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July 19 , 2015

Court Of' Crimi nal Ag)eals

libel Acosta, clerk E@EEVED EN

P.O. Box 12308, C'zapital Station @@UHT®FC@MHNY¥LAPPEALS

Austin, irean 78711 JuL @Q‘ @@‘q§

RE: E!x Parte Arturo Solorzano Medrano, Applicant A%@VA@@§Y@,CB@F§€
wR-Sz ,696-01 `

Dear Clerk ,

Enclosed you will find "Applicant'S Traverse To The State'S E‘indings Of
E‘act And Conc]usions 'Of Law On Reman<l" . Please file-Stamp Said instrument and
bring it to the attention of the Court in your usual fashion. Thank you for

your time and ooopera tion.

Respectfully Submi t ted :

.M@o-W

Arturo Medrano No. 1894196

 

Coffield Unit
2661 E‘.M. 2054

Termessee Oolo'hy, Texas 75884

 

Writ NO~ WlO-34786-S(A)

CCA NO- WR-82¢696-0]L

Ex Parte In 'I‘he 282nd Judicial

Disttr:ict Courtt 0f

¢0'¢0"|0'%

Arturo Medram I|Jallas Ormlmity. Tams

Applicant's Traverse To State'“s Findings Of Fact And Cknc`|lusion Of law

To The Honorable Court Of Criminal Appeals:

Now Comes, Arturo Medrano, Applicant/ Pro se, and files this "Applicant 's
-Traverse ’_[o State 's E‘indings Of Eact And Oonclusion Of Law" requesting this
Court to grant this foregoing S'tate post conviction writ of habeas corpus.` Ard,

in'support thereof will show this Court the following:

Staateoent Of The (hse

On June 3, 2014, Applicant‘ filed this foregoing writ of habeas corpus alleging
three constitutional issues for review by the Court of Criminal Appeals.' In ground
number one, Applicant contends that trial counsel provided ineffective assistance
when he failed to investigate and prepare a defense in _his behalf. In ground two,
Applicant contends that trial counsel provided ineffective assistance of counsel
when he failed to explain the nature of the charges to applicant. In ground‘three,
Appli»ca!nt contends that trial counsel provided ineffective assistance when he failed

to adequately communicate applicant's options on appeal.

State's Respmnse v

On July,. 15, 2014, the State filed a response recommerding that relief be

denied, alleging that the claims are without merit. (State 's Response,pp.§) .

Trial Counrt"s Fi\mdlings Of Fact And Omclunsiums Of l[.av

On August 25, 2014, the trial court filed it»'s findings of fact and conclu-
sions' of law recommendeing that the writ be denied. In making it's. findings the
trial court found that: (_l) the statements made by trial counsel was true,
correct, and dispositive of the allegations inade'by applicant; (2) Applicant was
not coerced to go to trial,~ because he insisted~on his innnocence; (3) Applicant
wanted a' trial and rejected the State's plea bargain offer, and (4) counsel is
fluent in spanish and was able to communicate with Applicant tl‘lroughoit the pro-
oeedings. (E‘indings of fact/pp.2).

’Z' '

Conc lmion Of law

The trial court thereafter concluded that: (1) Applicant has failed to
prove that he received ineffective assistance of counsel; (2) Applicant has not
been denied any of the-rights guaranteed to him by ~the--'United Sta:tes 'Constitution

"or"”t% -“::-“'I‘e~'xzis "Cons’"\fl"tution."“l‘he trial court then recommended that A;.Splicant's writ

-:$"'"" ' '

of habeas corpus be Denied. (Conclusion Of Law,pp.3).

Order Ot` 'I]he Court Of Criim'inal Appeals Rmnanding For Add:iti<mmal Facts

On E‘ebruary 4, 2015', this Court _(Court of Criminal Apoeals) found that: _
(1) "A;plicant has'ralleged facts that, if true, might entitle~:§him'to relief", and
thereafter remanded A}_:p licant's writ of habeas corpus back to the tria 1~.. court with

instructions that :

 

 

 

(1) "The trial court shall make findings of fact and conclusions of law as to
whether Applicant was convicted and sentenced on a plea of ','not guilty" or whether
Applicant entered into a plea at- the punishment stage after having been found

guilty by a jury7

(2) If 'Applicant did'waive expressly waive his right to appeal/ the trial court

shall supplement the habeas record with evidence of such a waiver; and

(3) The trial court shall make findings of fact and conclusions of law as to
whether the performance'of -Applicant's trial counsel was deficient and, if sol
whether counsel's'deficient performance prejudiced applicant." (Order of the

Court of Criminal Appeals on Remand, WR-82 ,696-01 ,pp.2)

Findings Of Fact And“Conslusions Of Law On Renmand|

On July 7, 2015} the trial court filed it 's "Findings Of Fact and Conclu-
sion Of Law On Remand" finding that:
(ll Applicant pleaded not guilty and was found guilty by a jury in this case. (R.R.

