82 ,61767 '02,05.@<!

Mr. Mario Perez
TDCJ-CID #1534249
Connally Unit

899 FM 632

Kenedy, Texas 78119

Court of Criminal Appeals of Texas
Court Clerk

P.O. Box 12308

Capitol Station

Austin, Texas 78711

Re: Ex parte Mario Perez, No. WR-82,979-02 ; Ex parte Mario Perez, No.
WR-82,979-03; Ex parte Ma;io Perez, No. WR_32i97919£_

 

Dear Court Clerk:

Please file the enclosed Applicant'S Objections to Trial Court'S Findings¢ofr
Fact and Conclusions of Law in the above Styled and numbered cauSeS.

Please notify me of any action taken by the Court on my Applications for Writ
of Habeas Corpus.

Thank you.

Respectfully Submitted/

Mario Perez, Pro §

¢/'2'/9”

Date

. RE€EWE`D m
COURT OF CR!MJNA.!. APPEALS

APR 06 2015

Abe| Acosia. Qlem

COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN/ TEXAS

` EX PARTE
Tr.Ct.NoS. 2006-CR-5055B-Wl; 2006-CR-
MARIO PEREZ, 5056B-Wl; 2006-CR-5057B-W1

_ 4 - .
TDCJ CID #15342 9'. Tex.Crlm.App.NoS. WR-82,979=02; WR-

Applicant_ 82,979-03; WR-82,979-O4

 

_APPLICANT'S OBJECTIONS TO TRIAL COURT'S`
FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Applications for Writ of Habeas Corpus
Seeking Relief from Final Felony Convictions
399th District Court of Bexar County, Texas

Honorable Ray Olivarri

 

By:

Mario Perez, Pro Se
TDCJ-CID #1534249`
Connally Unit
899 FM 632
Kenedy, Texas 78119

I . INTRODUCI‘ION

Applicant Mario Perez filed his Applications for Writ of Habeas Corpus
in March 2014, requesting relief from three aggravated robbery convictions.
The Trial Court entered orders designating issues to be resolved. §§§_Trial
Court's Orderv on Application for Postconviction Writ, pp. 1~2. The Trial Court,
ordered Mr. Perez's trial attorney Michael Machado to file written affidavits
in response to Mr. Perez's claim of ineffective assistance of counsel. ld;
After Mr. Machado filed the affidavits, the Trial Court entered its Findings
of Fact and Conclusions of Lawl §§e Trial Court's Order Dated March 13, 2015.
Mr. Perez did not receive the Trial Court's Orders in the mail until March 261
2015-three days after the deadline for filing objections to the Trial Court's
Orders under Texas Rule of Appellate Procedure 73.4(b)(2). Through no fault of
his own, Mr. Perez did not receive the Trial Court's Findings of Fact and
Conclusions of Law within the lO-day deadline for filing objections. The
Trial Court recommends that relief be denied. Mr. Perez reurges both of his
Grounds for relief and the facts stated in his Affidavit attached to his
Applications as Exhibit A. In an abundance of caution-and in the interest of
justice-Mr. Perez respectfully lodges the objections below in Section IV.

II. STATEMENTS OF FACTS

.Mr. Perez pleaded no contest to three counts of aggravated robbery on
July 30, 2608. l CR llO, 202, 204; On October 6, 2008, the Trial Court
sentenced him to 50 years imprisonment and a $2,500 fine for each count of
aggravated robbery. 3 RR 74. Before he entered the no§contest pleas and
during the months leading up to his punishment trial, Mr. Perez asked the
Trial Court several times to allow him an opportunity to terminate Mr. Machado's

employment and retain new counsel. 2 RR 7, 9-10; l CR 197-98. The Trial Courti

'denied those reguests. 2 RR 9-10; l CR 200.

quxthzs u>TrL£_Gmxt'sEinNngscf'Exi.atlGJIHusLJEsofIaw-PBKBZ

Mr. Perez based his requests on the fact that he could not trust counsel
v due to several issues that had arisen between the two. l RR 197-98; 2 RR 9-10.
Defense counsel asked the Court to permit him to withdraw. l CR 198. At
sentencing, Mr. Machado pointed out to the Trial Court that Mr. Perez received
plea offers of 35 years and 45 years, but he "wrecked only because he was
fighting with me, as you'll.recall._ He didn't trust me because he didn't
think I was listening to his side of the story." 3 RR 72.

III. STATEMENT OF THE CASE

Mr. Perez pleaded no contest to three counts of aggravated robbery on July
30, 2008. l CR llO, 202, 204. On October 6, 2008, the Trial Court sentenced
him to 50 years and a $2,500.fine on each count. 3 RR 74. The Fourth Court of
Appeals affirmed the convictions. ;Perez v. State, No. 04-08-00765, 66, & 67-CR
(Sept.9,20090. His Petitions for Discretionary Review were refused on January
27, 2010. Perez v. State, Nos. PD-l757, 58, &59-09 (Tex.Crim.App.). Mr. Perez
filed his Applications for Writ of Habeas Corpus on March 13, 2014.

IV. OBJECTIONS v

OBJECTION NO. l: THE TRIAL COURT DID NOT ADDRESS APPLICANT'S GROUND

l CLAIM THAT HE WAS DENIED HIS RIGHT TO COUNSEL OF CHOICE, IN VIOLA-

TION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

ARTICLE l SECTION lO OF THE`TEXAS CONSTITUTION.

Erroneous deprivation of the right to counsel of choice is a "structural
error" in violation of the Sixth Amendment and is not subject to harmless-error
analysis. United States v. Gonzalez-Lopez, 548 U.S. 140, 150-52 (2006). Here/
the Trial Court did not make any findings of fact or conclusions of law on Mr.
Perez's claim that the Trial Court denied him his right to counsel of choice.
§§§_Trial Court's Order Dated March 13, 2015.

