1 'Ol 02)03/54/
824 X‘JC 1 §§

February 25 , 2015

Court Of Criminal Appeals RECE'VED m
clerk, Abel Acost;§{§ COURT OF CRIM|NAL APPEAL
P.o. Box12308,. capital statié§n S
Austin, Texas 78711 - MAR 03 2015

RE: Ex parte Matthew` Cotten Abe|AcoSta. Clel’k

Writ NOS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-4`32[--1-373-1227020-A;
C-432-010374-1227021-A; C-432-010375-1227111-A.

Dear Clerk,

Enclosed you will find "Applicant'S Traverse To the '_I‘rial Court's Findings` of
FAct and Conclusion of Law" in the above Stjled and numbered causes. Please file-
stamp Said instrument and bring it to the attention of the court in your usual fashion.
'I'hank you for your time and cooperation.

Respectfully Submitted :

k _
Matthew Cotten No. 1826716
Coffield Unit
2661 F.M. 2054

Tennessee Colony, Texas 75884

CC:

Steven W. Conder

Assistant District At_torney
401 W. Belknap

Fort Worth, Texas _76196-0201

writ Nc». c--432-\oi0371-)j1222_336,:-»A
Ex Parte In The 432nd Judicial

District Court

Matthew Cotten

mw}¢°}mdm

Tarrant County, Texas

Applicant's Traverse Tb The Trial Court's Findings Of Facts

And Conclusion Of law
Tb The Honorable Court Of Criminal Appeals:

Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support thereof will show this court the following:

-Grounds Fbr Relief
On January 4, 2015, Applicant filed this foregoing writ of habeas corpus

alleging five constitutional violations during the course of his trial court proceeding.

In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No. 1222336§:, is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph
true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of ghirtyiyears in Cause
No. 1222336D , is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-
stitution.

In ground number_three, Applicant contends that he _was denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d), Texas Penal Code; thereby making his
thirty year sentence void.

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
'failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement againsu}himself.

Argument And Authorities
Ground Number One.

In ground number one, Applicant argued that his §entence of thirty years in
Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

state's Reply To Petition For writ of _Habéas. corpus

In addressing ground number one, the district attorney argued that relief should
be denied simply because -TPthe indictment alleged two prior felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as`a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas
Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clainlthat the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and
R.R. Vol#Z, pp. 109 through pp. 114).

;Applicant maintains that because the "Judgment of Conviction and the Reporter's
v Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#2,pp.109 through pp.114) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's
findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1).

Habeas Court Memorandum/ Findings

On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive.
The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp.l)-

Applicant's Traverse Tb The Trial_Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation to ground number one based upon the fact that the trial
court's findings is contradicted bY, the lrecord of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-
ment of Conviction By Court and (R.R. Vol#2,pp.109 through pp.114).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only- one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewi$e, a review¢gfthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sené§gceigf thirty years void. Moreover, the record shows that
the district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement a1iegation, the trial court illegally concluded:

!Based upon the foregoing evidence and the information that's been provided to

, . § _
the court and your admlsslon, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the

State of Texas versus Matthew C. Cotten. The respective enhancements are also found _

y .

to be true. In the cause numbers, with the exception of 1227111, the Court hereby
sentences you to 30 years in the Institutional Division of the Texas Department- -of
Criminal Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years ~
in the Institutional Division of the Texas Department of Criminal Justice." (R. R.
Vol#3, pp.86, line 18 through pp.87, line1-7). `

.é

Section 12;42(d); Texas Penal Code governs the punishment for habitual felony‘
offenders, and requires the State to present evidence of two prior felony offenses '
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508,
511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held _that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish-
ment`can not be legally 'enhanced. Cole V. State, 611 S.W.Zd 79, 80(Tex. Crim. App.
1981);'Mize11 v. state, 119 s.w.3d at 806(Tex. App. 2006); Jordan v. state, 256
s.w.3d 290, 293§Tex.crim. App. 2008). `

Here, in applicant's case now before the Court of Crim§nal Appeals the record
shows that at the§i§i§ment hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain§'any evidence
v01#3,bp.7, line 6 through pp.a, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the

of any prior felony convictions. (R.R.';
enhancement allegations. Conseguently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.
Ground Number Two and Three

In ground number two, applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations
reguired by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

In ground number three, Applicant argues that he was denied dueqiprocess and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his

thirty year sentence void.

State's Reply To Petition For Writ Of Habeas Corpus

in addressing grounds two and three, the district attorney argued that relief
should be denied because:

"The record herein is not totally devoid of evidentiary support for enhancing

the applicant's sentencing range." (See; State-3 Reply,pp_§),

Mbre specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The_applicant waived his right to
thegappéaran&§,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding applicant's claim that the State presented "no
evidence" to support. the essential elements of the enhancement paragraph as required
by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-
tution. (State's Reply, pp.5-6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a criminalfsoffense
be convicted upon his plea without sufficient\evidence to support the same. Articke
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.Zd 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.Zd 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. louisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-~
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
. did not con$ain certified copies of prior iudgment of'¥convictions against the appli-
cant. Gar¢ia V. State, 930 S§.W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
a stipulation to be considered as evidence where the plea is before the.court, the state
must introduce a copy of the iudgment and sentence in each case for enhancement purpose.
Messer, 729 S.W.Zd at 698; Stone, 919 S.W.Zd at 426; EX parte Brown, 757 S.W.Zd at
368,- Ex parte Rich, 194 s.w.zd at 513.

59
92

_Here, in applicant's case nouibefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a judicial confession admitting to all of the-allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
y examination of witnesses, and consented to oral and written stipulations of

evidence. (See§ State's Reply, pp.5).

In conclusion, the record clearly shows that the State denied applicant due
process aid due cou§se of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas.Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Conseguently, no
rational trier of fact could have found the essentiét elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum-/ Findinqs

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.

The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp. 1).

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
_evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his iudicial confession standing alone is not enough
to support proof of a final \¢pnviction, where the P;S.I. report did not contain
certified copies of prior iudgment of convictions against him. See: Garcia V. State,
930 S.W.Zd 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.Zd at 368; Ex parte
Rich, 194 s.w.3d at 513.

*The Texas Court of Criminal Appeals have long held that in all criminal presecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the iury,-in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
Criminal Procedure; Sténe V. State, 919 S.W.Zd 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S.W.Zd 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies
of prior iudgments of convictions against the applicant. Garcia, 930 S.W.Zd at 623.
In summary, the State must introduce a copy of each iudgment of conviction, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; EX parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See; R.R. Vol#Z,pp.ll4,'line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wece
"no evidence" of prior convictions contained within the P.S.I. report. §Thus, based`
upon the record{ no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
_must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

In ground number four and five, Appli£ant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State Constitution when he failed to read the full "Miranda Warning" to him as required
by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure.

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Constitu-
tion when he threatend§€physical harm to him and his property in order to coerce him

to give a self-jncriminating statement against himself.

State's Reply To Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable
_because these same complaints were reiected on direct appeal." (See; State's Reply,
pp.6).

However, the district attorney has failed to address applicant's constitutional
questions of law and fact regarding additional evidence that is being presentéd;;for
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and reiected on direct appeal Fare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.Zd at 852(TEX. Crim. App.1992); Ex parte Goodman, 816 S.W.zd
383, 385(Tex. Crim, App. 1991); EX parte Russell, 738 S.W.Zd 644, 646(Tex. Crim.App.
1986).

Habeas Court Memorandum / Findings

In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not ;tognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial- court's recommendation that ground four and five be denied based upon the trial
court's finding that: ` y

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that
are based upon new theories that were not presented on direct appeal. Ex parte Good-
man, 816 Si»w',":zd 383, 385(Tex. 'crim. App. 1991); Ex parte Russeil, 738 s.w.zd 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally fsunavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussier, 846 S. W.Zd at 852
(Tex. Crim. App. 1992)(granting re1ief due to lack of jurisdiction); Ex parte Russell,
738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.W.2d 189(Tex Crim.App. 1982)(granting relief
do to the improper excusal of a veniremember): EX parte Clark, 597 S.W.2d 760(Tex.
lCrim;App.1979)(granting relief due to the trial ;court's failure to apply the law to
the facts of the case). l

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial zcourt-erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant' s habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of law, pp.14).

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number‘ one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's findinge<
that --"applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause remanded back to
the trial court for a new trial.

'Likewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review
of applicant's fifth ground for review on his habeas corpus petition shows that he
alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth Amandment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incriminating

statement against himself. (See: Applicant's Memorandum of law, pp.17).

In summary, after comparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that
the claims are not the same because applicant is now presenting a constitutional issue
loft¢fundamental error based upon a theory not alleged on directdappeal. Conseiuentlyr
the trial court's finding that --"applicant's Miranda and due process grounds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-
ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one,.two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Moves The Court,

Respectfully Submitted:
Matthew Cotten No. 1826716

`coffield Unit

2661 F.M. 2054
Tennessee Colony, Texas 75884

10

Certificate Of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy of this foregoing instrument has been served upon Steven W. Conder, Assistant
District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th
day of February, 2015. v

Siqn= fbifo wr\./
Matthew Cotten No. 1826716

Applicant , Pro se ; :;

11

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Uhjt No. C-432-010372-1227019-A

Ex Parte , In The 432nd Judicial

District Court

em§ mcm¢oa'coo

Matthew Cotten

Applicant's Traverse To The Trial Court's Findings Of Facts

And Conclusion Of law
To The Honorable Court Of Criminal Appeals:

»Ngw‘CcueS, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of
habeas corpus{ And in support-thereof will show this court the following:

Grounds For Relief

11111iiOn:January:A;;ZO15;;AppIicanthfiled!this¢foregoing#writ-of¢habeasscofpusl#-¢-#-~--#--3

 

In ground nuber one, Applicant contends that his sentence ofthirty years in Cause
No.1227019D _, is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227019D , is void because the State presented "No Evidence" to support_the l
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he ,was denied due process and

due course of law when the State presented "no evidence" to support the enhancement

nallegations as required by Section 12.42(d), Texas Penal Code; thereby making his

thirty year sentence void.

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating _

statement against' himself.

Argument And Authorities

Ground Number Onel

In ground number one, Applicant argued that his sentence of thirty years in
Cause No. 1227019D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

state's R_e`piy To Petition For writ of Habeas. corpus

ln address1ng ground number one, the d1str1ct attorney argued that relief should

 

MN"-'be denied simply because'='"the indictment"alleged two prior'felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
`Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
~his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, DD.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clain1 that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the habitual

offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1- 5, and
R. R. Vol#Z, pp. 109 through pp.114).

y

1Applicant maintains that because the "Judgment of Conviction and the Reporter's
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#Z,pp.lOQ through pp.114) there is no evidence contained within the record

to support the trial court's habitual offender finding§ Therefore} the habeas court's

 

findings is not entitled to the presumption of correctness under 28 U S. C. § 2254(e)(1).

Habeas Courtlkmmnxnuhmv Findings

On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting _`
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and facts

In addressing ground number one, the trial court simply stated without any
decussion¥-"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp.l).
Applicant's Traverse Tb` The Trial`Court's Findings

_ Applicant now contends that the Court of Cr1m1nal Appeals should not adopt the

trial court!s recommendation to ground number one. based upon the fact that the trial

court's findings is contradicted by the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of Conviction- By Court and (R.R. Vol#Z,pp:lOQ through pp.114).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a reviewlgfthe punishment hearing shows_ that the State
never presented any evidenceto support the enhancement allegations thereby making`
the trial court's sentence of thirty years void. Moreover, the record shows that‘
the_district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested{ (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1~15). Nevertheless,, without any evidence beingpresented at trial to

support the enhancement allegation, the trial court illegally concluded:

FBased upon the foregoing evidence and the information that's been provided to

;.. ,.A 1 1 .4 .. . 11 ' v .;¢_
15 x 111 w (1-
. .»

s -11'~=~»221¢&1=1

the cou§t and your admlsslon, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled §wthe.

State of Texas versus Matthew C. Cotten. The respective enhancements are also found

--.»-

to be true. In the cause numbers, with the exception of 1227111, the Court hereby
_ sentences you to 30 years in the lnstitutional Division of the Texas Department of
3=*==z=€rrmrna4~6dstrce==§n»~€ause~No==iQQ$&&iz=the€ourtz*h“'h1”'” '“"
'in the Institutional Division of the Texas Department of Criminal Justice." (R. R.
Vol#3, pp. 86, line 18 through pp.87, line1-7).

 

 

_'es‘you~to“%@“years

Section 12:42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S W.Bd 508,
511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held ,that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punishe
ment can not be legally enhanced. Cole V. State, 611 S. W.Zd 79, BO(Tex. Crim. App.
1981); Mizell V. State, 119 S. W. 3d at 806(Tex. App. 2006); Jordan V. State, 256~

. s. w 3d 290, 293(Tex crim; App. 2008). ' ‘

_~»Jsfi¢s~-Herepwinwapplicantls~case:nowsbeforeethe*»Court of CriminalwAppeals~the-record~~¢»»_~.

"shows that at the F;“:”“`

hearing th§ Stat§ only asked th§ court td tak§ ]ud1c1al

 

notice of the presentence investigation report which did not contain. any evidence
of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations .true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three l

§ In ground number two} applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations
required by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

t - In ground number three, Applicant argues that he was denied due ,process and-
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d), Texas Penal Code; thereby‘making his

thirty year sentence void.

 

 

sss==z=Sfif§*§=R§§TY=TE=P§tTETEE°F§T“Wfo=Of“HHbEES curp§§“""`i » `* ~v rfij*_ ii

7In addressing grounds two and three, the district attorney argued that relief

should be denied because: l 4 f

"The record herein is not totally devoid of evidentiary support for enhancing _

the applicant's sentencing range." (See; Statels Reply,pp_§),

More specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
` judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The_applicant waived his right to
thehappéarancé,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional
1 r;questions:of;lawaandtfact”regarding:applicant"s"claimwthat:the;Statenpresented:lno;el 111 1
evidence" to support*:the essential elements of the enhancement paragraph as‘required

by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;

and due process under the Fifth and Fourteenth Amendment of the United States Consti-
tution. (State's Replyi pp.5-6). ' ' `

Applicant maintains that proof of prior felony convictions.requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-l
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the iudge or the iuryb.in no event shall a person charged with a criminal.;offen`sev

l be convicted upon his plea without sufficient evidence to support the same. ArticLe.

’ 1.15, Texas Code Of Criminal Procedure; Stone V; State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S. W.2d 694, 698(Tex. Crim. App.1986); Stokes V.
Procunier, 744 F. 2d at 483; Thompson V. louisville, 362 U. S. 199, 80 S. CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves--
tigation report is inadmissible as proof of a final conviction where the P. S. I. report
1 did not con¢ain certified copies of prior iudgment of convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.l996). Likewise, in order for
a stipulation_ to_ be considered as evidence”where the_ plea is;hefore t§e courtL,§he stat@;___
4nmst introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at

368; EX parte Rich, 194 S.W.Bd at 513.

Here, in applicant's case novlbefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
_ examination of witnesses, and consented to oral and written stipulations of
evidence. (See: State's Reply, pp.5),

' In`concluslon, the record clearly shows that;the §tate“denie§ applicantwdue"_____~~__’
process and due course of law when the district attorney presented "no evidence"

at trial to support the enhancement allegations as required by Section 12.42(d),

Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth

and Fourteenth Amendment of the United States Constitution. Consequently, no

rational trier of fact could have found the essential elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Courtbkmtuandum_/ Findings

In addressing ground number two and three, the trial court erred in stating:
- "The Court finds that the applicant' S judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.-

The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp§ 1).

, of prior 1udgments of_ convlctlons against  the applicant. Garcia,1930 S. W.Zd at 623

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial

court' s finding that--"applicant's 1udicial confession (standing alone) provides some

levidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his 1udicial confession standing alone is not enough
to support proof of a final »¢onviction, where the P.S.I. report did not contain
certified copies of prior iudgment of convictions against him. See: Garcia V.`State,
930 S.W.2d 621, 623(Tex. App. 1996); EX parte Brown, 757 S.W.2d at 368; Ex parte

Rich, 194 S.w.3d at 513.

