Court of Griminal'Appeals Nov,;L,ZOlS
Of Texas \

P.O.BOS 12308

Capitol Station

Austin, TX 78711

RE: Ex Parte Nathan Rios Cause N0.2003-404,583-A d@%y

 

Dear Mr. Acosta,

Please find enclosed Applicant'S Objections and Response
to the Trial Gourt's Verbatim following of the State's Proposed
Findings of Fact and Conclusions of Law. Please file the same in
the Court's file as the Trial Court and State sent you the findings
after only less than 4 days of review combined by the trila court
and the State. Applicant understands that this document must be
filed in the trial court and has done so. Applicant files this
with this Honorable Court out of an abundance of caution to ensure
his objections are before the court at their first review.

Thank you for your time and effort Mr.Acosta, it is appreciated.

` ` `\
Sin¢erely,@ZS/Q&AL'
at an Rios

1261473 .
2101 FM 369 N.
lowa Park, TX 76367

PS: Please see the certification of service page that indicates
this document was also filed in the trial court.

xc/my file ' ~ 1

` go l gori/of

§ IN THE 140th DISTRICT COURT

ECE\\/ESMSE` NO~2003-404,583-A b

R s
EX PARTE comm OF cR\\\mNA\. APPEAL

N{N 09 20‘%5
§ oF

Amm@o@i@.@*e“l‘ l

LUBBOCK COUNTY,TEXAS

(/.`/>

NATHAN RIOS

APPLICANT'S OBJECTIONS AND RESPONSE TO THE TRIAL
COURT'S VERBATIM FOLLOWING OF THE STATE'S PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW.

 

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Now comes Nathan Rios, Applicant;nx»se, and files his res-
ponse to the trial Court's Findings of Fact and Conclusions of
Law,hereafter FFC,aS well as his objectionsnthereof:

l.

Applicant first objects to the Trial Court's verbatim Find-
ings of Fact and Conclusions of Law on the basis that the Find-
ings are not supported by the record or evidence in these procee-
dings. Ex Parte Reed 271 SW 3d 698,727. This Honorable Court def-
ers to the findings of the trial court in most situations when
those findings are supported by the record. However, this Gourt
in Reed supra also held that it should become skeptcal of findings
_ that are not supported by the record and may review the writ de no-
vo in the event that a number of the those findings are not supp-
orted by the record. The State, who presented no law to support
either it's "State's Proposed" FFC, a two page document that amou-
nts to a general denial, or their provided FFC supplied to the
trial court, obviously spent very little time reviewing this writ
that Applicant painstakingly took many years to research and pre-
pare. This is so based on the erroneous findings supplied and
most assuredly based on the time frame of review evidenced by the
record itself. The Trial Court Judge's adjudication of the writ
and verbatim following of the State's interpretation of the evide-
ence combined took less than 4 days. These complained of four days
include the day it was receivedKSee att-l)the returned receipt

post stamped Oct.22,2015, and the day it was mailed to this Hon-
1

orable Court on Oct.26,2015. Please notice that the Clerk file
Stamped the writ application itself at 2:54 PM on Oct.22,2015.
Applicant actually received the State's and Trail Court's findings
before he received the green card back. Of the 35 fives days alotted
for the State's and Trail Court's review, a total of less than four
days were spent on review of the merit of this claim. This in and
of itself does not legally mean that due diligence wasé'tktaken by
v both of the parties. However, it does explain the Trial Court's
verbatim following of the State's FFC. lt also explains why the

FFC are not supported by the record and evidence as Applicant will
demonstrate below. Applicant asserts that this Court should become
understandably skeptical of any findings that are wholly represen-
tative of the‘§adversary's], the State's, interpretation of the
evidence. The statute itself, T.C.C.P.Art 11.07, contemplates the
intentiona&nandidirectnparbioipationtbylthettrail court in these
proceedings and this important duty should not be relegated to

a simple signing of the State's FFC, in the interest of justice,
frespectfully.

