. #Ol OZ)Oz/M/
E§ZLJ'XZHI) ] £E;

February 25 , 2015

Court Of Criminal Appeals ` . RECE'VED ’N
Clerk, Abel Acost.éf."'.“» COURT OF CR|M'NAL AppEALS
P.o. Box:12308,. capital Statié§n

Austin, Texas 78711 - MAR 03 2015

RE: Ex parte Matthew' Cotten Abe'AcoSta, Cl€?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 Stj`)§.led 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:

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

Tennessee Colony, Texas 75884

CC:

Steven W. Conder

Assistant Distr'ict At_torney
401 W. Belknap

Fort Worth, Texas _76196-0201

writ Nc». c--432-\0103_71_)1222_336,-A _
Ex Parte In The 432nd Judicial

District Court

Matthew Cotten

tm¢m@¢°}“»

Tarrant County, Texas

Applicant's Traverse To The Trial Court's Findings Of Facts
And Conclusion Of Law

Tb The Honorable Court Of Criminal Appeals:

Now‘Ccmes, 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
' 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.122233§b:, 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'thirtyiyears 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 ywas 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 groénd 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 sentence 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,Habeas.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 clain1that 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#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 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 To 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#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"). Likewi$e, a reviewfgfthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentencetqf thirty years voidv 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 aiiegation, the trial court illegally concluded:

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

,.-,.
~»=v:

=x“‘¢§¢
ii

- e_/:

~. ,. ' " , »' l ` ` ' ' t c
. ..j 1 h '.., ~- \\ 1 ` '»~,.. .
_v _~ ..¢ . q . , w ; » " H .¢~.)x ,
. ,. . v . __ 4 v -» . ; . ,'~"4~ v
‘ 1

the>court and your admlsslon, the court hereby finds you guilty of all five cau§

» -"»
, -.
;f"{

»:~.“'p r,!' ¢';;
.
._ .

numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled theyd
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 l
sentences you to 30 years in the Institutional Division of the Texas Department of
Crimina1 Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years '
in the Institutional Division of the Texas Department of Crimina1 Justice." (R. R.
Vol#3,pp. 86, line 18 through pp.87, line1-7). `

.L

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
Crimina1 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, 80(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). "

Here, in applicant's case now before the Court of Crimina1 Appeals the record

.,»1',
,, ,,

shows that at the§:;_;

 

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.'; 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 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.

In ground number three, Applicant argues that he was denied dueq?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.

State's Reply Tb Petition For Writ Of Habeas Corpus

ln 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: Statevs 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
the&apbéafané§,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 Crimina1 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 Crimina1 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.2d at 698; Stone, 919 S.W.Zd at 426; Ex parte Brown, 757 S.W.Zd at
368; Ex parte Rich, 194 s.w.ad at 513. -

§§

_Here, in applicant's case nodibefore 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-
l 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 Crimina1 Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentiah elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum-/ 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).

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Crimina1 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.2d 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 Crimina1 Appeals have long held that in all criminal prosecu-
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
Crimina1 Piocedure; Stbne 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 Crimina1 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.114,'line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wzme
"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
vmust 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
by Article 38.22 § 3(a)(2), Texas Code of Crimina1 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-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:

"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.€).

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 hare 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 ?tpgnizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Crimina1 Appeals should not adopt the
trialx-court's recommendation that ground four and five be denied based upon the trial
court's finding that: n 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 new theories that were not presented on direct appeal. Ex parte Good-
man, 816 S§w§Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.Zd 644(Tex.
Crim. App.1986)} Ex parte Schuessler, 846 S.W.Zd at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally f,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.Zd at 852
(Tex: Crim. App. 1992)(granting reiief due to lack of jurisdiction)} Ex parte Russell,
738 8;W.2d 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.W.Zd 189(Tex Crim.App. 1982)(granting relief
do to the improper excusal of a Veniremamber): Ex parte Clark, 597 S.W.Zd 760(Tex.
lCrim.'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 Crimina1 Appeals, the
record shows that on direct appeal Cotten argued that the trial tcourt-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 Crimina1 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
Crimina1 Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him bi 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 Crimina1 Procedure. (See: Memorandum
of Iaw, pp.14).

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number home 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-incrhhinating

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
iofgffundamental error based upon a theory not alleged on directuappeal. Conseiuently,
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.

Siqm WM:¢£W» mo
Matthew Cotten No. 1826716

Applicant, Pro se £@§

11

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

 

EX Parte , _§- In The 432nd Judicial
§ .
§ District Court
__ 1 ____________________ -8 ___~-_,__*-,___,__,-__,____ _______________
Matthew cotten §' Tarra'nt co'unty, Téxas

' alleging 'five'¢<mstiwfi;<>;r;§; ;Y.i@.lz§;i;c>;n;$; ;q@r;i;r,l§; 1111 :=@Pir;S;e; ;<:>::h_ii§; :c;r;i;a;i ;§q@;§;p:;>¢;e;e:didg,;

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

And Conclusion Of law
1b The Honorable Court Of Crimina1 Appeals:
.Now'ches, 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 Crimina1 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

r;rr;;On:January:A;:Z015;;AppLicantLfiledlthis-foregoih§-writ-of-habea§-cofpus-----¢-~~--~-1

 

In ground nuber one, Applicant contends 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 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 v
enhancement paragraphs'alleged in the indictment, as required by Section 12.42(d),
Texas fenal 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

l 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 Crimina1 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 l

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 Reply Tb Petition For Writ Of Habeas Corpus

 

_ 1n addresslng ground number one, the distrlct attorney_ argued that relief should__

Nhe 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, 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 0f Conviction By Court, Appendix No. 1-5, and

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

l

-\'

.Applicant 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)(l)

Habeas Courtbknmnxumhmv 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
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 iTraverse¢To' The Trial Court's Findings

Appllcant now contends that the Court of Cr1m1nal Appeals should not adopt the w

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 shnné§vv"'v`_~`
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.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'ofthe 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 ailegation, the trial court illegally concluded:

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

- w~
_...¢~`_g-;`,
¢£.51`
.~
"=,~' w t
~z»

the cou§t and your admisslon, 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 1nstitutional Division of the Texas Department of
“===z==€rrmrnai-ddstree-En-Gause~N i“TQ£Hiii=;the€ourt“fh" f'"""f' 5 v
'in the Institutional Division of the Texas Department of Crimina1 Justice." (R. R.