The Texas Court of Criminal Appeals have long held that in all criminal_presecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the iury, in no event shall a person charged with a criminal offense be_convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of

'-Criminal Procedure; Stone V. State, 919 S. W.2d 424. 426(Tex. Crim. App. 1996); Messer

V. State, 729 S. W.Zd 69.4, 698(Tex. Crim.App. 1986). _LIkewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as

.S. I. report did not contain certified`copies

    

proof of a final convictlon, where th

  

 

"`In summary, the Staté must introduce a copy of each 1udgment of convlctlon, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; Ex parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals; the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pres
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.114, line
16-21) and (R.R. Vol#3,pp. 7/ line 6 through pp.8, line 1-15). Furthermore, there wfre
"no evidence" of prior convictions contained within the P.S.I. report. ZThus, based
upon the record¢ no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
must be overruled and_applicant's case remanded back to the trial ccourt for a new

punishment hearing.-

Ground Number Four And Five

In ground number four and five; Appligant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United

State Constitution when he failed to read the full "Miranda Warning" to him as required

=======by=Aftfc1e=BB??Q=§=B%a%$QW$=Texasacade=of=€rfminal=Plspeedgier '

In ground number five,_Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United_States Constitu-
tion when he threatend .physical harm to him and his property in order to coerce him l

to give a self-jncriminating statement against himself.

State's Reply.To Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued thatv

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable`
_because these same complaints were reiected on direct appeal."_(See; State!s_Reply,

pp.€)-

'W'aahsei£ut§¢nal"

 

"~M»M~w»e…»§§§évérr#ené~ais€r1¢1¢attornéy#ha§#§aiiéd~towadarééswa§srfagg ’
111 .;_ -.L;ue`sl€§c§rl§:é§;ié§,`::;é`rid..jf`.éé£..:£é&éi:£i'ihg. la'dc`ii£iéfléi§.évi`de'r{éé, 1£11&£ lislbe`ih`d fp£és`éh£éa:i fbi 1 11 _ f
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and reiected on direct appeal _are not cognizable on habeas corpus} Ex parte
Schuessler, 846 S.W.2d at 852(TEx..Crim; App.1992); Ex parte Goodman, 816 S.W.2d

383, 385(Tex. crim,'App, 1991); Ex parte Russeil} 738 s.w,Zd 644, 646(Tex; crim.App.
1986). - - _

Habeas Court Memorandum / Findings

v __In addressing ground number four and five, the trial court erred in Stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

n

n pp. 1\.

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
__ggurt's finding that: ___-’__-”__‘*r____~_ *_F"__“_w**__~__*‘__‘

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

'Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that-
are based upon new theories that were not presented on direct appeal. Ex parte Good-
man, 816 S{MbZd 383, 385(Tex. Crim. App.-1991); Ex parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally .unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schuss£er, 846 S. W.2d at 852
(Tex. Crim. App. 1992)(granting relief due 9to lack of 1urisdiction); Ex parte Russell,
738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
_1-~1prior; conviction), Ex partewBravo, 7Q2MS. W.2d 189(Tex Grim.App. 1982)(grant1ng~re11ef

do to the improper excusal of a veniremamber): Ex parte Clark, 597 S W.Zd»760(Tex. ¢*M-~

Crim.App.1979)(granting relief due to the trial court's failure to apply the law to
the facts of the case).

 

l Here, in applicant' s case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the'
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warnin " to him as
required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of Iaw, pp.14). `

After comparing applicant's ground number four`in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal¢ Consequently, the trial court's finding

that --"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal"-- must be overruled and the cause remanded back to

the trial court for a new trial.

7Likewise, a review of applicantfs-second claim on direct appeal shows that he
argued that_his waiver of his statutory rights was not knowingly, intelligently, and

voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review

‘of applicant's fifth ground for review on his habeas corpus petition.shows that he

alleged that --“Detective Anderson violated his due process right under the Fifth and
Fourteenth Amendment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incriminating

statement against himself. (See: Applicant's Memorandum of Law, pp.17).

In summary, after comparlng applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that

the claims are not the same because appllcant is now presenting a constitutlonal lssue

 

the trial court' s finding that --"applicant's Miranda and due process gf6unds for re- `
lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended_by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative( applicant's cause should be

reversed and remanded for a new trial based upon grounds number four and five.'Appli¢

cant So Moves The Court.

Respectfully Submitted:
-Wajzzzw£uz;t/
Matthew Cotten No. 1826716

Coffield Unit

2661 F.M; 2054
Tennessee Colony, Texas 75884
1n

of fundamental error_based upon a theory not alleged_ on direct appeal. Conse;uently,

Certificate Of Service

I, Matthew Cotten, Applicant, Pro Se, do hereby certify that a true and correct
copy of this foreqoinq instrument has been Served upon Steven W. Conder, Assistant

District Att°rne'>" 401 W. Bell<nap, Fo'rt worth, Te'xas .76196-0201. Executed on this 25th _
day of February, 2015. - _, _ _

Sicm: NM/~/ A)<Q>eé§`/
Matthew cotten N<>. 1826716`

Applicant, Pro se

 

 

'11

writ N<». c--432_.010373-1227020-A

Ex Parte In The 432nd Judicial

District Court

Tarrant County, TeXas'

mlmumeoocm

Matthew Cotten

Applicant's Traverse Tb The Trial Court's Findings'Of Facts

/

And Conclusion Of Law
Tb The Honorable Court Of Criminal Appeals:

Now'Ccnes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court' s Findings Of Fact And Conclusion Of Law" asking the
Court Qf Criminal Appeals to grant this foregoing State post conviction writ of
habeas corpus. And in support thereof will show this court the following:

-Grounds Fbr Relief _
,nalrr;;z;:;;Oananuary;AT:ZOTS?MApplicantufiled;thislforegoino@writ¢ofwhabeas$c§npusl@lsle»¢#il¥ll¢#

`_;;j alleging five constltutlonal violations during the course of his trial court proceeding._

 

In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No.1227020D , is illegal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227020D , is Void because the State presented "No Evidence" to support the-
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he ,was denied due process and
due 1course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d), Texas Penal Code; thereby making his

thirty year sentence void.

n In ground number four, Applicant contends that Detective Anderson violated his .
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure. “

In ground number five, Applicant contends that Detective Anderson violated his

 

"Due Process Right“ under the-Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement againstf himself.

Argument And Authorities

Ground Number One

t

In ground number one, Applicant argued that his sentence of thirty Years in
Cause No.1227020D is illegal because the""Judgment Of Conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For Writ Of Habeas Corpus

In addresslng ground number one, the dlstrlct attorney argued_ that relief should

WWW”~b-e denied~simply~because"r“the indictment~alleged twp'prior felony convictions?'a

2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
'burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clain1 that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the habitual _

offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and'
R.R. Vol#Z, DD§ 109 through pp. 114).

_Applicant maintains that because the "Judgment of Conviction and the Reporter's
v Record" at trial shows-that applicant plead "True" only once during the entire course
of trial, and -the trial court found only one enhancement paragraph to be true (See:
R¢R. Vol#Z,pp.lOQ through pp.ll4) there is no evidence contained within the record

to support the trial court's habitual offender finding. Therefore, the habeas court's

 

findings is not entitled-to-the presumption of correctness-under 28 U¢S.C.‘§2254(e)(l);

Habeas Court Memorandum/ Findings

On February 2} 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See:-Memorandum / Findings,

pp.l).
»~Applicantf§ilTZaver§elT§?»ThéiTrial`Courtistindings~'¢~»H»- ~' ¢¥TT` JYLLJXMllml l

npquAppl-icant.¢_now_.,contends,..thatM~the~.Court..»of…Crimi»-nal_¢»hppealseshould»noteadopt'.~the…-~- _______ g
W…Mtrialvcourt!s~recommendationwto~groundwnumber@one~basedwupon~the»fact~that~the~trialA~~~»F~

 

 

court's findings is contradicted bY, the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of Conviction- By Court and (R.R. Vol#2,pp.109 through pp.ll4).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a, review@gfthe punishment hearing shows _that the State
never presented any evidenceto support the enhancement allegations thereby making

l the trial court's sentence of thirty years void. Moreover, the record shows that

v the district attorney only asked the trial court to take iudical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement a11egationy the trial court illegally concluded:

vBased upon the foregoing evidence and the information that's been provided to

3

-»=~w
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x
o
21

_...,`T.;.l
..~:;'¢rz.;»e:.~.m-

the cou§t and your admlssion, the court hereby finds you guilty of all five caus§
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled§thecg
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby

sentences you to 30 years in the Institutional Division of the Texas Department of

 

 

 

 

"*°*"_€I°l ______ "Ih‘i‘rra:F`T]u_Sti'CE. iu ta'IISe_"NO_._ 122 /111, theCourt nereDy sentences y<)u_ to 20 year§_ »

in the Institutional Division of the Texas Department of Criminal Justice." (R.R.
Vol#3, pp. 86, line 18 through pp. 87, 1ine1- 7). :