Mr; Perez respectfully asks the Court to remand the case to the Trial

Court with instructions to enter findings of fact and conclusions of law on

Ground l of his Applications. Denial of counsel of choice is cognizable in

Ctjeiiorstof&ialCbxi's!§nddgscf'&xt ariGJKiuskxEsoflaw- R;p 3

11.07 proceedings. The Court of Criminal Appeals may entertain-on considera-
tion of a habeas corpus petition-claims of denial of counsel of choice. See

e.g. Ex parte Blassingame, Nos. WR-69,282-02 & WR-69,282-03, 2013 WL 5872882

 

(Tex.Crim.App.2013).

OBJECTION NO. 2: AN EVIDENTIARY HEARING IS NECESSARY SO THAT MR.

PEREZ CAN HAVE A FULL HEARING IN REGARD TO HIS CONSTITUTIONAL RIGHT

TO COUNSEL OF HIS CHOICE AND TO EXPAND THE RECORD IN THIS MATTER.

When a habeas applicant alleges facts that if true might entitle him to
relief, the Trial Court should hold a hearing. §ee Tex.Code.Crim.P. art.
ll.O7 § 3(d). Here, the Trial Court did not hold a full hearing on the matter
of Mr. Perez's desire to fire his attorney. Mr. Perez has never had the
opportunity to have a hearing on his constitutional right to counsel of his
choice. Mr. Perez raises factual matters in dispute that need to be resolved
with an evidentiary hearing. Although counsel states on p. 2 of his Affidavit
that "Mr. Perez DID have a hearing on his desire to terminate me as his trial
counsel" and "[t]he hearing was done at the bench," no one testified on the
stand at that time. What's more is that the record does not state exactly
what occurred at the hearing that was recorded or the hearing that was not
recorded.

Counsel also states that "[t]here was never any conflict at any time
between me and Mr. Perez.". Affidavit of Michael M. Machado, p. l. But then in
the same breath he states that Mr. Perez "lashed out. He made verbal threats
against me in the presence of the court's bailiffs." ld; Mr. Machado's own
version of the facts contradicts his own statement that there was no conflict.
Counsel's own version of the facts affirms that there was a conflict between
him and Mr. Perez.

Lastly, an evidentiary hearing would also determine whether counsel was

ineffective when he failed to call the conflict between him and Mr. Perez to

ijxtdxs U)Trtd.Glrt%sEuddr§<j?Eai;axiGmrLrnorsoflaw-H§p‘4

the Trial Court's attention earlier and failed to object to the Trial Court's
denial of a full hearing on the Motion to Withdraw which deprived Mr. Perez of
a fair and meaningful appeal. In these circumstances, a hearing should be held
for expansion of the record. Trial counsel's affidavit contains assertionsv
that are contrary to, or implausible in light of, the existing record. When
trial counsel presents an affidavit attempting to justify his performance at
trial for facially unexplainable conduct, the justifications not evident on

the record and presented for the first time in response to a petition for writ

of habeas corpus by the State have little value. See Virgil v. Dretke, 446

 

F.3d 598, 611 (5th Cir. 2006). Ascertaining whether a witness is telling the
truth-as yet an entirely unscientific task-demands an opportunity for the
factfinder to look the witness in the eye, observe his demeanor, note the
dryness of his brow, hear the inflections in his voice, and in general to

observe how he holds up in cross-examination. See Mendiola v¢ Schomig, 224 F.

 

3d 589, 596 (7th.Cir- 2000). "Cold paper records supply none of this infor-
mation." ld;
V . CONCLUSIONS

For these reasons, Applicant MarioiPerez respectfully asks the Court to
lremand the case to the Trial Court with instructions to hold an evidentiary
hearing on Grounds l and 2 of his Applications and to enter findings of fact
and conclusions of law on Ground l and amended.findings of fact and conclusions
of law on Ground 2. The facts supporting Grounds l and 2 are so intertwined
that the Trial Court ought to amend its Findings of Fact and Conclusions of
Law on Ground 2 after further factual development. In the alternative/

Applicant Mario' Perez respectfully asks the Court to enter any other order it

finds appropriate.

sUBMITIED and SUBSCRIBED on this the 'ZQ/ day of QQQ’[ , 2015.

ijedjfrs UoTkial Gant'sf§nddrs ofl§xt and(krclusd:rscf EIv-Fage 5

Respectfully submitted,

Mar§o Perez, Pr§§§e

TDCJ-CID #1534249
Connally Unit

899 FM 632

Kenedy, Texas 781l9

DECLARATION

"I, Mario Perez, TDCJ-CID #1534249, presently incarcerated in
the Texas Department of Criminal Justice Correctional Institutions
.Division at the Connally Unit in Karnes County, Texas on this the
M day of § al , 2015, declare under the penalty of perjury
under Chapt r 132 of the Texas Civil Practice and Remedies Code and
28 U.S.C. § 1746 that the statements in these Objections are true and
correct and at I placed these Objections in the prison mailbox on

Ww

 

' ijedjkrmsto'frt£.@antfs Edrirgs ofl§rt and<lxriuserscf LIN-Fege 6

CERTIFICATE OF SERVICE
I certify that I served opposing counsel with a true and correct copy of
these Applicant's Objections to Trial Court's Findings of Eact and Conclusions
of Law by U.S. mail, postpaid and placed in the prison mailbox, on this the
ZQBQ/day of ézgfyz , 2015, addressed to:
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center

300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Mario Perez §§

&jejjcrstoTrtHmert%thangaofEad:amiGJriu§cnsoflaw-Bxp'7