Vol#3, pp. 86, line 18 through pp.87, line1-7).

 

 

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).1N explaining how Section 12. 42(d ) operates, the Court of
Crimina1 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); Mizeii v. state, 119 s. w.3d at_ aoe(uo_x. App. 2006), Jordan v. state, 256 -
s w.3d 290, 293(Tex crim. App. 2008). ' ‘ '

_»§¢;Yls~»~_Here};lneappllcantis case“now~beforewthe~»Court of»Crlminal“Appeals~thegrecord_‘e-~»:~
'"shows"that at the`f@'“'"”

hearing the State only_ asked the court to take 1ud1c1a1

 

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.

1 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 by4 Section 12.42_(d), Texas Penal Code; thereby~making his

thirty year sentence void.

 

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

should be denied because: § 4 5

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

the applicant's sentencing range." (See, State'g 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
4 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
_w»,.rrquestionslof;law and*fact~regarding applicant's'claim;thatlthelState:presented~"no;;li_111l
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 Crimina1 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 criminal; offense'

1 be convicted upon his plea without sufficient evidence to support the same. Article.

' 1.15, Texas Code Of Crimina1 Procedure; Stone V; State, 919 S.W.Zd 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S. WL2d 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-v

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_belcnnsideredlas,evidence;where_the.plealislbefgre,the_ courtl_the statedg
.nmst introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: 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.3d at 513.

Here, in applicant's case nov!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).l

"""" t In concluslon, the"récord clearly shows that the State denied applicant due

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 Crimina1 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 Court Memorandum`/ 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§ l)i

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Crimina1 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»enhancementjof-his sentencing-range to habitual offender7
status." Applicant maintains that his iudicial 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
v 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; Stbne 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). leewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as

proof of a final conv1ct10n, where the P. S. I. report did not containwcertified copies

 

of prior judgments _of convictions against the applicant._ Garcia, 930 S. W.2d at 623 .....

"‘"'"" Ih summary, the State must introduce a copy of each iudgment of convlction, 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 Crimina1 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.li4, 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. TThus, 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} 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
=======hy=hftfc1§=BBFQQ=Y=SWa%$Q§z=TeXas°Code*of=€riminaT“Proteedarei"f'f`”"‘“' k """""""""

 

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 f

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)

~ ~--~»~~»-pia€z¢vér~'»,»aa#e»-a'i'-S131rea'attoen'ez~ias;~§a§féd~#¢O-~~adarés'§ aaafeaa§'~`=§faas§§£ut§¢nal~-

N..….o_|uestlons_of.,_la'c~r...and fact regardlngwadditlonal evidence that is being presented-,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 _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:
"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,

w

l pp. 1\.

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Crimina1 Appeals should not adopt the
trial court' s recommendation that ground four and five be denied based upon the trial
court's finding that: ___*‘__*-____‘-_M_ ___ _

"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 SQWLZd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.Zd 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.Zd at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally 4unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussler, 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 due to improper admission of void

hlpri,or; convictlon),»Ex parte Bravo, 702;8 -W.2d 189(Tex- Crim.App. 1982)(grant1ng-re11ef 7

do to the improper excusal of a veniremamber) Ex parte Clar~r»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). '

l Here, in applicant' s case now before the Texas Court of Crimina1 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 Crimina1 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
Crimina1 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 Crimina1 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.

'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
lof 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-incrdminating

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
4 the claims are not the same because applicant is now presenting a constitutional issue
of fundamental error.based upon a theory not alleged on directmappea1'Meonse;uently;d_:::j:
"' the trial court' s finding that --"applicant's Miranda and due process grounds for fe-*“'”""

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:
'Wawuw&zz;o
Matthew Cotten No. 1826716

Coffield Unit

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

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 Attorney, 401 W._Belknap, Fort Worth, Texas 76196-0201. EXecuted on this 25th _

day of February, 2015._`

Si<m= Wm£w/ [J@i?é§`/

Matthew Cotten No. 1826716

Applicant, Pro se

 

11

writ N<». c-~432_`010373-1227020-A

Ex Parte In The 432nd Judicial

District Court

mmm¢m¢m-

Matthew Cotten Tarrant County, Texas`

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

/

And Conclusion Of law
To The Honorable Court Of Crimina1 Appeals:

Now'Cgmes, 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 Crimina1 Appeals to grant this foregoing State post conviction writ of

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

Groumds For Relief
,;;N~i;;l;s»On;Januaryr.7:2015m Applicant flled~thls-foregolno writ of habeasl corpus»s»»»~»~»w~m~»-l

` al`l`§`g 1119 "flV§"'COnS`t`l"¢l§§l§QI§§%;Y}E>..l§j>}.°.n_§._@\l§§?§ _. Ph§: 9.<§11£§§_`_`<2§-1_'1§§11¢;;1:§1! _§<§1_1§'_§1 prQ;§e§ing;_- - _ _

 

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 thel
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 grobnd 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 Crimina1 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

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

§ ._n_u_n!§§r_"_??`r_?§`[§ hhs §i_§_*zlii__§§ _§”§§91_-'§1_@§_*§£§14§<1_ _ that _r_e_l;i_ef___$_h<é\_l_l§_ _ _ __ _ _1`

_ _ . ___ _I`¥L _a_§§§§§§i_r_l§_ <irs>
§'**~~W~be~denied~simply“because~=e?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, DP.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clairn 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 b

offender allegations. (See: Judgment 0f 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#2,pp.109 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 any7
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).