Section 12;42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508,
511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish~
ment can not be legally enhanced. Cole V. State, 611 S.W.2d,79, 80(Tex. Crim. App.
1981); Mizell V. State, 119 S. W.3d at 806(Tex. App. 2006); Jordan V. State, 256
s. w.sd 290, 293(Tex.crim. App. 2008) ` `

'~-MHererw1n"app11cant's»case now-before~the Court of Cr1m1na1 Appeals~the»record »4¥1
sh6ws that at thel :”: ` “

notice of the presentence investigation report which did not contain any evidence

hearing the State Qn1y asked the court to take 1ud1c1al ;:;;`

 

of any prior felony convictions. (R. R. Vol#3,pp. 7, line 6 through pp.8, line 1_15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled _and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three

In ground number 'two, applicant argued that his sentence of thirty years is
void because the State‘presented_"no eviden:e to support the enhancement allegations
required by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

'\ In ground number three, Applicant argues`that he was denied due process and §_
due course of law when the State presented "no evidence" to support the enhancement
allegations as reguired by Section 12.42 (d), Texas Penal Code;-thereby making his

lthirty year sentence-void{

 

=“=F===SEEEEFi=R§pTy=TE=Petition nor writ oi¢Habeas torpus

In addressing grounds two and three, the district attorney argued that relief

should be denied because:

\
"The record herein is not totally devoid of evidentiary support_for enhancing

the applicant's sentencing range." (See;_gtatevs Reply,pp,§),

More specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
judicial_confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The_applicant waived his right to
thehappearang§,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional

2unquestions;of;law;and:fact;regarding;applicantislclaim;thatfthe:State;presented;!no;_1,,_~1;_

-_ _ ` evidence " to""SuPP°rt-' " "°`h`e ". esse??.i.a§ §e§l§‘ir£‘?r}§§`. 911 PP?§ Fin_¥l%¥§‘€‘:`ll‘??§ P.a§?§]ialp}}§§§: E?SPHSQ l 1 _ _ 11 '

by Section 12.42(d); Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-
tution. (State's Reply/ pp.5-6). '

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross- n
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or`whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a criminal; offense

l be convicted upon his plea without sufficient evidence to support the same. Article
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. louisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-

tigation report is inadmissible as proof of a final conviction where the P. S I. report

1 did not contain certified copies of prior iudgment of convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
a s.+'i`pul atinn i-n .be onnsidere,gaas;e;\;,i;denge_:me§_eqt`he_.nlpa 'i_c:-bofor¢=_rthe._com:.+_.,_+hs=-.Si-a+o-___
must introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone, 919 S;W.Zd at 426; Ex parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 s.w.zd at.513. ' '

Here, in applicant's case nom¢before the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
_ examination of witnesses, and consented to oral and written stipulations of

evidence. (See: State's Reply, pp.5).

`ln;¢§t@!i§§$ib;§h§lfé§@t§r§l§arlz§§h§i$-tbét_tha§§iété-@éui?§§§§§li§én§l§§§;§-
process add due course of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12;42(d),
- Texas Penal Code; Article 1 15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essential elements of the enhance-

' ment allegations true beyond a reasonable doubt.

Habeas Courtbkmrmandum / Findings

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.

The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

ppa ].)»

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
.evidence supporting the-enhancement of his-sentencing range to habitual offender
status." Applicant maintains that his iudicial confession standing alone is not enough
to Support proof of a final z¢onviction, where the P.S.I. report did not contain
certified copies of prior iudgment of/ convictions against him. See:'Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 s.w.3d at 513. d v "

The Texas Court of Criminal Appeals have long held that in all criminal presecu-
ltions regardless of the plea or whether the punishment is assessed by the judge or
the iury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
’Criminal Procedure; Stone V. State, 919 S.w.Zd 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S. W.Zd 694, 698(Tex. Crim App. 1986).L1kewise, allegations of prlor _
convictions contained within the presentence investigation report is inadmissible as

proof of a final convlctlon, where the B. S. I_. report did not contain certifiedrcopies m_;”

 

 

_of_ prior judgments of__ convictions against the applicant. Garcia, 930 S. W..2d at 623.-1..0.,2

 

In summary, the State must introduce a copy of each iudgment of conviction, in each
case used for enhancement purpose. See: Section 12. 42(d), Texas Penal Code; Terrell
Y. State, 228 S.W.3d 343 at 346; Ex parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.RQ Vol#Z,pp.114, line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence"~ of prior convictions contained within the P.S.I. report. fThus, based 5
upon the record¢ no rational trier of fact could have found the enhancement allegations'
true beyond a reasonable doubt. In conclusion, the recommendation of the trial lcourt l
nmst be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

_ In ground number four and five, Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State\Constitution when_he failed to read the full "Miranda Warning" to him as required
s"=-*-=by=pa=tieiaee==z-z=§~”s<~a=r{ 21 , rees Wae~;,i trainer-rr ate_eaa;e. `

 

 

 

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Constitu¢
tion when he threatend, physical harm to him and his property in order to coerce him

to give a self-incriminating statement against himself.

State's Reply To Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

FThe applicant's Miranda and due process grounds for relief are not cognizable
»:because.these same complaints were reiected on direct appeal." (See; State!s Reply,
pp.6). ' l

~Howeverwthedls;rlctattomeyhassuedtoaddressappllcantS»~Constltutwnal -~

2;;1 1122 estions2c`§f21aw1ana_ .'fa'c?c`§ §§ga{r`&i"hq;a£iai"£i}§r{éi levi &éhé"e: theft Eé,.l]§éihg: ,b"re`s§e“ntéqlforl `.;1.11 §ll
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal; This evidence creates an exception to the general rule that claims,
raised and reiected on direct appeal are not cognizable on habeas corpus. EX parte
Schuessler, 846 S.W.2d at 852(TEx.'Crim. App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. Crim, App, 1991); Ex parte Russell, 738 S.w.2d 644, 646(Tex. Crim.App.

1986).
Habeas\Court Memorandum / Findings

In addressing ground number four and five, the trial court erred in stating:
FThe Court finds that the applicant's miranda and due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse Tb The Trial Court's Findings,

v Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
court's finding that: _ ` v~_ `

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that
are based upon newitheories.that were not presented on direct appeal. EX parte Good-
man, 816 Sjw;Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); EX parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law '
is clear, although habeas corpus is traditionally .unavailable to review matters'which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schuss£er, 846 S. W.2d at 852
(Tex. Crim. App. 1992)(granting relief due to lack of 1urisdiction); Ex parte Russell,
738 S. W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void

12prior2conv1ction),2Ex parte Bravo, 702:S W.2d 189(Tex Crim.App._1982)(granting*relief____;M

do to the*improper excusal of a veniremamber): Ex parte Clark, 597 S W:Zd 760(Tex ~~~~~~~~~~~ ~

 

Crim.App.1979)(granting relief due to the trial court's failure to apply the law to_
the facts of the case).

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals(
pp. 4). However, a review of applicant' s habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective_Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warnin " to him as

required by Article 38 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of Iaw, pp.14). '

v After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal"-- must be overruled and the cause remanded back to

           

the trial court for a new trial.

likewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp. 5). However, a review
of applicant' s fifth ground for review on his habeas corpus petition shows that he
alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth Amendment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incriminating

statement against himself. (See: Applicant's Memorandum of Law, pp.17j.

'I,n Swmarv after swearing applicant'$_ ground mber five. in.,hiS habeas CorPuS
petition to applicant's claim number two on his direct appeal, it becomes clear that

the claims are not the same because applicant is now presentlng a constitutlonal 1ssue

..-of fundamental error.based upon a theory not alleged on direct appeal._ Consequently, ,;… _

 

 

the trial court's finding that --"appllcant's Miranda and due process grounds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based '
upon grounds one, two and three. Or in the alternative, applicant's cause should be

reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Moves The Court.

Respectfully Submitted:
Matthew Cotten No. 1826716

COffield Uhit

2661 F.M. 2054 _
Tennessee Colony, Texas 75884
1f\

certificate of service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy of this fcreqoinq instrument has been served upon Steven W. Conder, Assistant
-~_Distr;gt Attg£pev, 401 W. Bel§§gp, Fort Worth, Texas 76§96-0201. Executed on this_g§;hm_*;~~

day of February, 2015.