Vol#l,pp .3);

(2) After the jury found Agplicant guilty, he entered into a plea bargain agree-

rment. (R.R. Vol#'l,pp.¢l-§);

(3) The trial court admonished Applicant that his appellate rights would be

waived and applicant'consented thereto on the record. (R.R. Vol#l,pp.4-5);

(4) Trial counsel refutes all of Applicant's allegations in his affidavits

(orig inal ard supplemental ) §§

(5) The Court finds Vasilas affidavits are sufficient to respond to the allega'-

tion . (E‘indings of fact,pp .2) .

 

Cmc]usiion Of ][.av

']he trial court thereafter concluded{that:

(1) Applicant waived his right to appeal this case as part of his plea bargain

agreement after being admonished by the court;

(2) Applicant has failed 'to prove that he received ineffective assistance of
counsel. applicant did not prove that c'ounsel's representation fell below an
objective standard of reasmableness. Nor did he prove that tPere is a reasonable
probability that, but for'counsel's unprofessional errors, the result of the

proceeding would have been different. (Conclusion Of Law On Remandlpp.2~3)

Applicant's G)jection To The Findin® Of Fact Amd Comluksion Of Law On Renandl

Applicant now files his objections to the trial court's findings of fact and
conclusions of law on remand contending that the trial court's conclusion recom-
mending that his habeas corpus petition be denied, must be' overruled for three
reasons. first, the trial court's findings and conclusions of' law stating that~
-"Applicant waived his right to appeal this case as part .of his plea bargain
agreement after being admonished by the Court is contradicted by this Ccurt's '-
holding in Ex' Parte Delaney, 207 S.W .3d 794('I'ex.Crim.A}_:1p . 20)6); Ex Parte Axel/

g 757 S.W.Zd 369('I'ex Cri_m.App.1988)'; Strickland V. Washington, 466 U.S. 663, 104

S.CT. 2052(1984); EvittS.V. Lucey, 469 U.S. 387, 105 S.C'I'. 830(1985).

In Ex Parte Del-aney, the Court of Criminal Appeals held that when the record
reflects that there is no waiver in the record certifying that an appellant
expressly waived his right to agpeal,. that waiver is ineffective . See Ex:~Parte
Delaney, 207 S.W.3d 794,796(Tex. Crim.App. 2006); Ex Parte Thomas, 545 S.W.Zd 469

(-Tex Crim.App. 1977); Ex Parte".[bwnsend-, 538 S.W.Zd 419(Tex. Crim.App. 1976) .

 

Here in Apolicant's case now before the Court of Crimhial Appeals, the
record reflectw that appellant plead not guilty and was tried by jury. (R.R.Vol#l,.
pp. 3). After the jury found Agplicant guilty, he entered into a plea bargain agreement'
for a 25 year sentence. (R.R. Vol#l,pp.4~5). However, there is no document in
the record before the Court reflecting that applicant expressly.waived his con-
stitutional right to appeal. (R.R.Vol#l, pp. 3?6). Furthermore, the record also
shows that the trial judge abused his discretion when he ordered that Applicant

ha serve 25 years without the possibility of parole. (R.R. Vol#l,pp.6, line 2-5)

According to Texas Penal Code § 21.02(h)-Continuous Sexual Abuse of Young
Child or Childern- "An offense under this section is a felony of the first
degree, punishable by imprisonment in the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years or less than 25 years. See:
Texas Penal dee § 21.02(h). This further supports Agplicant‘s claim that his
trial counsel's perfonnance was deficient/ because he allowed and incouragei
the trial court to impose an illegal sentence. Conseguently, Agplicant"s sentence
of 25 years without the possibility of parole must be reversed and remanded for

a new punishment hearing, in t}e interest of justioe.

Second, the record shows that this Court (Court of Crimdial Appeals) Ordered
the trial court to supplement the record to show -"If Applicant did expressly
waive his right to apoeal, the trial court shall supplement the habeas record
with evidence of such a waiver. (Order , Bb.WR~82,696-Ol,pp.2). However, the
record still reflects that there is no document in the record before the Court
showing that applicant expressly'wwaived his right to appeal. The record before
the-Court shows that the trial court totally disregarded this Court's Order to
"supplement the habeas record with evidence of such a waiver. Consguently, the

trial court's finding that Applicant waived his right to appeal is ineffective.