. .»Appi:i"c"'ariers:':_:Tiawei.»f§é:ma: nié Ti:ial: . court"s¢.¢Finaih§s‘.-- '

- » § -~-;Appl-1saw~-_n<>W-~<=.<>nt@nds~~~that~§he»¢¢<>urt»_'<>f~~~-~\C-r»i;minal_elzpp_@als---»Sh_<~>u;ld-not-~a§@pt»t»he»~_- _-

astrialvcourt!s~recommendationwtowgroundmnumber§one~based~upon-the»fact»thatmthe…trial-~~-"w~

 

 

 

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 Convictionl By Court and (R.R. Vol#Z,pp.lOQ 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@cfthe 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

l 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 allegation, the trial court illegally concluded:

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

__.¢=-7» 11
- -"i }`¥KWM

the court and your admiss1on, the court hereby finds you guilty of all five cause"
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled thew
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

 

 

` shows that at th§'"””

trimj.nal~ ulBt‘i'Ce. in ta'lirse"NO‘.`“" 1‘22 /111, pneCouri;_ hereo_y sentences you to zu years ~
in the Institutional Division of the Texas Department of Crimina1 Justice." (R.R.
v01#3,pp.86,1ine 18 through pp. 87, linel-v).

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
Crimina1 Appeals have consistently 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); Mizeil v. stats 119 s.w.3d at 806(11=_;<. App. 2006); Jordan v. state, 256 v
s.¢w.~:z'd -290,' 2.93(~Tez<.c'frim. App. 2'008). ' ' ` '
Here, in applicant’c case nowebefore~the~ Court of Crimina1 Appeals»the record »»¥l

hearing the State only asked the court to take 1ud1c1al

 

 

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

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.

`» 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;
WS{'H“E€"~S”~RW lo retl“l_',l'On ror ¥'\|1_”1'1;_L)]':'."If[abl=l‘BS4 \.Orp'l`l§

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;_gtate-S 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
thenappearancé,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

._lquestionsfof;law;and:fact:regarding'applicant“s s»claim:that~thexState;presented;£no;_m_ _ 111

"evidence"”to"supportF"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- 2
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

/ 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); 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 1udgment of convictions against the appli- l
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
a_S+ 1' mn a+i m 'm he cmslderedae.emdenceimene_the_nlea_labe§e;e_themt.“the_state_ ___
must introduce a copy of the 1udgment 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.Zd at
368; Ex parte Rich, 194 S.W.3d at 513. 2

Here, in applicant's case nomlbefore 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-
s examination of witnesses, and consented to oral and written stipulations of

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

__1.-_.1 - _____._ _ .,._ ._ ._,_ l _

_1.§_111;§§?_1§§1_11§1_’<>!1;,_ the .;r§é§§i;§,§l?§_rlli ;ShQUS § th§ai_=`. the ._S_§a_té -f!i-;'r.l.lls§i; §§elji_<§éi;l§l §§{e. § ,`_ _ - _ 1 _ _ - - 1 _
process aid 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 Court Memorandum / 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,

`ipp. 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 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 -¢pnviction, where the P.S.I. report did not contain
certified copies of prior 1udgment of convictions against him. See: Garcia V. State,
930 s.w.zd 621, 623(Tex. 'App. 1996); Ex parte Brown, 757 s.w. 2d at 358; Ex parte
Rich, 194 s.w.3d at 513. v ' '

The Texas Court of Crimina1 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 1ury, 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.2d 694, 698(Tex. Crim .App. 1986). LIkewise, allegations of prior ~
convictions contained within the presentence investigation report is inadmissible as

_pr99f _of a final conv1ct10n, where the R. S I. report did not contain certified-copies `_;__

_of prior 1udgments of convictions against the applicant. Garcia, 930 S W..Zd at 6231.._._111

 

In summary, the State must lntroduce a copy of each 1udgment of conviction, in each
n 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
1udicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,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. IThus, based v
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 v
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, 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

 

 

 

 

W'mtnnedazz§ RHWQ),iémstbm?prrmnmmep&%&ne

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:

HThe 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.€)- 4

" " edaaa2aa'§'»'aa§i§%§;§a§@ea§sentmar ~~ ~\ -

 

Howeverthedlsmctattomeyhas

1111rlr:questionsiofllaw;andrfactlregarding:additional:evidence:that.is_being:presentéqlrfor_;;;;11;-
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.Zd at 852(TEx. Crim. App.1992); Ex parte Goodman, 816 S.W.Zd
383, 385(Tex. crim, App, 1991); 'Ex parte Russeu, 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 cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

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 that ground four and five be denied based upon 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." (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 SJMBZd 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 Schussier, 846 S. W.2d at 852
(Tex. Crim. App. 1992)(granting relief due to lack of iurisdiction); Ex parte Russell,
738 S. W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void