Siqn: i}yzd:ttzkbu»_/ z%izzz;;_¢/ .
Matthew Cotten No. 1826716

Applicant, Pro se

11’

 

'_.in`-it. Ns. c~4325010374-1227921-A~_

 
 
 
   
   

 

rn ms 432nd mem -'j

niskistcmse l

 

 

" ;1`£".1‘;'?=`¢_ v .~".-'-" '..“- 4 ` \~.

In ground nuber ones Applicant contends that his sentence of thirty years in Cause
No. 12270211) ,_ is i‘alegai because the "Judgment of conviction By c`ourt" `and the
"Record At Trial" shows that the trial court found only one enhanceth paragraph
true; thereby making his punisl'nnent excessive.

r.

In ground maher two, Applicant, contends that his sentence of thirty years in Cause
No. 12276211) , is void because the State presented "No Evidence" to support the `
enhancement paragraphs alleged in the indictment, as required by Section 12. 42(d),
Texas Penal Code, thereby denying him due process under the State and Féderal Con~
stitution. * ¥_i;

if

In ground maher three, Applicant, contends that he was denied due process and

due course of law -:when the State presented “n_o evidence" to support the enhancement

allegations as required by Section 12 42(d), Texas Penal Code; thereby making his
thirty year sentence void.

-'/\

In gromd maher four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment,:";l wh`en he
failed to read the full "Miranda Warning" as required by Article 38 22§ 3(a)(2),
Texas Code of Criminal Procedure.

~, .j ;¢»
y

11
j.

In ground namer five, Applicant contends that Detective anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

 

": n mt And Authoritie€

 

In ground number one, applith argued that his sentence of thlrty years in
Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and y
the "Record At Trial" shows that the trial court found only one enhancement para-
graph true, thereby making his punishment excessive. "

: :\¢ \¢,S
. `jr §- 4 . "-- ',: _l'

State's Reply 'Do: Peti_tion For `Writ Of Haheas Corpus

In addressing ground nuncber one, the district attorney argued that relief should
be denied simply because --'.'the indictment alleged two prior felony convictions:` a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For writ Of Habeas 4
Corpus, pp.4). '

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the records affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction "By Court'.' and
the "Reporters Record at trial", both affirmatively reflects that the trial court only

found one ermanceme"nt paragraph true, thereby acquitting applicant of the'habitual
_ offender allegations. (See: Judgment Of Conviction By Court, Appendix No. .1-5, and

R.R. Vol#Z, pp. 109 through pp. 114).

Applicant, maintains that bm`ause the "Judgment of Conviction and the Reporter’s
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancmnt paragraph to be true (See: .
R.R. vsi#z.ppab§ through pp.114) there ispno evidence contained within the gscsra
to support the triaz comrt's habitual offender finding. Therefore, the habeas?'qcourt's
findings is not entitled to the preemption of correctness under 28 t!.S.C.;: §2,254(.e)(1).

mbeascourt!icnorandxmvf'imiings

On February 2, 2015, the habeas court issues it's memorandum / Findings" adopting
the district attorney' s interpertation of the events on all five constitutional claims
without addressan applicant 's questions of law and facts "

In addressing ground numbsr_one, the trial court simply stated without any
decussion,-"The' court finds that the applicant's thirty year sentence is not emessive.
The court reconmends that this ground for relief be denied." (See: Mezm)randum / Findings,
ppol)o ‘ ` " ` ` `

Applicant's Traverse lb 'Ihe Trial court's rindings

Applicant now contends that the Court of Criminal appeals should not adopt the
trial court's recommendation to ground number one based upon the fact that the trial
court's '_jfindings is contradicted by>the record of evidence at trial which shows
that the trial court only found one enhanth paragraph to be true. (See: Judg-

` mem ss convictions ny court sna;?§(n.n. vcisz,pp.ioe through pp.114).

A miew of the "Judgment of Conviction By `Oou_rt"- at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancment paragraph true. (Sm¢ Judgment of ConvictionBy Court-Neiver of
JUry Trial"). Likewise, a reviswofthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court'ssgnt_ence ¢of; thirty years void. Moreover, the record shows that `
the district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.B, line 1_-15).; Nevertheless, without any evidence beingpresented at trial to
support the snhanceuent allegation, the trial court illegally concluded:

"}Based upon the foregoing evidence and the information that's been provided to

3

the court and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby
sentences you to 30 years in the institutional Division of the Texas Department of
Criminal Justice. ln Cause No. 1227111, theCourt hereby sentences you ta6 20 years
in the Institutional Division of the ‘I‘exas Department of Criminal Justice.'¥ (R.R.
Val#3,pp.86,line 18 through pp.867,_line1-7). '

Section 12. 42(d), Texas Penal Code governs the punishment for habitual felmxy
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Richy 194 S.W. 3d 508, 1
511(Tex.' Crim. App.2006) IN explaining how Section 12 42(d) operates, the Court of
Criminal Appeals have consistantly held that the State must present evidence which

   

the proof at trial fails to correspond with the enhancement allegations, the punish-

ment can not be legally en_ha_nced. Cole V. State, 611 S.w.2d 79, 80(Tex. Crim. App., ~‘
1981), Mizell V6. State, 119 S. W.3d at 806('I“ex. App. 2006); Jordan V. ‘State, 25_6
s.w.ad 290, 293('1~@¢ crim. App. 2008)_. ' ‘ »‘ ' "' '

11
.~,{ '

“Here, in applicant' scase now before the Court of Criminal Appeals the record
6 66 '66 hearing the State only asked the court to take judicial

A~> '

     
 

shows that at th'e66'

notice of the presentence investigation report which did not contaim§ any evidence

of any prior felony convictions. (R.R. : Val#3,pp-.7, line 6 through pp.8, line 1_.-15)
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancene"nt allegations true beyond a reasonable doubt. In conclusion, the 6
findings of the trial court should be overruled and applicant's sentence set aside
and remanded back tothe trial court for a new punishment hearing. "

In ground nimmer two, applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations

required by Section 12. 42(d), Texas penal Code, thereby denying him due process
under the State and Federal Can_stitution.

aj

In ground number three, Applicant argues that he was denied due proce§s and
due course of law when the State presented "no evidence" to support §§é enhancement
allegations as required by Section 12 42 (d)`, Texas Penal Code; thereby mak'1ng his
thirty year sen§ence voi§. 1 ' ' ' ‘

   

 

state's_ Repiy ‘ro petition For writ of levees corpus ' " 1 . ,

   

to support the xe ’_ t allegations based upon (1) "The applicant entered a z '
judicial confession admitting to all of the allegations in the indictment,‘ including

the enhancement and habitual allegations; and (2) "The applicant waived“h1s right to
the appearnce 4¢F:?on":?1:'ontation and cross-examination of witnesses, and consented to ora1
and written stipulations :o ;evidence." (State's Reply, pp.5). ,_ ` `

 

 

   

 

 

    

the diet ict attorney failed to address applicant's constitutional
questions of law and fact regarding applicant' s claim that the State presented "no
evidence" to support the essential elements of the enhancement paragraph as required
by Section 12 42(d), 'I‘exas Penal Code; Article 1 15, Texas code 6f_ ¢rimin'al Procedure;
and due process under the Fifth and Fourteenth Amendment of the tmited ‘States Consti-
tution. (State s Reply, pp.S-G). ('" "

However,'.;

l Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's judicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punisl'ment is assessed
by the judge or the jury, in no event shall a person charged with a criminal § offense
be convicted upon his plea without sufficient evidence to support the same. Article
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.w.Zd 424, 426 (Telc
Crim. App. 1996); Messer V. State, 729 S.W.2d 694, 698(Tex. Crim.App.l986); Stokes V.
Procunier, 744 F.2d# at 483; Thompson v. Iouisville, 362 U.S. 199, 80 S.CT. 624(1978). .

/

g/.

Furthermore, proof of prior convictions contained within the presentence inves-
tigaticm report "is~inadmissible as proof of a final conviction where the P.S."I. report
did not contain ,mrti£j.‘ed cdpies of prior judgment oi’i'.,;`convictions against the appli-
cant. Garcia V. State} 930 S..w.Zd 621, 623(Tex. Crim. App.1996). Likewise, in order for
a stipulation to be considered as evidence where the plea is before the court, the state
met introduce a copy of the judgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at GQB_i Stone, 919 S.W.2d at 426; Bx parte Brown, 75‘7_ S.w.Zd at
368; m parte Rich, 194 S.w.£d at 513.