Ex Parte Delaney, 207 S.W.Bd 794/ 796(Tex. Crim.App. 2006).

5 , 1

 

C[hird, the- trial court's findings and conclusions that -- "Dpplicant has
failed to prove that he received ineffective assistance of counsel because he
failed to prove that couns'el'.'s representation fell below an objective standard
of reasonableness, nor did he prove that there is a reasonable probability that
but for counsel's unprofessional error, t_he result of the proceeding would
have been different" -" is also contradicted by the record of evidence. ( con-

clusion of Law/pp. 2-3) .

standard of Review

The standard 'of review to show that counsel provided ineffective assistance
of counsel is set out in Strickland»V. Washington, 466 U.S. 668, 104 S.Cl‘. 2052,'4
(1984)-"§ Evitts V. Lucey, 469 U.S. 387(1985); Ex Parte Axel, 757 S.W.2d 369(Tex .
Crim.App. 1988). In Evitts V. Lucey, the-Slpreme Court held that the Sixth
Amendrrent right to effective assistance of counsel extends to a first appeal |.as
of right. Likewise, lin EX Parte Axel,- 757 S.W.2d 369 at 374, this Court held
that applicant was denied effective ass/istance of counsel when coursel failed to
give applicant any practical assistance in protecting and preserving appellate
rights, thus entitling applicant to an out of time appeal. This Court further
held that counsel has a burden to ensure that appellate rights are protected and
to present a sufficient record to resolve the issue he or she preseits on appeal.
fix Parte Axel, 757 S.i/Q.Zd at 374; Amador V. State, 221 S.W.3d 666, 675('I‘ex. Crim

App. 2007); Guajardo V. State, 109 S.W.3d. 456, 462(Tex. Crim.App. 2003) .

Deficiem:y

Here,» in Applicant's case now before the Court, the record shows that.appli-
cant alleged that his trial counsel failed 'to adequately communicate his options
on appeal which resulted in his direct appeal being dismissed. (Appeal No.05-14-

00129-CR)

 

Applicant specifically argued that trial counsel misinformed him that he
could not appeal the guilt and innocence phase of his trial_inwhich he plead
not guilty and was trkad by jury, and misrepresented to him that he would be
eligible for parole within two years if he took the 25 year sentence when infact
he would have to serve his 25 year sentence day for day without any possibility
of parole, as ordered by the trial court. (R.R. Voll,pp.6) This satisfies part
'one of Strickland‘s Uwo part test, because it shows that trial counsel failed to
protect applicant”s constitutional right to appeal. Ex Parte Axel, 757 S.W.Zd at

374; Evitts/ 469 U.S. at 3897 Strickland, 466 U.S. at 688.
Harm Analysis

Applicant further contends that he was prejudiced by counsel”s unprofessional

error because counsel's error resulted in his direct appeal bedig dismissed in

- violation of his First Amendmeit Right to a§first appeal as a matter of right.
Evitts, 469 U.S. at 389. Applicant further aggues that he was also harmed by

the fact that he is now serving a 25 year sentence without the possibility of
parole when infact, this sentence is illegal according to Texas Penal Gmde §
21.02(h). This satisfies part two of Strickland's test, because applicant has
`shown that but for trial counsel's unprofessional error there is a reasonable
probability that the result of the proceeding would have been different. Strick-

Land, 466 U.S. at 695; Evittsv 469 U.S. at 389; Ex Parte Axel, 757 S;W.Zd at 374.

* Prayer

Applicant respectfully prays that the Court of Criminal Appeals conduct a
hearing de novo review, and thereafter grant applicant an out of time appeal in
die interest of justice, so that he may properly assert his constitutional right

to a first appeal as a matter of right.

REspectfully Submitted:

7

 

 

Arturo Medrano No. 1894196
Coffield Unit
2661 F.M. 2054

Tennessee Colony, 'Iexas 75884

Applicant , Pro se

Certificate Of Service

I, Arturo Medrano, Applicant, Pro se, do hereby certify_that a true and
correct copy of this foregoing instrument has been served upon Shara D. Saget,
Assistant District Attorney," Frank Crowley Courts Bldg., 133 N. Riverfront Blvd. ,

LB-19', Dallas, Texas 75207-4399. Executed on this 19th day of'~»“'July, 2015.

__/

Sign: W Wd?'o”l»&'~/

Arturo_Medrano No. 1894196

Applicant , Pro se

