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CMJRT OF CH|MINAL AEEEALB

 

MAR 19 2015

 

 

 

 

 

 

 

cAUsE'NO. c-371-010304-1254009-A

1

EX PARTE IVERAZ IN THE TEXAS COUR'Ii
OF
CRIMINAL APPEALS

\
1

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OSMIN AGRUELLES

APPLICANT'S OBJECTION TO TRIAL COURT'S MEMORANDUM:
FINDINGS OF FACT AND CONCLUSION OF LAW

The State proposed it's own Memorandum, Findings of Fact and conclusions
of law regarding the grounds raised by Applicant. Applicant objects to the
courts adoption and shows the following. The state's memorandum findings of
fact and conclusions of law are not proven as fact or shown by the trial record
as correct. Applicant shows the following based on the trial record, memory and

affidavit as demonstrated on his application for writ of habeas corpus.

Memorandum

The applicant was convicted by a jury of the offense of continous sexual
abuse of a child, and was sentenced to confinement for life. See Judgment.

~ This was applicantfs first felony.

- Appellate attorney could have properly raised these issues of inter-
preter for relief, but did not. '
The court of appeals for the Eighth Court of Appeals District of Texas affirmed
the applicant's conviction on a worthless venue ground. see Meraz v. State,4l5
S.W.3d 502,507(Tex.App.--San Antinio 2013 pet.refused).

The applicant shows that (l) he was improperly denied an interpreters and
(2) He received ineffective assistance of trial counsel. This court should con-
sider the following objections to the court's findings of fact and conclusions

of law, and recommend that applicant be granted his requested relief.

THE PROPER FINDINGS OF FACT ARE:

 

l. The applicant was misrepresented in this prosecution by the Hon.Mark
S. Rostreet. see Writ grounds 2~12.-

2. Rostreet claims to speak spanish but does not claim to interpret the
proceedings during the voir dire exam of the veniremen or during the initial

trial. see Affidavit of Hon.Rostreet/`p.l.

3. The State Bar of Texas Directory confirms that Rostreet provides
Spanish Language assistance but according to the trial record Rostreet does
not provide such assistance. see Trial trancripts.

4. Rostreet does not request the service of interpreter for his client
like he claims in his affidavit. see Rostreet's affidavit p.l-2. Instead it is
appointed "Sua Spgnte" by the court. see T.T. Vol.2,p.ll.

5. Rostreet did not request the service of an interpreter when it was
needed/contrary to Rostreet affidavit- see Rostreet's affidavit,p.Z. And the
need for one appointed by the court. see T;T. Vol.2 at ll.

6. There is the Trial Record to suggest that Rostreet was incapable of
proceeding with the voir dire exam. of the veniremen and to translate to his
client at the same time. see Voir dire exam. vol.2. Applicant did not under-
stand the legal process. see Trial Record.

7. Applicant filed his writ application with complete help from a biling-
ual inmate in obtaining trial transcripts, legal research, rebuttals,-and affi-
davits. No authority precludes applicant from obtaining legal help from another
offender with english skills. see Offender's affidavit. _

8.Applicant's verification indicates he was assisted in preparing his
application and memorandum. see Offender verification. The court's "Sua Sponte"
appointment of interpreter is the genuine authority that applicant does not
understand English. SEE vol.2 at ll.

9. The applicant plainly states: I DON'T UNDERSTAND.... see vol.4 at 14
of T.T. and vol.2 at ll.

lO. Applicant has established that the appointment of an interpreter was

required to assist him in his defense.,

CONCLUSIONS OF LAW

l. The appointment of an interpreter is required when the trial court
becomes aware that the defendant does not understand english. Rivera v. State,
981 S.W.2d 336,338(Tex.App.--Houston[l4th Dist.] l998,no pet.). Like in the
applicant's case the court "Sua Sponte" noticed him to be in need of interpre-
ter. see vol.2 at ll. see also T.C.C.P. Art.38.20(9).and Garcia v. State,l49
S.W.3d l45(Tex,Crim.App.2004).

2. The writ recoed does establish that the applicant was unable to under-
stand the english language and that Rostreet was unable to assist the applicant.
see Trial transcript..

