May 25, 2015

'IO: Texas Court of Criminal Appea]__g " l ` §§ l S@L‘/ 0 t

Clerk of the Court l
P.O. Box 12308 ~
Austin,. Texas 78711-2308 ‘ ` RECEN/ED lN

FROM: James Alva. Elston.# 1645172 y - COURTOF CR'M'NALAPPEALS
Ellis Unit
1697 FM 980 - MAY 28 2015

Huntsville, Texas 77343

RE: Ex Parte James Alva Elston Trial Court No. W11242-1 3355th‘6£¥%%§3@$@&p£¥§@k
Objection to Trial Court's Order

Dear Clerk,

_Enclosed please find an original of my objection to the trial court's order
to my post conviction application for writ of habeas corpus. l am requesting that
this objection be included in the record in this.court, aS.I believe the writ has
already been filed in this court. ' '

l am requesting that the court remand the cause to the trial court to do ap-
propriate findings of fact and conclusions of law. Please file the objections
at your earliest convenience. By copy of the same, l have served the district at-
torney and the trial court. '

l thank you for your time and attention to my request.

enclosure ’ \
cc:file

D.A.

Court, 355th

jae/fn- ' Respectfully,

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CAUSE NO. W1124251
EX PARTE IN THE 355th JUDICIAL

DISTRICT COURT OF

WJC/.`/JL’/.`/)(/])¢/"/)

JAMES ALVA ELSTON, lll HOOD COUNTY, TEXAS
APPLICANT'S OBJECTION TO TRIAL CDURT'S
.PoST ooNvIcrloNHABEAs jczoRPUs oRDER

10 IHE HoNoRABLE JUDGE oF SAID ooURT=

Comes Now, James Alva Elston, III, Applicant, pro se and files this objec-
tion to the trial court's post conviction habeas corpus order entered in this
_cause.'

FACTS APPLICABLE TO THE CLAIMS

All factual allegations from the application are adopted herein. The state
has chosen to ignore the application for writ of habeas corpus filed by the Ap-
' plicant, by failing to enter a response under Tex. Code Crim. Pro. Art. 11.07
§ 3(b). This sets up an answer in the form of a general denial and has become
the finding of fact by statutory default.

The Applicant however, maintains that all of his factual allegations stated
in the application are true and correct, have been verified under penalty of per-
jury, and supported by uncontroverted evidentiary material in an exhibit record

that accompanied the application. See application, memorandum of law in support,

and exhibit record.
omECHON 10 ~._TRIAL ooURr oRDER
On May 8, 2015, the trial court entered an order holding that there are no
controverted, previously unresolved issues of fact material to the legality of
Applicantfs conviction, and recommended relief be denied. Tex. Code Crim. Pro.
Art. 11.07 § 3(c).{lhe_Applicant objects to the court's holding. As stated above,
the Applicant supported his factual allegations by verifying them under penalty

of perjury, uncontroverted evidentiary material and an exhibit record. The fact-

1.

ual allegations alone may not warrant relief. Ex Parte Empey, 757 S.W.Zd 771,775
(Tex.Crim.App.1988). f k n

However, factual allegations which are supported by substantial evidentiary
material may warrant relief. "lt is the Applicant's obligation to provide a suf-'
ficient record that supports his factual allegations with proof by a preponder-
ance of the evidence." Ex Parte Thomas, 906_S;W.2d 22,24(Tex.Crim.App.1995); §§
Parte Chandler, 182 S;W.3d'350,353 n.2(Tex.Crim.App.2005)(adopting trial court
finding of fact, denying relief§ noting Applicant did not provide a copy of trial
testimony in writ record)).

The Applicant, unlike the applicant in Chandler, supra, provided copies of
relevant portions of the trial transcripts in an exhibit record annexed to the
application for writ of habeas corpus("app."). Copies of the official record in
the trial court far exceed even the basics of a preponderance of the evidence,
and establishes a prima facie case of meeting that standard until proven other-
wise. "Evidence preponderates where it is more convincting to the [trier of fact]
than the opposing evidence." Ex Parte Chandler§ supra at 353(quoting McCormick7
EVIDENCE 793(2nd Ed. 1972); see also, Ex Parte Richardson, 70 S.W.3d 865,870(Tex.
Crim.App.ZOOZ). Considering that official records from the Applicant's trial were
provided to support his factual allegations pointing to obvious errors, it is more
convincing than not, that the Applicant is entitled to relief-

The Applicant also provided an affidavit from an uncalled witness, the Appli-
cant's mother, Debbie Elston, whom would have testified had she been called. How-
ever she was not through no fault of the Applicant. The affidavit supports the Ap-
plicant's allegation of ineffective assistance of counsel against his trial lawyer
during the punishment phase of trial, for failing to call a witness. See app. at
Ground Three; Affidavit of Debbie.Elston. The affidavit establishes along with the
facts in the app., that Applicant's trial counsel rendered deficient performance.

2.

The Applicant also provided an affidavit of his own, by way of an unsworn

declaration, attesting to the same operative facts. See Unsworn Declaration of_

 

James Alva Elston.~Iherefore, the Applicant has far exceeded his burden alleging
facts by a preponderance of the evidence supporting his factual allegations. lhg;
ma§, 906 S.W.Zd at 24; Chandler, 182 S.W.3d_at 353; The accuracy of the trial co-
urt's order that there are no previously, unresolved issues is now in question.

