                                          SCHAFFER LAW OFFICES
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                                                1301 McKINNEY, SUITE 3100
                                                 HOUSTON, TEXAS 77010
Randy Schaffer, P.C.                                                                                     (713) 951-9555
    noguilt@swbell.net                                                                              Fax: (713) 951-9854
Josh Schaffer, P.L.L.C.                                                                           www.schafferfi rm.com
     josli@joshschafferlaw.com
Joel Hayter
    joelhayterlaw@gmail.com


         April 21, 2015

         Velva Price                                                    VIA FEDERAL EXPRESS
         Travis County District Clerk                                   NO.: 8043 4350 6618
         Criminal Justice Center
         509 West 11th Street, Suite 1400
         Austin, Texas 78701                                                        RECEIVED IN
                                                                               COURT OF CRIMINAL APPEALS
         Re:       Ex parte Jorge Gutierrez
                   167th District Court
                                                                                       APR24 2015
                   Cause No. Dl-DC-10-203162-A
                                                                                    Abel Acosta, Clerk
         Dear Ms. Price:

         Enclosed please find Applicant's Objections To The Trial Court's Findings Of Fact And
         Conclusions OfLaw. Please prepare a supplemental habeas record containing this document and
         send it to the Court of Criminal Appeals.

         Please send me a file-marked copy of this letter indicating the date that you file this document.

         Thank you for your assistance.

         Sincerely,



        Randy Schaffer
        Enclosures


        RS/aw


        cc:        Lisa Stewart
                   Abel Acosta
                           IN THE 167™ DISTRICT COURT
                             OF TRAVIS COUNTY, TEXAS

EX PARTE                                         §
                                                 §   CAUSE NO. Dl -DC-10-203162-A
JORGE GUTIERREZ                                  §

             APPLICANT'S OBJECTIONS TO THE TRIAL COURT'S
               FINDINGS OF FACT AND CONCLUSIONS OF LAW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:


         Jorge Gutierrez files Applicant's Objections To The Trial Court's Findings

Of Fact And Conclusions Of Law and would show as follows:


                                            I.


  THE TRIAL COURT LACKED JURISDICTION TO ENTER FINDINGS
   OF FACT AND CONCLUSIONS OF LAW AFTER THE CASE WAS
                         TRANSFERRED TO THIS COURT


         This case demonstrates how broken the habeas system is and how easy it is

for habeas prosecutors and judges to conduct proceedings without including

defense counsel (not to mention pro se applicants).

         Applicant filed a habeas corpus application, brief, exhibits, and a proposed

Order Designating Issues (ODI) with the Travis County District Clerk on February

18, 2015.      He requested that the district clerk serve the district attorney in

accordance with the statute and provided an extra copy of the documents for the

judge.

         The judge did not sign the ODI within 35 days, and the district clerk sent the
habeas record to this Court on March 26, 2015. The case was docketed under

cause number WR-83,072-01. Thus, the trial court lost jurisdiction to take any

action in the case on March 26 because it did not sign an ODI and the case was

pending in this Court.

        The State filed an answer and proposed findings of fact and conclusions of

law on March 25, but the habeas prosecutor did not serve applicant or his counsel.

Counsel called the Travis County District Attorney's Office on April 3, requested

the name of the habeas prosecutor, called her the same day, and asked whether she

intended to file an answer.        She told him that she had already done so; at his

request, her secretary emailed the documents to him that day. Counsel sent a

supplement to the habeas application to the district clerk on April 6.

       The trial court signed an order adopting the State's proposed findings of fact

and conclusions of law on April 9. The district clerk mailed a copy of the order to

counsel on April 16, and he received it on April 18.

       Counsel did not have an opportunity to request a hearing and/or argument in

the trial court or file proposed findings of fact and conclusions of law before the

district clerk sent the case to this Court. The trial court signed an order adopting

the State's proposed findings and conclusions two weeks after this Court received

       1 Neither document contains a certificate of service, and the habeas prosecutor
subsequently told counsel that she did not serve him because it is the district clerk's
responsibility to do so. One would think that a 27-year appellate prosecutor who also was a
briefing attorney for this Court would know that she must serve documents on opposing counsel.
and docketed the case.          This Court should reject the findings and conclusions

because the trial court did not have jurisdiction to make them and the proceeding

was conducted in an ex parte manner where applicant's counsel was not served

with any of the State's pleadings or given the opportunity to be heard.

                                                 II.


                               THE EVIDENTIARY ISSUES


        Applicant contends that trial counsel performed deficiently in failing to file a

motion in limine and object to the lead detective's opinion that he saw no evidence

of self-defense, a lay-witness's opinion that this was not applicant's "first rodeo,"

and a DPS chemist and the prosecutors referring to the deceaseds as the "victims."

Applicant also contends that counsel performed deficiently in failing to impeach

the key prosecution witness with his prior statements to the police.                       Counsel

provided an affidavit acknowledging that he should have sought rulings on these

matters in limine and preserved error for appeal.

       The trial court concluded that, even if counsel performed deficiently,

"applicant did not suffer any prejudice therefrom given the facts of this offense"

(Finding 7). It also found that counsel objected to use of the term "victim" and

received a ruling that it was not improper (Finding 8).