1,.prior conviction),rEX parte Bravo, 702; S: W.2d 189(Tex Crim.App. 1982)(grant1ng1relief

do to the improper excusal of a veniremember): 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 warning" to him as

required by Article 38¢22 § 3(a)(2 ), Texas Code of Crimina1 Procedure. (See: Memorandum
of law, pp.14). '

l 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-incrhninating

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

¢I_a Swaaarv.,tafaa,r. aaaaariaa a@)alali¢aa’f"_S qraaad~auabar five in bia habeas <=Oraaa
petition to applicant's claim number two on his direct appeal, it becomes clear that

the claims are notlthe same_ because applicant is now presenting a constltutlonal issu§

 

.»yof fundamental error.based upon a theory not alleged on direct appeal. _Consequently, __H,_W

 

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:

MMW

Matthew Cotten No. 1826716
Coffield Unit

2661 F.M. 2054
lennessee Colony, Texas 75884
10

certificate of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy_of this fbreqoinq instrument has been served upon Steven W. Conder, Assistant

__m____District Attqrn§_l_401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th
day of February, 2015.

Siqn:.JOQQ:!zzKLMA_/'[%gzzz;;_i/ v
Matthew Cotten No. 1826716

Applicant, Pro se

ll

 

‘_Writ. No. c-432_`[0_10374_1*227_021_A;-

   
 
 
 
 
   

In The 413an \`Ndidal

District oourt

'Tarran~ bwm¢y;`¢’l“l'éms ;

alleging ;;five““constitutionalf violations during the course of his trial court proceeding. '

d .';~5' _ ':. "1 |'d;:, _ _ k
w , . ,

In ground nuber one, Applicant contends that his sentence of thirty years in Cause " ,
No. 12270`2`11) , is ine@l because the "Judgnent of conviction ny court" and the '
"Record At 'I'r_ial" shows that the trial court found only one enhancmt paragraph

true; thereby making his punislment excessive.

`.:~i’k.v

<:.` t . "l

m ground amber two, Applicant contends that his sentence of thirty years in Cause
No. 12276211). , il 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 oa'i-
stitution. ‘

§

.“\'I:-\”` .~ "*4 §

In grand number three, Applicant contends that he was denied due process and _ _
due cause 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 ground nnnber 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 oriminal Procedure.

‘}'
,,_s. ,.

' -J ~_'~ »"~
_’ _z

In ground mnnher_ 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. _ , y _- ; 'jif

§§ Arg\mentAndAuthorities

 

In ground nmnber one, Applicant argued that his sentence of thirty years in
Cause No. 1222336D is illegal because the""Judgment Of Conviction By Court" and l
the "Record At Trial" shows that the trial court found only one enhancement para-
graph true, thereby making his punishment excessive. 1 _\

. 1 1' v . §§ ';=
state's Ahealy Tq' Petition aec writ Of_-nateas corpus

In addressing ground number 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 accessive." (See; State's Reply 'Do Petition For Writ Of Habeas t
oorpus, 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 "Juth of Conviction iBy oourt!'~ and
the "Reporters Record~ at trial", both affirmatively reflects that .the trial court only

found one enhancement paragraph true, thereby acquitting applith 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
Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancanent paragraph to be true (See:
R.R. vol#Z¢pp-IOS 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 t!.s.C._i §ZZSd(a)(l).

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

In addressing ground number one, the trial court simply stated without any
decuesion»-"The Court finds that the applicant's thirty year sentence is not excessive
The court reconmenda that this ground for relief be denied." (See: Mamorand\m / Findings,
pp'l)’ 7 '» .' 4 l .. ""':`~;`_

Applicant’e ‘_rraveree 1b The Triel O¢nxrt's Findings

Applicant now contends that the _mert 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 record of evidence at trial which shows
that the trial court only found one enhanth paragraph to be true (See: Judg-

. neat of conviction .By court ancij;(~R.R. voltz,pp.loa through pp.114).

A review of the "Judgment of Conviction By Gourt" 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"). l._ikegiee, a reviewofthe punishment hearing shows that the State
never presented anyia vavidenceto support the enhancement allegations thereby making
the trial court' 3 sentence o_f_ thirty years void. Moreove_r¢ the record above 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). Nevarthelese, without any evidence beingpresented at trial to
support the enhancement aiiegati_on_. the trial court illegally concluded¢

'€é`Baeed upon the foregoing evidence and the information that's been provided to

3

the court and your adm1ssion, 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 Tei`las Department of
Crimina1 Justiss. §_`n Cause No. 1227111, theCourt hereby sentences you to 20 years
in the Instltutional D1vision of the Texas Department of Crimina1 Justice.'¥ 1R.R.
Vol#3,pp.86,line 18:`3 through pp.87,_line1-7).

Section 12. `142(d), Tei'cas Pena1 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. Ei_t Parte Rish, 194 S.W. 3d 508, privy
511(‘1‘ex_.'Crim. App.2006) IN explaining how Section 12. 42(d) operates, the Court of
Crimina1 Appe_ale_ have sonsistantly held that the State must present evidence which
supports the enhancement allegations contained in the indistment. This is besau_se, 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(Teit. Crim. App., »
1981); Mizell V. State, 119 S.W.3d at 806_('1“sit~ APP- 2006); Jordan V. .State, 256
s.w.ad 290,` 293('rex crim. App. 20081. ’ " ` `5 '

"Here, in applicant's case now before the Court of Criminal Appeals the record
shows that at thef `“H ` hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not containl§ 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 fast could have found
the enhancellent allegations true beyond a reasonable doubt. In conclusion, the w
findings of the trial court should be overruled and applicant's sentence set aside
and remanded back tothe trial court for a new plmishnent hearing.