3. Applicant was improperly denied the services of an interpreter, during
voir dire of the veniremen and select proceedings during trial. see Trial
record volumes. v

4. The Honorable Court should consider in the interest of Justice that

Applicant' s first ground for relief be granted.

iNEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

 

Applicant shows how his trial counsel did not provide him effective
assistance of counsel contrary to the court's conclusions. Applicant's writ
fully details every issue and shows the required elements of ineffectiveness

by Rostreet's representation. see writ and memorandum;
FINDINGS oF FACT

l. Applicant objects to every findings of fact by the court as proposed
by the State.`All are unsupported by the trial record. Applicant has also filed
objections to the trial counsel's affidavit made by Rostreet as untrue and un-
reliable. Applicant.denies the findings and conclusions entered.

2. Applicant fully details his memory of the trial and relies on the
trial transcript as required proof of the ineffectiveness by Rostreet. see
trial record grounds l thru 12.

3. Rostreet would not answer or submit his actions or omissions of his
ineffectiveness in trial, provided by return certified mail. see record of
letter's sent to Rostreet.

4. Rostreet was ordered to answer to contempt or provide an affidavit/
as a result a hostile affidavit was developed. see Rostreet affidavit. _

5. Applicant further incorporates his writ grounds and memorandum to
demostrate Rostreet's ineffectiveness in trial. see Applicant's writ and

memorandum.

 

6. Applicant further objects to proposed evidence from the record of the
likelihood of a different outcome had Rostreet properly represented applicant
or had applicant been represented by another counsel.

Objections to page lO, A THROUGH L of counsel's affidavit. Rostreet didn't
investigate, file suppression motions, plan strategy, prepare for trial, conduct
a proper voir dire of the veniremen, challenge unqualified jurors, object to
`prosecutor's commitment questions during voir dire, invoke protection set forth
in Batson, properly object to extranous offenses introduced in innocent / guilt
stage, failure to raise provisions of section 38.072 and hearsay objections,or
file a new-trial for applicant. 7

7. Given this list of errors and omissions, there is reasonable proability
that the jury would have reached a different verdict or sentence with counsel

other than Rostreet.
CONCLUSIONS OF'LAW

l. An applicant challenging the effectiveness of his trial counsel must
establish that his counsel committed errors so serious that he was not func-
tioning as counsel guaranteed by the Sixth Amendment, and that but for their
alleged errors, the outcome of the proceedings would have been different.
Strickland v. Washington,466 U.S.668,687,694, 104 S.Ct.2052,2064,2068, 80 L.
Ed.2d 674(1984).

2. The Texas Court of Criminal Appeals has acknowledged that providing

 

an interpreter to an accused who does not understand english is required by
the confrontation clause, Sixth Amendment and by Art. l § lO of the Texas
Constitution also see Baltierra v. State,586 S.W.2d 553,556-59(Tex.Crim.App.
1979). `

3. The principal of the duty to investigate is so fundamental that failure
to conduct may itself amount to ineffective assistance of counsel. see EX PARTE
§QQ§§,395 S.W.3d 152,156-57(Tex.Crim.App.2013).

4. Defense counsel has the duty to attempt through all legal means to have
evidence detrimental to his client suppressed, to file discovery and necessary
motions to prepare. The fear of having a motion to suppress overruled does not
justify counsel's failure to file one. see Mitchell v. State,762 S.W.Zd 916,920
(Tex.App.--San Antonio 1988,pet. ref'd).

5. The duty to investigate is not eliminated by the client's own conclu-
sions or admissions... because the client's belief's may not coincide with the

necessary elements of proof to establish guilt in law.
4

 

see Thompson v. State,9 S.W.3d 808(Tex.Crim.App.l999); Sonnier v. Quarterman,
476 F.3d 349(5th cir.2007).

