEXAS 77210-4651 PAoEloFl
REv_ 01-02-04

`_\ .~,rti

Cause No. 1113820-/\
EX PARTE v § \N Ti-iE 338“‘ D|STR|CT' COURT
§ OF

JERMAINE DEWiTT CHANEY, § HARR\S COUNTY, TEXAS
Applicant

MO_TiON REQUEST\N_G DESiGNATlON 'OF \SSUES
The State of Texas, by and through its Assistant District
Attorney for Harris County, requests that this Court, pursuant to TEX.
CODE CRIM. PROC. art. .11.07, §S(d), designate the following issues which

need to be resolved:

'l. Whether the applicant is actually innocent

 

Service has been accomplished by mailing a true and correct
copy of the foregoing instrument to the applicant at the following
address: l

Jermaine Dewitt Chaney'
#1496462 - Stiles Unit

3060 Fi\/l 3514
Beaumont, Texas 77705

SIGNED this 20th day of ivlay, 2015.

 

Harris County, Texas

1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-6657 (office)
(713) 755-5240 (fa)<)
Texas Bar i.D. #24059760

Cause i\lo. 1113820-A
EX PARTE _ § |N THE 338“‘ D|STR|CT COURT
§ OF

JERMA|NE DEWITT CHANEY, § HARR|S COUNTY, TEXAS b
Applicant 1

STATE’S ,PROPOSED` ORDER DES|GNAT\NG lSSU_ES
Having reviewed the applicant's application for writ of habeas
corpus, the Court finds that _the_following issues need to be
resolved in the instant proceeding:

1. Whether the applicant is actually innocent

Therefore,' pursuant to Article 11.07, §3(d), this Court will_

resolve the above-cited issue and then enter findings of fact.
The Clerk of the Court is ORDERED NQI to transmit at this
_time any documents in the above»styled case to the Court of

Criminal Appeals until further order by this Court 7

 

!//vjcia€;_l l?>,!¢f¢f<?

/.

By the following signature, the Court adopts State's Proposed Order

Designating issues in Cause Number 1113820~A.

sicNi-;D onthe w ay of ree\ / ' .2015.

\
/
E lDlNG JUDGE

tip