    

In ground number two, applicant argued that his sentence of thirty years is
void because the State presented "no svidssce to support the enhancement allegations
required by Section 12 42(d), Texas Penal Code, thereby denying him due process y
under the State and Eederal Constitution. . »

In lground number three, Applicant argues that he was denied due" process end
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. '»

-..
1
'.) `

state's_ Rep_iy 16 Petitim _For writ of mbess.corpus. ' ’ y . §. ~:;;

 

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__r,) k :j§:.' § § ii
J”\" ,=¥; ' -= ga § _
More specifically, the district attorney argues that there is some evidence

to support the enhancement allegations based upon (1) "The applicant entered a;y -~ "

judicial?§ confession admitting to_ all of the allegations in the indictment, including
the enhancement andk habitual allegations; and (2) "_'I'he applicant waived his right to §§
the appearnce, confrontation and cross-examination of witnesses, and consented tn§ 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), 'leces Penal Code; Article 1 15, Texas _dee _of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-
tution. (State' s Reply, pp.S-G). ) ’ " '

§ Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's judicial confession admitting to ail of the allegations in the indictment,
and (2) applicant' s waiver of his right to the appearance, confrontation and cross-
examination of witnesses." 'I'his is because the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the Judge or the jury, in no eeent shall a person charged with a crimina1§ offense
be convicted upon his plea without sufficient evidence to support the same Arti'cl~.e
1.15, Texas Code Of Crimina1 Procedure; Stone V. State, 919 S.W.Zd 424, 426 (Tex
Crim. App. 1996); Messer V. State, 729 S.W.Zd 694,698('Iex.0rim.App.1986);,Stokes V.
Procunier, 744 F.2dat'483; ‘Ihompson V. louisville 362 U.S. 199, 80 S.C‘I‘.".62:4_4(1978)..j

/

01

Edrthennore, proof of prior convictions contained within the presentence inves-
tigation report'is"~inadmiesihle as proof of a final conviction where the P.S."I. report
did not contain certified denies of prior judgment of?'..,`convictions against the appli-
cant. Garéia v. state, 930 s..w.zd 621, 623('1'@1<. crim. App.1995). 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.Zd at 698; Stone, 919 S.W.Zd at 426; m parte Brown, 751 S.w.Zd at
368; Ex parte Rich, 194 S.W__.Bd at 513. “ ~

Here, in applicant's case nw before the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supportin§ the
enhancing of §pplicant's punishment at trial area _ ’

*The applicant entered a judicial confession admitting to all of the allegations
in the indictment, including the enhancmnt 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 conclusion, the record clearly shows that the State denied applicant due
process and due connee"o£ law when the district attorney presented "no evidenced
at trial to support the enhancenent allegations as required by Section 12.42(d),
Texas mi coae; miele 1.15, mens code of criminal Procedure; and the Fifth
and Fourteenthi§[ mendmsnt of the 45United States Constitution. Consequently, no
rational trier of fact could have found the essentia\ elements of the enhance-
ment allegations true beyond a reasonable doubt. '

mbeascourtnemnrand\m/Findinga

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

ppa 1).

Applicant°s Traverse `To The Trial `Oourt's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's rscam`endation that ground two and three be denied based upon the trial
court's finding thatj'--"applicant's judicial confession (standing alone) provides some `
evidence supporting the elmancexnent of his sentencing range to habitual offender
status." Applicant maintains that his judicial confession standing alone§» is not enough
to support proof o'_f.~ a final ?conviction, where the P.S.I. report did not contain `
certified copies o_f prior judgnent of convictions against him. See: Garc\e V_. State,
930 S.W.2d 621, 623(Te_x. App. 1996); Ex parts Brown, 757 S.W.Zd at 366; Ex parte 4
Rich, 194 S.W.3d at 513. ° 4 . _ j;_

   

The' '1‘_e`xas_ Court of Crimina1 Appeals have long held that in a11 criminal presecu--
tions regardless of the plea or whether the punishment is assessed by the judge or
the jury, in ho 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 '
Crimina1 Procedure; Stone V`. State, 919 S.W.Zd 424. 426('I'elc. Crim. App. 1996)__`; Messer
V. State, 729 S.W.Z_d 694, 698('!'ex. drim.App 1986). LIkewise, allegations '_of prior `
convictions contained within the presentence investigation report is inadmissible as
proof off a final conviction, where the P.S.I. report did not contain certified copies
t of prior- judgments of convictions against the applicant. Garcia, 930 S.W. 26 at 623. ’
In slmmary, the State must introduce a copy of each judgment of conviction, in each
case used for enhancement purpose. See: Section 12. 42(6), Texas Penal 996e; Terrell
V. State, 228 S.W.36 343 at 346; Ex parte Rich, 194 S.W.Sd at 513. _

Here, in applicant's case now before the Texas Court of Crimina1 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 prs~
senting any evidence of a judgment of prior conviction. (See: R. R. Vol#Z,pp.ll‘¢i, line
16-21) and (R.R. Vo_l#$,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. C'.'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 reconmendation of the trial court
must be overruled and applicant's case remanded back to the trial court for a new
punishment hearing. " '

ri

drums Nvmrarrour Andriva

In ground :number four and five, Appli zant 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 9rimina1 Proceedure. ` ‘ ‘~
9 l In ground number five, Applicant arg: ed 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-\ncriminating statement against himself. _ » 3 . i,`-

1.:

 

state"a'€'-nepij?.'co§ Petition rec writ ar teresa norma

in addressing ground number four and five, the district attorney argued that x _'
' relief should be denied because: » . ._ _ :` §

"_The applicant's Miranda and due process grounds for relief are not cognizable '- f,
because these same complaints were rejected on direct appeal.'! (See; _State's Reply,