. The Applicant alleged in the app. , inter alia; ineffective assistance of tri-
al and appellate counsel. By the very nature of the allegations, claims of ineffec-
tiveness, will in all likelihood, require evidence(affidavits) from outside the
trial record, to make a fully developed record. There has been no deficient and
prejudice findings of fact and conclusions.of law rendered on these claims. The
trial court should have, but chose not to, at a minimum, enter an order designat-
ing issues, ordering both trial and appelate counsel to respond; A trial court
acting as the habeas court, can resolve these issues by affidavit; depositions,
interrogatories, hearing and personal recollection. Tex. Code Crim. Pro. Art. 11.
07 § 3(d); Ex Parte cames, 579 s. w. 2d 249 ,.250(Tex crim.App.1979).

When counsel' s performance is called into question by a convicted defendant,
a trial court should require counsel to respond to defend his performance and rep-
'utation. Andrews v. State, 159 S;W.3d 98(Iex.Crim.App.2005). ln Applicant's case
however, no such order was entered. The trial court failed to exercise even mini-
'mal concern for the constitutional rights of the Applicant, by wholly ignroing
the serious allegations of ineffective assistance of counsel. Applicant's rights
were violated under the Sixth and Fourteenth Amendments of the United States Con-
stituion; Art. 1, Sec. 10, Texas Constitution; Texas Code Crim. Pro., Arts. 1.05;
1.051; and 26.04; Strickland vl Washington, 466.U.S. 668(1984); Hernandez v. Sta-
E, 726 S.w.zd 53,56-57(Tex.crm;App.1936).

The trial court also missed a second opportunity to gather evidence and devel-

3.

,Qp the record, by failing to rule on Applicant's motion for evidentiary hearing,

that accompanied-his application. See Applicant's Motion For Evidentiary Hearing.

 

"lt is axiomatic that the Court of Criminal,Appeals is not bound by the trial
court's findings of facts." Ex Parte Bates, 640 S.W.Zd 894,898(Tex.Crim.App.1982).
"While the court is not bound by the trial court's findings, the court should fol-
low them where they are supported by the record." Ex Parte Brandle , 781 S.W.Zd
886(Tex.Crim.App.1989)j Ex Parte Adams, 768 S.W.Zd 281(Tex.Crim.App.1989); but see
Ex Parte Canedo, 818 S.W.Zd 814,815(Tex.Crim.App.1991)(trial court's conclusions
was "unsupported by the record")). Based on the factual allegations in the appli-
cation, along with both the affidavit and unsworn declaration in Support, coupled
with the trial transcripts, the trial court' s conclusion that there are no previ¥
ously, unresolved issues of fact is erroneous. Therefore, the trial court' s find-
ings are unsupported by the record. §§n§dg} supra. v

The Applicant contends that further facts are necessary for a fully developed
writ record for a disposition, and a remand order from the Court of Criminal Ap-
peals is warranted. The remand should require the trial court to not only address
claims unrelated to ineffective assistance, but also require the court to either
conduct a hearing, or gather information concerning ineffective assistance via
other statutory avenues, including use of affidavits,.Ex'Parte Smith, 650 S.W.Zd-
68,69(Tex.Crim.App;1981); accord, Ex Parte §§mpos, 613 S.W.Zd 745,746(Tex.Crdn{
App.1981). Remand is warranted to ensure that all constitutional protections that
are afforded to the Applicant are fully and adequately addressed.

OONCLUSION

The trial court wholly failed to address the seriousness of the ineffective
assistance of counsel claims, leaving open the question, as to what strategy can
imagined, for the acts of errors and omissions. The trial court should have, but`

' did not, at a minimum, to ensure the constitutional protections afforded to the

Applicant, required trial and appellate counsel to respond, before the court de-

4.

\ termined, and recommended relief be denied. The process used in Applicant's appli-
cation for writ of habeas corpus is fundamentally defective. Remand to the trial'
court is warranted.

PRAYER:

WHEREFORE, PREMISES-CONSIDERED, Applicant prays that this objection be entered in
the writ record. Applicant further prays that an order be entered remanding the
case to the trial court for further fact-finding and conclusions of law. Applicant
further prays for any other relief that is just and equitable.

Respectfully Submitted,'

c‘ ' "#/é 7;/71

_ _ -5>\5"9~0)§
d GERTIFICAIE oF. sERvIcE _

I hereby certify that a copy of the foregoing has been delivered to prison author-
ities for mailing by U.S. Mail, postage pre-paid, first-class to the Hood County
District Clerk, 1200 West Pearl Street, Granbury, Texas 76048, and the Texas Court
of Criminal Appeals, P.O. Box 12308, Austin, Texas, 78711-2308, and the Hood Coun-
ty District Attorney, 1200.West Pearl'Street, Granbury, Texas 76048 on this the
25th day of May, 2015. -

  
  

‘ :v /675/7»2
_ 5~9~§-2¢/€
UNSWORN-DEKIARAITON_ `
l, Jame_s Alva Elston, III, TDCJ #.-1645172, DOB _LL/O 7 / 73 , being .presently.
incarcerated in the Ellis Unit of the Texas Department of Criminal Justice, city
of Huhtsville, county of Walker, declare under penalty of perjury that the fore-

going facts alleged herein are true and correct.
YM_QML/;Mz¢%ww
plicant, pro se l;gu;§;_;zo£§

Exe¢uted on this the 25th day of May, 2015.