Applicant requests that this Honorable Court remand this
writ application along with orders that this application be given_
a full and fair hearing on the issues presented as contemplated
by the statute itself.

Applicant also requests that,in that process, the trial court
be ordered to obtain affidavits from the challenged attorneys in
order to properly develop the record to properly adjudicate these
claims in a full and fair manner. The State should not be allowed
to attempt to cure the error claimed by Applicant without the
opportunity for the trial and appellate attorneys being afforded
the right to express their own reasons for their actions. App-
licant absolutely would not be allowed to give his opinion of why'
an attorney acted in a certain manner without the attorney being
afforded the right to explain himself. The adversary's opinion
of attorney conductshoulddtbe relied upon with out the attorney's
omninput. This is especially so when all parties have previously
agreed,and still do agree; that there was error that was not obje-

cted to in this jury charge.(See EX-4 p.3 the Court of Appeals

Opinion). 2

Applicant, alternatively, re-urges his motion for evidentiary
hearings with appointed counsel considering the new laws ineffect
concerning the appointment of counsel at the time of this filing,_
respectfully.

GROUND ONE: PAGE 2 OF THE FFC-INEFFECTIVE ASSISTANCE OF COUNSEL
FOR FAILURE TO OBJECT‘TO THE-INDICTMENT. '

Although Applicant admits that the Count Ill of the indictment
does contain the necessary language for attempted capital murder,
Applicant's layman's argument reveals that, in line with his over-
all writ theory, he should have never been charged with attempted
capital murder because this was only an aggravated assualt. The
very fact that the State's indictment contains two counts of agg.
assualt demonstrates the necessity of the objection complained
of herein. It is clear that Applicant was charged and convicted
of attempted cap.murder that was predicated upon the underlying
offense of aggravated assualt; an action that this Honorable
Court in EX Parte Drinkert 821 SW 2d 953,955 stricktly prohibited.
The probative evidence entered in support of the ground demonstra-
tes Applicant's layman's need for raising this errarin combination
with the remaining grounds to demonstrate his cohesive theory of
relief. The Trial Court misconstructs the issue simply because the
indictment contains the Cap.Murder language in Count III.

GROUND TWO: PAGE 3 OF THE FFC¢I.A.O.C. FOR FAILURE TO OBJECT TO
THE ERRONEOUS JURY'CHARGE.(EX-3).

This issue is perhaps the most serious issue in this case!
Verbatim following of the State's FFC amounts to no meaningful
adjudication in this instance. An instance where all agree that
the jury charge is erroneous and unobjected to. The FEC at p.3
contains an implied finding of deficient performance by stating
"This Court finds that prejudice has not been shown in this claim."
The deficient performance here is the attorney's failure to object
toto the legally erroneous jury charge. The state conceds that it
is erroneous in both aspeets raised by the Applicant's application
and supported by law memorandum. This is so now and on direct app-
eal.(See EX-5 at p.10). The State's concession to the erroneous
court'S cha£ge and attornay's failure demand the attorney be all-

owed the opportunity to answer as to why he would fail to object

3

an obviously erroneous jury charge in this instance where the
error goes directly to the mens rea-in a result of conduct case-
when the applicationuparagraph fails to limit the cupable mental
States in that manner. The only element relevant to this case,
because it is a result of conduct case, is INTENT. Had the att-
orney properly objected to this charge, the trial court would have
errer by failing to sustain the objection as a matter of law