:=»» ‘-
` 3

However, the district attorney has failed to address applicant's constitutional
questions of law and fact rewrding additional evidence that is being presented 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 rejected on direct appeal are not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.Zd at 852(TEx Crim. App.1992); Ehc parte Goodman‘,- 816 S.W._Zd
383, 385('I'ex Crim, App. 1991); Ex parte Russsll, 738 S.W.Zd 644, 646(Tex Crim.App.
1986). "f ..-; t

In addrsssi'ng 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 hesause they were litigated on direct appeal." (See; Memorand\m\/Findingr

PP° 1) § h ..' ;7 :`j - . '_-._

Applicant's ~Traversa"ro The Trial Court's Findings

Applicant now contends that the Court of Crimina1 appeals should not adopt the
trial court's recommendation that ground four and five be denied based upon the trial
court's finding that: ',;`

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

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

Applicant maintains that his claim presented in ground numbers four and '.r"ive`
`o£ 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'.i& 2d 383, 385(Tex. Crim. App. 1991); fhc parte Ruaaell, 738 S.W.2d 644(Tex
Crim. App.1986); Ex parte Schuessler, 846 S.W.Zd at 852(‘Dex 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
fundmental constitutional rights may be raised. Bx parte Schuss'_ler, 846 S.W.2d at 852
('Dex. Crim. App.1992)(granting relief due to lack of jurisdiction); m parte Russell¢
738 S.w.Zd 644('I'ex. Crim. App. 1986)(granting reliei7 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 venirenember)e m 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). `

_ l Here, in applicant's case now before the Texas Court of Criminal Appeale, 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
'I’exas Code of Criminal Procwure. (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 Appealsl shows that he now argues that -¢"Detective Anderson violated his
Miranda night guaranteed to him by the Fifth and Fourteenth mandnent 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 Crimina1 Procedure. (See: Memrand\m
of Law, pp. 14).

 

After compa§ing applicant's ground number four in his habeas corpus petition to
applicant's claim number gone on direct appeal it becmes 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. ' '

4 § 349 . .
x ¢' ' ’
_»» z_‘, j `

-+

 

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: Opi`ni`on of the Eight Court of Appeals, pp.5). However, a review
" 'of applicant's fifth ground for review on his habeas corpus petition showe:`l 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 q
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) " "

r1
¢: " .

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
of‘.. fundamental error based upon a theory not alleged on direct appeal. Conse§uently, .
` the trial court's finding that --"applicant's Miranda and due process grounds for re-
a `lief are not cognizable because they were litigated on direct appeal"--must be over- `

ruled and the'caee _reltianded back to the trial court for a n'éw trial.` ` ' o ` "
" occlusion

In conclusion, the findings of fact and conclusion of law rec¢umnended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two hand 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- 'rhe cpur`t. ` `

Respectf`uny submitted,
Hg§§§gyd€§§§@n No. 1826716 _

'f» 4 ~ ' 2661 F. M. 2054 _z
Tennessee Colony, Texas 75884
10

. certificate Of 3e1-vice ::,- ;;

   

 

I, Matthew Cotten, Applicant, Pro se, do hereby certify that 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.

   

,' x \"
7 } r;)_\. w
b ,¢ .,§
.`. }_,
;~, r~ , ' v
' " Applicant, Pro §
'/ :k
w 11 =4,
A_ .} . a
‘ 3 _ ¢- .`:
. ,: ," w
,. ' ~. ,,
.. ,
, ' 5 j ‘
\,` ‘5' .
.. \ I- . ‘
v . .") .
§ ‘ , .~. '
' ' -, `~ ' ‘. :’\.
" § . ' _ T. v ' ~.
,. 11 . .
~,. ';’ " ", \`
.=L '“’ l ")' " ‘
..‘.. ~,v §_1'

11

,.;.writ No. c-4324016"375~`-§1-2271'1,1"-A .

umwa mm¢mnaaudioai

 

On January 4, 2015. Applicant filed this foregoing writ of habeas corpus ’e '
alleging:; five constitutional veeiolatione during the course of his trial court proceeding. '

In ground nuber one, Applicant contends that his sentence of twenty;" years in Cause
No. 1227111D ¢ is i'llegal because the "Judgment of conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhanoonant' paragraph
true; thereby waiting his punishment escoeseive.

In gmund number two, applicant contends that his sentence of thirty years in Cause
No. '1.227111D , is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12. 42(¢),`
Texas Penal Code, thereby denying him due process under the Sta@and Federal Con-
stitution.

fn ground lamar 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 Amenamnt,""whan ne
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"n under ne Fifth ana Fourteenth malone when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement against himself.

e
..¢; »T\\~:

;;"

 

Argument And Authorities
Ground N\nnber- One :.

In ground number one, Applicant argued that his ’esentonce of twenty, years in
Cause No. 1227111D is illegal because the""Juth Of conviction By Court" and
the "Record At Trial" shows that the trial court found only one enhancensnt para~ `
graph true, thereby making his punishment excessive

stata'a`neply 1b petition ron mt of leases comm

In addressing ground unumr)er one, the district attorney argued that relief should
be denied simply because -»-"the indictment alleged tva prior felony convictions§ a '
2003 conviction for possession of a firearm by a felon, and a 1997 conviction far -`
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 twenty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not soccessiva." (See; State's Rsply To Petition For writ Of Habeas
¢orpu'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 "Judgment of Comriotion 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 Oi’ Conviction By Court, Appendix No. 1-5, and
R.R. Vol#2, pp. 109 through pp. 114).

 

Applicant maintains that because the "Judgment of Conviction:hand the Reporter' 's '
Record" at tri’al showe 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).