...... •,2 The trial court cited a case holding that the State's use of the term "victim" during jury
argument is not erroneous (Finding 9). This conclusion is irrelevant, as applicant challenged the
use of the term during testimony rather than argument.
         The trial court's finding that counsel made an objection to use of the term

 "victim" that was overruled is not supported by the record. Counsel approached

 the bench and said, "I guess it didn't do any good to file a motion in limine

 because they keep using the word victim victim victim" (7 R.R. 175).                The judge

responded that counsel had given him a case that did not "say it is improper" but

agreed to reread the case. Counsel commented about the use of the term "victim"

but did not preserve error for appeal because he did not make a motion in limine,
                                                           /

object, or obtain a ruling.

        The trial court refused to make findings and conclusions with regard to the

allegation that counsel performed deficiently1 in failing to impeach the key

prosecution witness with his prior statements to the police because it was not

included in the form habeas application (Finding 5). However, habeas counsel

immediately remedied this defect after he received the State's answer by filing a

supplement to the application that, included the issue.4
        The trial court's cursory conclusion that, even if counsel performed

deficiently with regard to these evidentiary matters, applicant did not suffer any



        3Counsel's motion in limine sought only to exclude "victim impact evidence" during the
guilt/innocence stage (C.R. 32). It did not seek to prevent prosecutors and witnesses from
referring to the deceaseds as the victims during the testimony.

        4 The district clerk sent the supplemental record to this Court on April 20, 2015. This
Court has.not received the trial court's order adopting the State's proposed findings and
conclusions. Thus, it appears that the district clerk received the supplement to the application
before the trial court signed the order.
 prejudice lacks any legal analysis. For example, the law prohibits a detective from

providing his opinion in a murder case that the defendant did not act in self-

defense.   It is difficult to understand how a defendant who relies on self-defense


has not been prejudiced when the detective testifies that he is "open-minded" and

will follow any lead in an effort to determine whether a suspect acted in self-

defense but did not see any evidence that appeared to be self-defense in this case.

The findings and conclusions fail to address the issues raised by applicant.

                                          III.


                   THE ERRONEOUS JURY INSTRUCTION


       Applicant contends that counsel performed deficiently in failing to object to

an incorrect instruction in the court's charge that the jury had to acquit him of

capital murder before it could consider the lesser offenses of murder. The State

concedes that the instruction was incorrect and that counsel performed deficiently

in failing to object to it. State's Answer at 25. The trial court concluded that, even

if counsel performed deficiently in failing to object, "applicant did not suffer any

prejudice therefrom given the facts of this offense" (Finding 7).

      The State contends that "there is no reasonable probability that, but for

counsel's failure to object to the single sentence in the court's charge, the result of

the proceeding would have been different."        State's Answer at 26. The State
 conveniently ignores the prosecutor's argument regarding this instruction (10 R.R.

 22):

               Now, you will also see in the charge only if you find the
               defendant not guilty of capital murder do you then even
               consider the offenses of murder. You have to go through
               that first, ladies and gentlemen. If you find him guilty of
               capital murder, you don't even consider those next two
               charges, okay, those next two paragraphs.

The trial court's cursory conclusion that applicant did not suffer any prejudice

ignored the prosecutor's emphasis of the erroneous instruction during summation.

                                          IV.


                 CONSTITUTIONALITY OF THE STATUTORY
              PUNISHMENT SCHEME FOR CAPITAL MURDER


        Applicant contends that counsel performed deficiently in failing to challenge

the constitutionality of the statutory punishment scheme for capital murder as

applied, where it requires a sentence of death or life without parole for a defendant

who murdered two persons during the same transaction but also committed one or

both murders under the immediate influence of sudden passion arising from an

adequate cause.

        The trial court concluded that counsel did not perform deficiently in failing

to make this challenge because the evidence did not raise sudden passion arising

from an adequate cause (Findings 10-12). Applicant has explained in his brief why

it did. Applicant's Brief at 23-24. Simply stated, a properly instructed jury could
have found that the deceaseds and their companions started a brawl outside a club

that led to the fatal shootings.

                                          v.


                                   CONCLUSION


       This Court should reject the findings of fact and conclusions of law because

the trial court lacked jurisdiction to enter them. Assuming arguendo that the trial

court had jurisdiction, this Court should reject the findings of fact not supported by

the record and the erroneous legal conclusions, conduct a proper prejudice

analysis, and order a new trial.

                                                    Respectfully submitted,



                                                    Randy SfeAffer' 9
                                                    State Bar No. 17724500


                                                    1301 McKinney, Suite 3100
                                                    Houston, Texas 77010
                                                    (713)951-9555
                                                    (713) 951-9854 (facsimile
                                                    noguilt@swbell.net
                                                    Attorney for Applicant
                                                    JORGE GUTIERREZ
                          CERTIFICATE OF SERVICE


      I served a copy of this document on Lisa Stewart, assistant district attorney for

Travis County, P.O. Box 1748, Austin, Texas 78767, by United States mail, postage

prepaid, on April tt*, 2015, even though she did not timely serve a copy of the

State's answer and proposed findings of fact and conclusions of law on me.




                                                   Randy Sniffer