or face sure reversal on direct appeal if "any" harm was present.
The State, on direct appeal(EX-S p.11)conceeds that.."Thus the harm
'WAS NOT EGREGIOUS." The only reason Applicant was subjected to the
egregious standard of harm was the LACK OF OBJECTION BY THE TRIAL
ATTORNEY. The some or any harm standard announced in Almanza V St-
ate 686 SW 2d 157,171,clarified in Arline V State 721 SW 2d 348,351
as argued by Attorney Mansur on Direct Appeal at p.10-11 and relied
on my Applicant at p.16-18. At page 18 of the memorandum Applicant
pointed out that "unless all harm is abated, Applicant suffered
Some harm? Miller V State 815 SW 2d582,586 Fn5. The State has con-
ceeded the error and the state has conceeded some harm. Therefore,
the attorney was ineffective for failure to object. As the court
in Banks V State 819 SW 2d at 680 pointed out, it was well settled
law that cupable mental states must be limited in the application
paragraph. In Alvardo V State 704 SW 23 at39, as Applicant thoro-
ughly argues at page 15-16 of his memorandum of law, the Beggs
earlier holding was reaffirmed. See also Attorney Mansur's PDR

at p.6-7. In Alvardo the defendant objected and the case was rev-
ersed on appeal just as it would have been here had the attorney
properly understood the law and objected. In order for this not

to be a demonstration of deficient performance resulting ih pre-
judice to Applicant, the case law relied upon by Appplicant in
this writ application would have to be effectively overruled or
completely overlooked as Applicant opines was the case here at

the triallcourt level who did nothing by follow the State's int-
erpretation of the facts. That following reveals why it is nec-
essary for this Honorable Court to remand this case back to the
trial court for a full and fair hearing. The last paragraph of

the State argument on this issue and the Trial Court's following

Of it, demonstrates Applicant's point above perfectly and is a
4

completele misleading and misstatement of law. In an attempt to
explain away why the attorney would fail to object to the complete

lack of definition concerning knowingly and intentionally in the
abstract paragraph, the Trial Court specifically states .."[b]ut
the application paragraph for the charged offense properly limited
the jury's consideration of the requisite mental States to whetherl
Applicant intentionally or knowingly attempted to cause the death
of the two victims-which necessarily limit the jury's consideration
to the result-of -conduct." This statement cannot be true by any
theory of law absent a failure to object which the State is very
careful to not mention, iffitlcan even trulyibe.said in that con-
text considering that the state has,on many occasions,admitted the
jury charge, including on line five of this same paragraph,--.[f]ai-
led to limit the definition of "intentional" to the result of con
duct-and failed to contain the result of conduct language within
the "knowingly definition... Did the application paragraph limit
the cupable mental states or did)it not? Was the attorney,under
prevailing professional norms,required to object? He was and he did
not! Had he objected, thiscasevnndd have been overturned on direct
appeal becasue some harm resulted according to the State at page

11 of their own response brief(EX-S).

The adversary in these proceedings,the-State, whom the Trial
Court followed verbatim, should not be allowed to speak for this
attorney's deficient performance and cure this obvious harm that
resulted from it. Applicant request,at a mimimumm,that this case
be remanded for a full and fair evidentiary hearing in order to
properly develop this record,otherwise this record absolutely does
not support the Trial Court's FFC, again respectfully.

GROUND THREE: I.A.O.C. FAILURE TO PROPERLY REQUEST A LESSER INC-
. LUDED OFFENSE.

This issue reveals that the Trial Court's FFC are not suppor-
fed §§ the record. The State's interpretation of the evidence is
also erroneous based upon their only reasoning being in opposition
with the holding of The Court of Criminal Appeals.

In the first instance, as the attorney at(R IV 178) states"There
is no evidence whatsoever that that was Nathan Rio's attempt."
This goes specifically to INTENT TO KILL. Secondly, the attorney
himself moved for a directed verdict based on no intent to kill.
The attorney admits at 178 that Applicant fired into the car.
If there was no intent to kil,this was aggravated asualt in which
the attorney admitted himself that Applicant fired at the car.
The victims of this crime testified that no shots were fired at
point blank range while Applicant was only 4 feet or less away.
See page 1 of Applicant's Statement of Facts in his Direct Appeal
R.IV 21-35. lf Applicant intended to kill these people he would
have fired at point blank range. (EX-4 p.4)The Court of Appeals
Opinion, shows a fact that the state left out of its claim that
Applicant pointed a handgun at theavictims and pulling the trigger
after they had all left their vehicle, that fact is no shots were
fired and Applicant never left his vehicle. There is more than a
scintilla of evidence to refute the intent to kill in this case
and find Applicant guilty of only agg.assualt with D/W. The atto-
rney, understanding there was no intent to kill,must must explain
his trial strategy in not requesting the lesser charge after he
admitted Applicant fired at the car.