;'.'L;»= a

.»,:,

0n February 2, 2015, the habeas court issues it's "Mem¢_)randm / Findings" adopting
the district attorney s interpertation of the events on a1l 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-"fl_‘he Court finds that the applicant's thirty year sentence is hot excessive.
The court recommends that this ground for relief be denied." (See: Memorandum /_ §indings,
PP-l)~ ‘ * ~;F - _ - ~.z\::_ f

 

 

Applicant's Traverse 'Ib The Trial Court's Findings

-I

Applicant now contends that the Court of Crimina1 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 a_t trial which shows 4_
that the trial court only found one enhanth paragraph to be true. (See: Judg- ‘ `
ment of Conviction By Court andl-z(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 reviewa 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#$,pp.?, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at 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 i222336, 1227019, 1227020, 1227021, 1227111. all respectively styled the
State of Texas versus Matthew C. Cotten.'f'he respective ermancements are also found
to be true. In the cause mmbers, with the emption of 1227111, the Court hereby
sentences you to 30 years in the In_stitutional Division of the Te:me Department of
Criminalj_.juetice. l~n Cause No. 1227111, theCourt hereby sentences you to` 20 years
in the I_nstitutional Division of the Texas Department of Crimina1 Justice." (R.R.
Vol#B,PP.SG,line 18 through pp.87_,line1-7).

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. Bx Parte Rich, 194 S.W.3d 508, i
511(Tex Crim. App.2006). I_N explaining how Section 12.42(d) operates, the Court of
Criminal Appeale have consistently held that the State must present evidence which
supports the enhancement allegations contained in the indictmnt. This is because if
the proof at trial fails to corresde with the enhancement allegations. the punish-5
gene can not be legeiiy enhanced. cole v. state 611 s.w.zo 79, so(m. crim App. '
1981);_ Mizell V. State, 119 S. w.3d at BDS(Tex. App» 2006);_ Jordan V. State, 256
S.W.3d 200, 293(Tex. Crim. App. 2008). ` `

Here, in applicant's case now before the Court of Criminal Appeale the record
shows that at the '“’f`_`_',' hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain€;j; any evidence
of any prior felony convictions (R.R. \ Vo103,_13p.‘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 enhanth 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.

    

'Gro\md lumbermand‘mree

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 d
required by Section 12. 42(d), Texas Penal Code, thereby denying him due process
under the State and Federal constitution. ' ‘ b

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

State's~neply 'i'o Petition nor writ 02 imbeu_s corpus
In addressing grounds two and three, the district attorney argued that relief
Bh(mld 06 06_3160_::066312563 ):,;. ' . §\;§ _‘~_§~ '.~ §

'j"l‘he record herein is not totally devoid of evidentiary support for enhancing
the applicant's sentencing range." (see; stays Reply,pp,s). " y `

1'£ '*f.` ,.
mrs 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 indictamvnt, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
the:-’ appearance,confrontatim) and cross~examination of witnesses, and consented to oral
and written stipulations off:‘ evidence." (State's Reply, pp.5). ' _,;:

:; ".:f ~~ ' - » ' ” > “
lim:ever,_ the district attorney failed to address applicant's constitutional
questions of lauj and fact regarding applicant's claim that the State presented ".no v
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 Amsndment of the tmitad States Consti-
tution. (State's Reply, pp.5-6)

Applicant maintainsthat 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 presentations regardless of the plea or whether the punislnnent is assessed
by the judge or the jury, in no event shall a person charged with a criminal* offense
be convicted upon hiss plea without sufficient evidence to support the sam. Arti`cle
1.15, rees cone of criminal Procedure; stone v. state 919 s.w.za 424, 426 (:Ts¢.
crim. App. 1995):’, messer v.` scate, 729 s.w.zd eeq,sve(m.crim.z\pp.wae); stokes v.
miss 744 v.za at wagenmann v. muisvma, 352 v.s. 199, ao`s.cr.,‘ 624(1978.).

Furthermore, proof of prior convictions contained within the presentence inves-
tiga_tion report is inadmissible as proof of a final conviction where the P.S.I. report
did not contain certifi£;ed copies of prior judgment of'-' convictions against the appli-
cant. Garcia V. State, 930 S_..w.Zd 621, 623(Tex. Crim. App 1996) Likewise, in:` order for
a stipulation eto be cn_nsidered as evidence where the plea is before the court, the state
must introduce aj copy of the judgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.Zd at 698; Stone, 919 S.W.Zd at 426; E:x parte Brown, 757 S.W.Zd at
368; Ex parte Rich, 194 s.w.ad a{-, 513. '

w ;; ?"? . ,. . '~ 0 '11

,-x '.,_4 §§ ;:‘ v 1‘: 1 __ '_ _. n 1

Here, in applicant's case now 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 conclusion, th’e record clearly shows that the State denied applicant due _
process add due couése of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 1_2. 42(d),
Texas Penal Code; Article 1 15, Texas Code of Crimina1 Procedure; and the Fifth
and Fourteenth§ Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentia'\ elements of the enhance-1
ment allegations.true beyond a reasonable doubt. "

Habeas Court lunranduin / Findings
In addressing ground number two and three, the trial court erred in stating z
"The Court finds__ that»;' the applicant's judicial confession provides sms evidence

supporting the enhancenent of his sentencing range to habitual offender "statu‘s.
The Court reconmends that gr6unds for relief be denied. (See: Memorandum / Findings,

pp- 1)

Applicant'o Traverse lb lhe'l‘rial court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recaz_mendation that ground two and three be denied based upon the trial
court's finding that_--.~”applicant's judicial confession (standing alone) provides some t
evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that _hi_s judicial confession standing alone "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: Garoiia v. State,
930 S.W.Zd 621, 623('1_‘ex App. 1996);_ Ex parte Brown, 757 S._W.Zd at 368; Bx parte
‘Rich, 194 S.w.Bd at 513.