Here, in applicant's case nwit before the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the ~
enhancing of applicant's punishment at trial area . _ "

*The applicant entered a judicial confession admitting to all of the allegations

in the indictment, including the enhancement and habitual allegations

*The applicant!:waived his right to the appearance, confrontation and cross-
examination of witnesses, and consented to oral and written stipulations of
evidence. (See; State' s Reply, pp.5). '

In conclusions the record clearly shows that the State denied applicant due
process and due consists of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas penal Code; Article 1.15, Tms Code of Criminal Procedure; and the Fifth
and Fourteenth§' Amendment of the vitiated Statos Constitution. Consequently, no
rational trier of fact could have found the essentia_\; elements of the enhance-
ment allegations true beyond a reasonable doubt.

mveasoourtingrahdm/Finaim

In addressing ground timber two and three,' the trial court erred in stating z
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement or his sentencing range to habitual offender status.
The Court remissiond‘s that grounds for relief be denied. (See: Memorandmn / Findings,

pp. 1)¢

Applicant's Traveme `To 'l_‘he‘rrial §Oou_rt's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's reeoumendation that ground two and three be denied based upon the trial
court's finding that""-"applicant's judicial confession (standing alone) provides some
evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his judicial confession standing alone§ is not enough
to support proof of~ a final conviction, where the P.S.I. report did not contain _
certified copies of prior judgment of convictions against him. See: Garc\e V;. State,
930 S.W.2d 621, 623(Tex App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex' parte §
Rich, 1§§ S.W_.Sd at 513. 'f t . o ‘. -f,"”§,»

   

The Texa_s_ Court o`f Criminal Appeals have long held that in al1 criminal presecu--
tions regardless of the plea or whether the punishment is assessed by the judge or
the jury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1 15, Texas Code of
Criminal Procedure; Stone V. State, 919 S.W.2d §24. 426(Tex. Crim. App.§,1996)'_; Messer
V. State, 729 S.W. 2d 694, 698('!‘ex.¢rim.Ap_p.1986).I.Ikewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies
§ of prior judgments of].;` convictions against the applicant. Garcia, 930 S,_W. 2d at 623. ’
In slmlmary, the State qust introduce a copy of each judgment of convict§:m, in each
case used for enhancement purpose. See: Section 12. 42(d), Texas Penal gode; Terrell
V. State, 228 S.w. 3d 343 at 946; Ex parte Rich, 194 S.W.Bd at 513. _ ‘ '»

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (Seez R.R. Vol#Z,pp.ll§, line
16-21) end (R.R. ve1#3,pp. 7, line 6 through pp.a, line 1_15).Fur1,hermore', there were
"no evidence" o_f prior convictions contained within the P.S.I. report. \'I'hus, based
upon the record, no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recomuendation of the trial court
must be overruled and applicant's case remanded back to the trial court for a new
punishment hearing. '

.`r

emma marcia-marva

v 1a ground number four and five, Appli )ant argued that Detestive Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the Un1ted
State Constitution when he failed to read the full "Miranda Warning" to him as required
by Article 38322 § 3(a)(2), 'l\exas Code of Criminal Procesdure. ' ~

7 '  In ground number f1ve, Applicant arg; ed that Detective A_ndarson violated his due
process right under the fifth and fourtemth_ amendment of the United States Constitu-;
tion when he threatenda physical harm to him and his property in order to coerce him

to give a self- incriminating statement against himself. b _ . -: §

State'sReplytToPstiti§m For Nritof names corpus

 

1n addressing ground ntuber four and five, the district attorney argued that y _` "
' relief should be denied bacauss: § . , - z 5

"_'I‘he applicant's Miranda and diis process grounds for re11sf are not cognizable
because these same complaints were rejected on direct appeal." (See; _Stats°s Reply,
p'p’s). 'l . . ; _ .

§§ `~'_ 4
. ;.

7 However, the district attorney has failed to address applicant's constitutional
questions of law and fact regarding additional evidence that is being presented for `
the first time in thi§ foregoing habeas corpus petition that was not presented on `
direct appeal. 'I_'_his evidence creates an exception to the general rule that claims
raised and rejected on direct appeal are not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852('I‘Ex Crim. App.ng2); Ex parte Goodnan, 816 S.W_._Zd

383, 385('1'e_x._ Crim, App. 1991); Ex parte Russall, 738 S.w.Zd 644, 646(Tax Crim.App. 7
1986) `

In addressing ground number four and five, the trial court erred in stating:
'"!'he Court finds that the applicant's miranda and due process grounds for relief are
not cognizable because they were litigated on direct appeal." (See; llei¢eorandtm\/Finding,*
PP- 1) , -5 ; ~*: §§

f f- # ~ -.' 11
» ,. . _ ..

Applicant's Traverse 'ro The ‘l’rial Court's Findings

Applicant now contends that the Court of Criminal hppeals should not adopt the
trial`»~_~‘. court's recommendation that ground four and five be denied based upon the trial
court's finding thatx _ ;`

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l;).

Applicant maintains that his claims presented in ground n\mbers four and five ~'
of the foregoing habeas corpus petition should not be subjected to procedural bar)
because his claims now before the court are fundamental constiti»tion_al claims that
are based upon new theories that were not presented on direct appeal. Ex parte Good~ l
:m, 816 su.za 383, aes(wex. crim. App. 1991); ex parte mesen,_ 738 s.w_._zd` §44_("mx.
Crim. App.1`986); Bc parte Schuessler, 846 S.W.Zd at 852(‘1\62< Crim. App. 1992). The law
is clear, although habeas corpus is traditionally;f unavailable to review matters which
were raised and rejected on appeal, claim involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schues;§l_ar, 846 S. W.2d at 852
(’!ex. Crim. App.1992)(granting relief due to lack of jurisdiction); Ex parte Russell¢
738 S.w.2d 644('1°ex. Crim. App 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.w.Zd 189('1'& Crim.Apvp 1982)(granting relief
do to the improper excusal of a venirenmzber)c Ex parte Clark, 597 S.W.2d 760(Tex.
Crim.App.1979)(granting relief due to the trial court's failure to apply the law to ”
the facts of the case). \

l ` Here, in applicant's case now before the Teums Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional '
right under Miranda v. Arizona, and his statutory`rights under Article 38. 22 of the
'l'eoas Code of Criminal Procedure. (See: Opinion of the Eight District court of Appeals,
lpp.¢l). However, a review of- applicant°s habeas corpus claim nov before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the _United
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38. 22 § 3(a)(2), Te)¢as Code of Criminal Procedure. (See: Memrandum
of law, pp. 14).

 

§',

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number ~;,?one on direct appeal it beccmes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding _,
that --"applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause remanded back to
the trial court for a new trial. ' 411

Likewise,a 4 review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not mowingly, intelligently, and
voluntarily made§ (See: O_pinion of the Eight Court of Appeals, pp.5). However, a review
" `of applicant's fifth ground for review on his habeas corpus petition shows§, that he
alleged that "Detective Anderson violated his due process right under the Fifth and£
Fourteenth Amendment of the United States Constitution when he threatened physical `
abuse to applicant and his property in order to coerce him to give a self»incriminating

statement against hinself. (See: Applicant's Memorandum of law, pp.17)..

§'

 

`:» "'
1

In` eummary, after comparing applicant's ground number five in his habeas corpus:
petition to applicant's claim number two on his direct appeal, it because clear that
the claims are not the same because applicant is now presenting a constitutional issue
`of‘.; fundamental error based upon a theory not alleged on direct appeal. Conseguently, .
' the trial court's finding that -~"applicant's Miranda and due process grounds for re-
d `lief are not cognizable because they were litigated on direct appeal"--umst be over- 'i

ruled and the case remanded back to the trial court for a new trial. ` "

cumusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-
cant So Moves' The Court. `

Respectfully' Submitted:

H§§§§eya€§§§€n No. 1826716

"4 l ~ ' ' 2661 F. M. 2054 ' 4
'I'ennessee Colony, Texas 75884

10

 

District Attorney, 401 W. Bel!cnap, Fort Worth, Texas 76196-0201. Executed on this 25th
day of February, 2015, v 4 v - _ ,»p _ - . .

   

  

retmew‘ cowen No.` ilazsvis
'.3» .::1:',§' z 4 ‘ Applicant, Pro-se”`»- "h 1

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524 ,¢

11

 

,.;writ No. c-432-C`01.6‘375~`-£1-?2271`1_'1:A .
n Parte m me 432nd dndicia 4

District¢°\ltt t

 

 

 

emma For name _ , ..._ , ,\_,
on January 4, 2015, Applicant, filed this foregoing writ of habeas corpus f '
alleging five constitutional mcblations during the course of his trial court premeding. 1

`*..