The case law that this FFC is at odds with is Turner V State
805 SW 2d 423,430 as argued at p. 12 of Applicant's Appellant's
Brief and Applicant's Memorandum of law at p.4,12,22,30- The HOH'
orable Court of Criminal Appeals has explicitedly held..."[t]he mere
intent to pull the trigger pf a firearm will not satisfy the stat-
ute." ld. The State relied upon Applicant pulling the trigger of
a firearm and the attempt to pull the trigger of the firearm at
trial to convict Applicant on the nature of his conduct because
this attorney failed to object to the jury charge. The State and
the Trial Court rely on the same facts that this Honorable Court
has already held do not fulfiH_the statue to pursuadethis Honorable
Court that it does.ixlthisverbatim following of the State's inter-
pretation of the evidence. The State's "voluminous"aclaim of evid-
ence showing that Applicant intended to cause the death of the
victims based his shooting at them, falls woefully short of the

fulfilling of the statute. However, the evidence that Applicant did
fire a gun, being insufficient to fulfill the statute explains

the attorney's belief at(R.IV 12},178).

If shooting at a car, as the State has repeatedly attempted to
claim fulfills the statute of attempted capital murder, even if
there were 20 people in the car, as opposed wmshooting at the
victims in this case at point blank range or pointing a gun at
them but not firing shots, then the holdings in Turner supra are
wrong. Otherwise this was an aggravated assualt and the attorney
was responsible for requesting the lesser charge. Applicant, and
all other parties in this crime werecharged with agg.assualt W/DW
See EX-l. The very fact that the lesser included charges are in-
cluded in the indictment itself, lends credence to Applicant's
position that the charge should have been requested based on the
fact that aggravated assualt and attempted capital murer differ
on the one point legally that this attorney cannot deny does not
exisit, INTENT TO KILL(R.IV 151,178). Once the attorney conceded
Applicant's guilt to a serious felony offense, it was his duty to
request the lesser offense or expect the jury to acquit Applicant
knowing a seriousncrime had occurred.(See p.21-28,emphasis added
of the memorandum).

Furthermore, Applicant challenges the State to produce case
law in support of their position here that pulling the trigger
and pointing a gun constitutes "voluminous"evidence that Appli-A
cant intended to kill anyone, in opposition to this Court's hold-
ings in Turner supra.

Furthermore, because Applicant has produced voluminous case
authority for this claim, and the claim if true would entitle him
to relief, further word from the attorney is necessary to resolve
this claim. Although respected, the State's opinion regarding the
attorney's performance does not constitute the development of the
record necessary to resolve these claims. n

GROUND FOUR: I.A.O;C.FAILURE TO'RAISE THE IHEITRIAL.ATTORNEY'S
FAILURE TO OBJECT TO THE JURY CHARGE ON DIRECT APPEU,

Attorney Mansur staunchly argued that the court‘s charge(EX-S)
was erroneous. See Direct Appeal Brief and PDR Brief. Mr.Mansur
realized the jury charge was unobjected to, See p.10-11 of his
brief and realized the failure to object raised his burden of

proof on appeal from "any" to "egregious and still felt strongly
that the issue deverved reversal on direct appeal and PDR.

7

If this claim was meritorious on appeal under the burden of eg-
regious, then it only follows that attorney Mansur believed that
there was egregious harm which entails "any" Arline V State 721

SW 2d 348,351. lt only follows thattthe reason this harm level

was raised was the result of deficient performance. The likelihood
of reversal on direct appeal, had this attorney raised the I.A.O.C.
claim in conjunction with his claim of egregious error in the jury
charge is certainly past a reasonable probability given how this
attorney felt about the error in this charge.Furthermore,.Mr.Man-
sur's professional explaination for not raising this issue must
come from him and not from the State. Past this, Applicant has
presented case law in support of the attorney raising the I.O.A.C.
claim in conjunction with his egregious harm claim on direct app-
eal in which both were granted.(See Applicant's Memorandum at p.7
and 33).Banks v state 819 sw 2d 676,681.