The lmras` Court of Criminal Appeals have long held that in all criminal -_pr_esecu-
tions regardless of the plea or whether the punishment is assessed by the judge or tv
the jury, in no event shall a person charged with a criminal offense he convicted upon
his plea without sufficient evidence to support the same. Article 1.15, lmras Code of
Criminal Procedure; Stone V. State, 919 S.W.Zd 424. 426(’!‘€3: Crim. App. 1996); Messer-
v¢ State, 729 S.w. 2d 694, 698(l'e_x Crim.App. 1986). I._Ikewise, allegations of prior
oonvicti<ujss contained within the presentence investigation report is inadvissible 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 sumary, the State must introduce a copy of each judgment of conviction, in each
case used for enl:)ancenent purpose. See: Section 12. 42(d), lmras Penal Code; l’errell
V. State, 228 S.w.Bd 343 at 346; Ex parte Rich. l194 S.w.3d at 513._

Here, in applicant's case nov'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. (See: R.R. Vol#Z,pp.l\d, 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 *l‘hus, based n
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 court for a nov
punishment hearing.

Grramd mmherFourAnd Five

m,-grouna_.numaer four ana five, Appuéant argued that Detectin maez-ami 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 Crimina1 Proceedure. " '

= In groand namber five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Gcnstita-
tion when- he threatend"" physical harm to him and his property in erder to coerce him
to g1ve a self-iheriminating statement against himself. _ L’ § .l;;_ §

_ stace'e neplywpatnim-For writ or renew campusd .

I_n addressing ground number four and five, the d1str1et attorney argued that
relief should be denied bmauses ' ‘

"The applicant's Miranda and due process grounds for relief are ndt cognizable
because these same complaints were rejected 'on direct appeal." (See; State's Reply,

However, the district attorney has failed to address applicant's constitutional -
questions of law and fact regarding additional evidence that is being preeente`ds for
the first time in vthis.£oz:e<`_`;oing habeas corpus petition that was not presented nn
direct appeal. 'Ijhis evidence creates an exception to the general rule that claims
raised and rejected on direct appeal fare not cmgnizable on habeas corpus. Ex parte
schueeeier. 846 S.w.za at asz(rm:. crim. App.1992); ex parca'eoodman, 818 s.w.zd
383, 385(‘1'ex Crim,_ App 1991); Ex parte Russell, 738 S.W.Zd 644, 646('I‘ex.` Crim.App. '
1986). '

`Iu addressing"_ground n\mzber; four and ._’five,_ the trial court erred in\stating'¢
"The Court finds that the applicant's miranda and due process grounds for relief are

5cognizable because they were litigated on direct appeal._" (See; Meznorand\m)/Finding,
Pp- nol)-'

Applicant's Trav.erse To The Trial Court's Findings

Applicant now centends that tlfie Court of Criminal Appeals should no§ adopt the
tria1 court's recommendation that ground four and five be denied based upon the trial
court's finding that=' ' ` ' i _

w "applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal." (See: lienorandlm\ / Finding, pp.l) '
Applicant maintains that his claims presented in ground numbers four an‘d five

of the foregoing habeas corpus petition should not be subjected to procedural bar, f
because his craims 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.w.Zd 383, 385('I"ex. Crim. App.1991); Ex parte Russell, 738 S.W.2d 644('1'ex.`
Crim. Ap`p_.1986);- Ex parts Schuessler, 846 S.W.Zd at 852('1‘ex 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%er, 846 S.w. 2d at 852
(Tex Crim. Ap`p. 1992)(granting refl1ef due to lack of jurisdiction)_; Ex parte Russell,
738 S.W. 2d 644‘(Tex Crim. App. 1986)(granting relief due to inproper admission of void
prior conviction); Ex parte Bravo, 702 S. W. 2d 189(Tex Crim.Ap`p 1982)(granting relief
do to the improper excusal of a veniremember)c Ex parte Clark, 597 S.W.2d 760('I\S:.
Crim.App.lQ?Q)(granting relief due to the trial _'oourt's failure to apply the law to j
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 statment 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: Memrandmn
of Law, pp.14). '

After cmparing applicant's ground nmnber four in his habeas corpus petition to
applicant's claim number :-'.?f;'bne on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
f ' based upon a' theory not alleged on direct appeal. Consequently, the trial court's 'fi“nd_irigf-y
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 relaa\nded back to
the trial court for a new trial.

Likewise, a` review of applicant's second claim` on direct appeal sho-ws that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
voluntarily made. (See: Opinion of_ the Eight Court of Appeal€"» pp._§)'. 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-incrini nating
statement against himself. (See: Applicant's Memorand\m of Law, pp.l?). ` ‘

In smary, after comparing applicant's ground number five in his habeas corpus

f 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 l
of _.';fundamental error based upon a theory not alleged on directi‘? appeal. Conseguently,

_` 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"--nnzst be over-

' ruled and the case renanded back to the trial court for a new trial. ' .’ '

conclusion

In conclusion, the findings of fact and conclusion of law remanded 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 rmande_d for a new trial based upon grounds nmnber four end five. Appli-

. cant So Hoves The Court.

Respectfully Submitted:
U§H€ch&§§€n No. 1826716

` .» _ f 2661 F.M.= 2054
Tennessee Colony, Texas 75884
10

aaa

partitian or sam ca `

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

Sigm __

caselaw cotten No. . 1826716 _, ' `
Applicant, Pro se§. ,,

1_1