 

-\

In grmmd nuber mci Applicant, contends that his sentence of twenty years in Cause
No. 12271111) , is 1311ega1 because the "Judgment of conviction ay court" and the
"Record At Trial" shows that the trial court found only one enhancanent` paragraph
true; thereby making his punishment mssive.

In gro\nxd lumbar .twc, applicant contends that his sentence of thirty years in Cause
No. '122`7111D , is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal code, thereby denying him due process under the Stat@and Federal Con-
stitution.

In grand maher three, Applicant, contends that he‘ was denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d), Tsxas Penal Code; thereby making his
thirty year sentence void.

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amenchnent,`;` when he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure.

In ground amer five, Applicant, contends that Detective Anderson violated his `
"Due Process nights under the auth and Fourteenth mcmann when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement against himelf.

.._‘i u.‘;’__'

 

-' Arg\ment And Authoritieo

Gramd matter one
In ground nimmer one, Applicant argued that his jrsentence of twenty years in
Cause No. 122711.,1D is illegal because the""Judgth of conviction By Court" and

the "Record At Trial" shows that the trial court found only one enhancement para~»
graph true, thereby making his plmishment excessive.

state's`neply iv hamm For writ or names comm

In addressing ground onumber one, the district attorney argued that relief should
be denied simply because -~"the indictment alleged two prior felony c<mvictionsa a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 4
,. burglary of a habitation. The trial court found these prior convictions to be true.
v Thus, the applicant qualifies as a habitual felony offender. The applicant's twenty
t t year sentence is within the statutory range for a habitual felony offender. he such,
his sentence is not e)cceseivo." (See: State's Reply To Petition For Writ Oi' qabeas
Corpu`s¢ pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the record affirmatively
reflects that his sentence is illegal because the "Jddgment of Convictim By Court" and
the "Reporters Record .' at trial", both affirmatively reflects that- the trial court only

found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegationl. (See: Judgment Of Co!wiction By Court, Appendix No. 1-5, and

R.R. Vol#Z. pp. 109 through pp. 114).

 

Applicant maintains that because the "Judgment of Conviction and the Reporter' ’e b
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and §he trial court found only one enhancement paragraph to be true (See:
R.R. Vol#ZiPp-IOS through pp.114) there is no evidence contained within the record
to support the trial 'cour_t's habitual offender finding. Therefore, the habeas court' s
findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1).

,u`. *
rif

memme

0n February 2, 2015, the habeas court issues it's "huiorandum / Findings" adopting
the district attorney s interpertation of the events on all five constitutional claims
without addresssng applicant's questions of law and facts '”

¢,-: '

In addressing ground number one, the trial court simply stated without any
decuesion-"'I_he Court finds that the applicant's thirty year sentence is 'not e)dcessive.
' The court recaxmends that this ground for relief be denied." (See: Memrand\m / Findixige,

ppol ) o ' ` . ii `::; l l l \;

Appiiéant's Trayerse 1b wherein o¢mzt!s rulings

Appiicant now contends that the Court of Criminal Appeals shoxiid not adopt the
trial court's recommendation to ground number one based upon the fact that the trial
court's findings is contradicted by the record of evideme at trial which `ehowe
that the trial court only found one enhancement paragraph to be true. (See. Judg-
ment of Conviction "By» Court and§.:(`R,R. Vol#Z,pp.lOQ through pp.114);

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a review/of the punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's @ntence of twenty years void. Moreover, the record showe that
the district attorney only asked the trial court to take judical notice of the _
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
`pp.8, line 1-15) Nevertheless, without any evidence beingpresented a_t trial to
support the enhancement a11egation, the trial court illegally concluded:

`:',!,‘Based upon the foregoing evidence and the information that's been provided 'to

3

the court and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the
State of 'l’ex`as versus Matthew C. Cotten.'lhe respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the court hereby
sentences you to 30 years in the Institutional Division of the 'I'e);aa Department of
Criminal».j`ustice. I-n Cause No. 12271_11. theCourt hereby sentences you to 20 years
in the l_nstitutional Division of the 'I‘exas Department of Criminal Justice."_' (R.R.
Vol#f§,pp.&€,line 18 through pp.d?,linel-?).

Section 12. 42(d), 'I*axas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S.W.Bd 508,
511('Iax Crim. App.2_006). m explaining how Section 12.42(d) operates the Gourt of
Criminal Appeals have consistently held that the State must present evidence which
supports the enhancevent allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations the punish-_-
nent can not ha legally enhanced. Cole v. State, 611 S.w.Zd 79, BO(Tex._ C__rim.~ App. w
1981); Mizell V. State, 119 S. N.B¢i at 806('I‘ek. App. 2006); Jordan V. State, 256
s.w.3a 2_90. 293('1~@:< crim. App. 2000). » _ x "

Here, in applicant's case now before the Court of Criminal hppeals the record
shows that at the j"j'"`:`__ ,' hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain€;_'_, any evidence
of any prior felony convictions. (R.R. 111 Vol#d¢vr~‘.?, line 6 through pp.a, line 1-15)..
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhanth allegations true beyond a reasonable dmibt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside
and remanded back tothe trial court for a new punishment hearing.

 

In ground number two, applicant argued that his sentence of twenty years is
void because the State presented "no evidence to support the enhancement allegations t
required by minn 12. 42(d), 'I'exas Fonal Code, thereby denying him due process
under the State and Fedaral Ctmstitution. ' ' ' ,

In ground number three, Applicant argues that he was denied due;." process and
due course of law when the State presented “no evidence“ to support the enhancement
allegations as required by Section 12 42 (d)`, Tevcas Penal Code; thereby making his
twenty:` year sentence void.

State's RBPIY Tb petition For Writ O_f ms corpus

In addressing grounds two and three, the district attorney argued that relief
should be denied§ because: ' . . . .

"The record herein is not totally devoid of evidentiary support for enhancing
the applicant'@ §€ntel’¢¢ing ranQ@-” (See: State's Reply,pp.$). '_\ §§ v z

lmra specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) “'l‘he applicant entered a ,_
judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
thez~ appearance, confrontation and cross-examination of witnesses, and consented to oral
and written stipulations of_ evidence." (State's Reply, pp.5). ` ~§

However,' the district attorney failed to address applicant's constitutional
questions of lau and fact regarding applicant's claim that the State presented "no
evidence" to support the essential elements oi.’ the enhancement paragraph as required
by Section 12. 42(d), Texas ?enal Code,- Article l 15, Texas Code of Criminal Procedure;
and due process amsler the Fifth and Fourteenth Avendment of the United States Consti-
tution. (Stata' s Reply, pp.S-S)

Applicant maintains that proof of prior felony convictions requires more than (1) §
applicant's judicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts h"ave long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the judge or "the§ jury, lin no scant shall a person charged with a criminally offense
be convicted upon his plea without sufficient evidence to support the same. Arti¢`:`ie
1.15, rees code or criminal Procedure; stone v. state 919 s.w.za 424, 426 wet
crim. App. 1995).‘, appear v." state, 720 s.w.zd 694,698('re:.cr1m.vpp.1ges); stokes v.
Procunier, 744 F.2d at 483; »'l'hcvnpson V. louisville, 362 U.S. 199, 8{18.£!'1'..1 624(1978).

Furthenmre, §_roof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
did not contain certifved copies of prior judgment of convictions against the appli-
cant. Garcia V. Sta;te, 930 _S..w.2d 621, 623(Tex. Crim. App.1996). Likewise, in:: order for
a stipulation :to be considered as evidence where the plea is before the court, the state
must introduce a copy of the judgment and sentence in each case for enhanth purpose.
See: Messer, 729_ S.W.2d at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at

368, sx parte Rich, 19‘4_ s. w`:";zd at 513. ;;l;j. t ,_

 

 

§

+1 ";§> §§ ' ` '(
Here, in applicant's case now before the Court of Criminal Appeals the record

v shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial area ` _ .;_

 

51 ' ' -1§ -~1

*The applicant entered a judicial confession admitting to ali of the allegations
in the indictment, including the enhancenent and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross- v

_ examination of witnesses, and consented to oral and written stipulations of
evidence. (See; State's Reply, pp.5). ' `

In conclusion, the record clearly shows that the State denied applicant due
process an‘d due cou§se of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12. 42(d),
Te)as Penal Code; Article 1 15, T_exas Code of Criminal Procedure; and the Fifth
and Fourteenth§ Amendment of the I!nited States Constitution. Consequently, no
rational trier of fact could have found the essentis\ elements of the enhance-'
ment allegations true beyond a reasonable doubt.