Very simply, if there was some harm from this erroneous jury
charge, then attorney McDonald was ineffective for failing to ob-
ject to this erroneous jury charge and attorney Mansur was thereby=
ineffective for failing to raise that failure on direct. Either way,
further record development is warranted based on the fact that if
this issue is found true Applicant is entitled to relief.The very

fact deficient performance was found in this issue must beconsidered.
GROUND FIVE: I.A.O.C» The case authority relied upon by Applicant

at p.34 of his memorandum, Barnard V Lane 819 F 2d 798,805 reveals
that raising the failure to request the lesser included offense
is cognizable and warranted in this case on direct review. lt is
completely unreasonable to believe that the State and Trial court
reviewed Applicant's arguments and authority in this writ applica=
tion in only four days or less. The state's reliance on this grond
having no merit is obviously based upon their interpretation of
the evidence being insufficient to show deficient performance for
the trial attorney's failure to request the lesser included off-
ense instruction after he admitted a serious crime was committed
and then stated that therewasdtevidence of intent to kill.(R.IV
p.151,178).$ee also(R.IV 174).

Applicant is left with only the hope that this Honorable

Reviewing Court will perform a meaningful review of Applicant's
arguments and authority to support these claims.

8

CONCLUSION
The issue of the erroneous jury cahrge and the conceded
deficient performance for the attorney's failure to object to it,
are so gremane to the complete theory of habeas relief that App-

licant has presented in this writ application, that serious review

.Of these issues are required. Applicant has been careful to not

place a series of uninvolved and meritless issue before this court.
Theis writ application is worthy of at least the attorney's invol-
ved participation as opposed to the State's interpretation of the
evidence. The _"_;‘~;:1:.1\-: .:'.j::.;.'-»,ni:¢~,§

Applicant has alleged facts that, if true, might entitle him

to relief.Strickland V Washington 466 U.S. 688, Ex Parte Lemke 13

%"$SW 3d-791,795-96. ln these circumstances, additional facts are

needed. As the Court of Criminal Apppeals held in Ex parte Rodriguez
334 SW 3d 294,294, the trial court is the appropriate forum for the
findings of fact. The trial Court should provide Applicant's trial
and appellate attorney with the opportunity to respond to Applicant's

claims of ineffective assistance of counsel.

PRAYER
Applicant respectfully prays that this Honorable Court remand
this case to the trial court and order that these two;attorney§s
be given the opportunity to respond to these claims. Alternatively,
Applicant prays that this Honorable Court grant habeas relief in
all five of these grounds and order the immediate release of the

Applicant or retrial in a reasonable timeframe.

cERTIFIcATE;_@F SERVI'GE

l certify, by my signature below, that a true and correct
eopy of the above and foregoing document was sent to the addresses
listed below on, ,2015, by placing those copies in
the United States ai postage prepaid. The State s copy was sent
certified.

_/

Nat an .1os

1261473

2101 FM 369 N.

lowe Park, TX 76367
Allred Unit

lNMATE.DEGLARATlON

l, Nathan Rios, do hereby swear under the penalty of perjury
that the statements contained within this document are true and
correct to the best of my belief.

Nathan Rios.

Barbara Sucsy, District Clerk
Lubbock_County Courthouse

P.O.Box 10536 (certified)
Lubbock, TX 79408

Mathew D:wBowell

Criminal District Attoenry
P.O.Box 10536

Lubbock, TX 79408-3536

Court of Criminal Appeals of Texas
P.O.Box 12308

Capitol Station

Austin, TX 78711

/O

 

 

 