6. The client may not be aware of the significance of`facts regarding

 

intent, mitigation, suppression of evidence, or impeachment of witnesses that
pnly an independent investigation can uncover. see EX PARTE Felton,815 S.W.Zd
733(Tex.Crim.App.l99l); Frangias v. State,392 S.W.3d 642/643(Tex§Crim.App.
2013). _

7» Failure to dismiss bias jurors is STRUCTURAL ERROR requiring reversal.
Solis v, Cockrell,342 F.3d 392,400(5th Cir.2003), also presence of a bias
decision maker is structural error and subject to auto matic reversal. see,
Johnson v. State,l69 S.W.3d 223(Tex.Crim.App.2005); EX PARTE Welborn,785 S.W.'
26 391(Tex§crim.App.1990)._

8; lt is fundamental that in all criminal prosecutions, an accused is
entitled to an impartial jury composed of people who are unpre judiced, dis-
interested, equitable and just who have not prejudged the merits of the case.
U.S. CONST. Amend. Six, Texas Const. Art. l § 10 and T.C.C.P. Art. l.l4,l.15,
35.16(c).

9. Rostreet gavehis reasons for allowing bias jurors in trial as being
sound trial strategy. There is no authority governing a bias fact finder as
proper to hear a trial. _ n

lO. Single error may be so substantial that it alone warrants finding
counsel ineffective. Cooper v. State,769 S.W.Zd 301(Tex.App.--Houston[lst dist]
1989); EX PARTE Miller,330 S.W.3d GlO(TeX.Crim.App.ZOOQ); Chavez v. Cockrell/
310 F.3d 805(5th cir.2002). `

ll. Rostreet did not fuction as counsel guaranteed by the 6 Amend.

12. Applicant recommends that the grounds one through twelve for relief
be granted.

13. Rostreet was given before applicant filed his writ to have counsel
either adopt or concede or to respond and generally deny or refute his errors
and omissions; As applicant shows in ground 2 thru 12. Applicant asserts the

same in his memorandum of law. p.2 of writ.

14. Rostreet had from March 17,2014 to September 9,2014 to answer and
did not as a result the Court ordered on November 15,2014 to answer by December
1,2014 and still failed . Rostreet was again ordered to answer or be held in
contempt providing him an extra 60 days to respond, Rostreet waited untell the
~very last day -January 28,2015- to answer. As a result a hostile affidavit was
introduced with no actual determination to the question assesment of his trial

errors and omissions that was sent VIA RETURN CERTIFIED from March 17,2014.

 

see Assessment.

15. Counsel's silence amounts to an evidentiary-adoptive-admission.
Gant v. State,153 S.W.3d 294,299(Tex. App. Beaumont 2004, pet. ref'd.). see
attached copies of questions regarding Rostreet's errors during trial
affecting the outcome. Rostreet's affidavit lacking such request makes his
affidavit noncredible for recognition to have the Court to rely upon as true
.and correct. see Tex. R. Evid. 801(e)(2)(b) known as adoptive admission, the
person understands the statements/ the statements call for a reply) and the
person remains silent, or acquiesces to the statement. The trial court fail to
acknowledge the adoptive allegations by counsel Rostreet. see Tucker v. State/
771 SiW.2d523(Tex. Crim. App.1988). As a result the applicant did not receive
the proper memorandum, findings of fact and conclusions of law and was denied

request to have relief under the proper findings and conclusions.

WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Hon. Court
consider the objections of the Court's memorandum, findings of fsct and con-
clusions of law and consider the applicant's memorandum, findings of fact

and conclusions of law, and provide relief in the interest of JUSTICE§

Respectfully submitted/

0§min A. Meraz Pro se'
Applicant T.D.C.J.#

1697 FM 980`
Huntsville,Tx. 77343

 

 

CERTIFICATE OF SERVICE

 

A true copy of the above motion to object to the Court's findings of
.fact and conclusions of law has been mailed to the District Clerk Thomas A.
Wilder, 401 W. Belknap FortWorth,Texas 76196-0201 on this the lléu§ DAY OF

March 2015.

Osmin A;`Meraz, Pro se
Applicant T.D.C.J.# 1794403

UNSWORN DECLARATION

I, Osmin A. Meraz, #1794403 D.O.B. 12/28/61, being presently incar-
cerated in the Ellis Unit T.D.C.J. declare under penalty of perjury that the
foregoing facts contained herein are true and correct. Executed on this ltdiil
BAY OF March 2015.

0¢…@~

Osmin A. Meraz, Pro se
Applicant T.D.C.J. # 1794403