Ihbeas court Memoranduin / Findings-
In addressing ground lumber two and three, the trial court erred in stating z
"The Court finds that the applicant's judicial confession provides some evidence

supporting the enhancenent of his sentencing range to habitual offender status. .
The Court recommends that grounds for relief be denied. (See: lmrandum / Findings,

Pp» 1)

Applicant's Traverse ~'Bo The `Trial lCourt's Findings

Applicant no_w crmtends that the Court of Criminal Appeale should not adopt the l
trial court's remandation that ground two and three be denied based upon the trial
court's finding that--"applicant's judicial confession (standing alone) provides some
evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his judicial confession standing alon§ '<'is not enough
to support proof o"f a final conviction, where the P.S.I. report did not contain `
certified copies of prior judgment of convictions against him. See: Garci_a \)_T. State,
930 S.w.2_d 621, 623('1_'ex App. 1996); Ex parte Brown, 757 S.W.2d at 368; Bx parte
Rich, 194 S.W.Sd at 513.

The ‘l‘exes Court of Criminal Appeals have 1ong held that in all criminal prosecu-
tions regardless o_£ the plea or whether the punishment is assessed by the judge or
the jury, in `no event shal1 a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1 15, Texas` Code of
Criminal Procedure; Stone V. State, 919 S.w.Zd 424. 426('!'ex. Crim. App. 1996); Messer
v. stato, 729 s.w.zd 694, ega('ro_x. crm.App. 1986). z.momso, onegat;ono of prior "
convictions contained within the presentence investigation report is inacmissible as _
proof of"a final conviction, where the P.s.r. report am not cmto'in certified copies
of prior judgments of ccnvi'ctione against the applicant. Garcia, 930 S W. 2d at 623. ’
ln smmnary, the State must introduce a copy of each judgmnt of cozwict`ion, in each `
case used for enhanth purpose. See: Section 12 42(d), 'l'exas Penal wde; Terrell
v. State, 228 S.w.3d 343 at 346_; Ex parte Rich, 194 S.w.3d at 513.

,Ho*i-o, in appnoano~o ¢aoo now before the mean court or criminal Appeale, the
record shows that -_the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any ovidonce of a judgment of prior conviction. (See: R.R. Vol#Z,pp. 12\4, line
`16-21) and (R.R. vol#3,pp. 7, line 6 through pp.d, line 1~15). Furthermore, there were
"no evidence" of prior convictions contained within the P.S.I. report. :Thus, based
upon the record, no rational trier of fact could have found the onhancmnt allegations
true beyond a reasonable doubt. In_ conclusion, the'reconmendation of the trial court
must be overruled and applicant's case renended back to the trial court for a nev
punishment hearing.

w -_'

GrmmdmmberFourAndFivo‘

In.,-groundf.nnmher four and five, Applicant argued that Detective Andereon violated
' his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United '
State Constitution when he failed to read the full "Miranda 1Warning" to him as required
by Articlo 38.~.~22 § 3(a)(2), -'l*exas Code of Criminal Proceedure. ~ 1 q '

n - In ground number five, Applicant argued that Detective Andarson violated bia due
process right under the fifth and fourteenth amendment of the tmited States donetitu-_
tion when he threatend physical harm to him and his property in order to coerce him
to give a self~» incriminating statmnt against himself.

State's Mply To Fetit§m For Writ of whose corpus

In addressing ground number four and five, the district attorney argued that
relief should be denied becausos ' ~ ~

"The applicant's Miranda and due process grounds for relief are not cognizable
because those same complaints were rejected 'on direct appeal." (See; State's Reply,
pp,e). _:- " n 1 _4 t l \, / v

However, the district attorney has failed to address applicant's constitutional n
questions of la\~);,,_"an:d; fact regarding additional evidence that is being presented;§j~z for
the first time in lthié.fore§_cc¢)ing habeas corpus.petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and rejected on direct appeal )i-ar'e not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.Zd at 852('1’1?._::.‘Crim. App.1992); E:c parte Goodman, 816 S.W.2d
383, 385('1'€'3¢ Crim, App 1991); EX parte Russell, 738 S.W.ZG 644, 646(‘!'&2! Crim.App. '
1986). ' " -

In addressing ‘_ground number four and .,five,_ the trial court erred in.statina¢
"The Court finds that the applicant's miranda and due process grounds for relief are

not.:': cognizable because they wore litigated on direct appeal." (See: Meznorandlmn/Finding,
pp- 1)

Applicant's defense To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
~ tria1 court's recomnendation that ground four and five be denied based upon the trial
court's finding that: . , ,

- "applicant's 14iranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal." (See: vienxirandinn / Finding, pp.l) §
Applicant maintains that his claims presented in ground nminers four an'd five

of the foregoing habeas corpus petition should not be subjected t6 procedura1 bar,
because his claims now before the court are fundamental constitutional claims that
are based upon new theories that were not presented on direct appeal. Ex parte G6od- 7
man, 816 S.w.Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S. W.2d 644(Tex.`
Crim. App.1986), Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992) The law
is clear, although habeas corpus is traditionallyz-.}»'-_ unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schuss§ier, 846 S.W.2d at 852
(Tex. Crim. App. 1992)(granting relief due to lack of jurisdiction); Ex parte Russell,
738 S.W.2d 644(Tex Crim. App. 1986)(granting relief d'ue to improper admission of void
prior conviction); Eic parte Bravo, 702 S. W. 2d 189('1'ex Crim.App.1982)(granting relief
do to the improper excusal of a venirenHmb'er)e Ex parte Clark, 597 S.W.2d 760(Tex. `
Crim.App£1979)(granting relief due to the trial court's failure to apply the law to .
the facts of the case). '

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows tlmt on direct appeal Cotten argued that the trial ;,fcourt erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38. 22 of the
Texas Code of Criminal P¢l",ocedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that -"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution wh`en' he failed to read the "full miranda warning" to him as "
required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memrandum
of law, pp.14).

After cmpar._ing applicant's ground nmuber four in his habeas corpus petition to
applicant's claim nmlber §ione on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consewently, the trial court's finding-
that --"applicant’e Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause rspended back to
the trial court for a new trial.

Likewise,`a § review of applicant's second claim on direct zale '~'shows that he
argued that his waivet of his statutory rights was not knowingly, intelligently, and "
voluntarily made. (See: opinion of the Eight Court of Appealoi pp.5). However, a review
of applicant's fifth §round for review on his habeas corpus petition shows that he
alleged that --”Detective Anderson violated his due process right `under the Fifth and
Fourteenth masat of the mined states constitution wue» ns threatsusd physical `
abuse to applicant and his property in order to coerce him to give a self-incrini '_nat_ing
statement against himself. (Seea Applicant’s Memorandum of law, pp.l?). '; ‘
In smmary, after comparing applicant's ground number five in his habeas corpus
: petition to applicant's claim number two on his direct appeal,' it because clear that `
the claims are not the same because applicant is now presenting a constitutional issue _
of`.`j ifundamental error based upon a theory not alleged on direct Jappeal'. Consequently}

_` the trial court's finding that --"applieant's Miranda and due process grounds for re-
" lief are not cognizable because they were litigated on direct appeal"-must be over-
' ruled and the case rmanded back to the trial court for a new trial. ' '

Comlusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court met be overruled and applicant granted a new p\mish'mnt hearing based
upon grounds one, two and three. or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-

.cautsonovss 'rhs court. ' -

Respectfully Submitted:

U‘é’éi§b°&§¥€“ "°~ 1?26716

2661 :FoMo: 2054 _
Tennessee Colony, Tsucas 75884
10

 

ncenicieate of service

`I£‘mtthéw Cotté.h, Applicant, Pro sé, do hereby‘certify that ali true iand correct 1 w
- copy of"this foregoing instrument has been servea upon Steven W." Conderj, As_sietont
District A*~P"'"’m°¥' 491 W» B@lknap, Fort _worth, mae 76195-0201. mecuce’a m this 25t'h" " ‘
day of February, 201§.__ ' ' ` ' ' "

Signs ___ l ~,

Mattth Cotten NO. 4 1826716' _,
Applicant, Pro se‘»..`_.-,`¥_F§

11

 

