j ' 7”1,4@3`02

CAUSE NO.
12-05-05302-CR-(2)

EX PARTE IN THE DISTRICT COURT FOR THE

HOKE HENRY EBERHARDT 2218T. JUDICIAL DISTRICT
l MONTGOMERY COUNTY, TEXA$

APPLICANT ' 3 GBJEchoNS HE©E VED §M

To `HABEAS coURTS REPORT AND FINDING. @GUHTOFCWMINALAP pPEALS

GROUND 0st ` ASSMC@SFE,C!@FK

The Appellant argued that his Attorney was ineffective for not moving
to have the charges dissmissed when the State failed to indict him with a
properly charging instrument in violation of State Statutory Rights.
Article 32.01 and 28.061. See Code Of Criminal Procedure. The State has
Stated that the Appellant argued that he was being held with out being
indicted. This is patently false. The Appellant argued that this was not;
a properly charging instrument because either of the first two indictments,
first one being attempted capital murder on a public servant, and the
Second being crimenal attempt were not properly charging instruments in
violation of due process. The third indictment was untimely in violation
of Saate Statues Procedural Rights Appellant is entitled to. The State
failed to mention the due process violation inwhich the Supreme Courts
talks about limiting the possibility of the accused defence being impaired.
This is exactly the case with the accused. His Attorney was ineffective
for failing to protect his States Statutory Rights 32.01 and 28.061 as
well, and most importantly his due process right that effected his
abillity to put up a affirmative defense being indicted two times before

being charged with a properly charging instrument.

(1)

GROUND TWO:

The State argues that Appellants argument on the admonishment is not
cognizable on 11.07 is not true, under the rule of cognizability an
Appellant must show a jurisdictional defect in the convicting court or
the denial of a fundamental or constitutional right Exparte William 65
S.W. 3rd. at 657. Applicant asserts his plea was not intelligent and
Voluntarily made. Appellant argues that the trial Judges admonishment
of Appellant was incomplete in vidation of Boykin as well as Kniatt v.
State. This incomplete admonishment cannot be presumed from a silent
record, and his claim is cognizable on a 11.07 because it is a denial
of a fundamental constitutional right due process under the 5th Amendment
to the Constitution. Appellant is entitled to a reversal on this ground.

GROUND THREE:

Appellant argues that counsel was in effective for failing to filr
a motion to suppress. That if she had investigated the charges in relation
to the Penal Code she would have found that there was no proof to support
the charge see, Jackson v. Virginia cite as 99 S.CT pg. 2781. Due process
requires that no person be made to suffer the onus of a criminal conviction
except upon sufficient proof. Defined as evidence resonable doubt of the
existence of every element of the offense. U.S.C.A Const. Amend 14.
Appellants attorney was ineffective.for failing to challenge indictment
based on objective record, and the Penal Code.

GROUND FOUR:

What the State is calling impeachment is actually a violation of
Appellants 5th, 6th andl&th Amendments under miranda as well as Art.38.22
Texas Code Of Crimenal Procedure, when statements may be used. A statement
made in language the Accused can read or understand (A) is signed by the
Accused or (B) bears the mark of the Accused if unable to write, and the
mark is witnessed by a person other than a peace officer. In both of the

(2)

lcases cited by the State. Exparte Gardner, 959 S.W. 2d 189, 199 and Soria
v. State they waived their right before talking to a Psychiatrist. This

was not the case with Appellant, who had benn critically injured and was
incapable mentally and physically of waiving his rights. It appears that
.the State is saying that Appellant is just making unwarned custodial
statements. Rather than answering questions from Detective Hill‘s custodial
interrogation which is clearly the case if you listen to the Prosecutor
asking Appellant, due you remember telling the detective that you had the
gun in your hand. In violation of miranda. In any case the Appellant
remembered that the detective was there with a camera, so there should be
and there is a video record of the interrogation in the hospital. This case
cries out for a evidintiary hearing. To prove just what happend in Apellants
Hospital room. The Detective should be subpena and placed under oath and
any videoGevidence should be viewed by the Habeas Court for this most
serious of Constitutional violation. This is not "Staling Russia" but the
State of Texas, home of the Alamo, and the €ourt Of Crimenal Appeals

has a duty to protect it‘s citizens from this type of government overreach.
Appellant is entitled to a evidentiary hearing and a remand and reversal

on this ground.
GROUND FIVE:

The_j%h£é argues that there is no evidence that was used against
.Appellant when Appellant was taken before a Magistrate with in forty-
eight hours of his arrest. In violation of State Statue 15.17. As Appellant
stated Detective Hill, interrogated Appellant in vio®ation of Miranda. Then
the Prosecutor used those statements at trial to prove the elements of their
indictment. So to say there was no evidence that was unlawfully obtained
is false. While the Appellant was critically injured the State, still found
a way to interview him in violation of his fifth, six and fourteen
Amendment rights as well as violating Articles 9 and 10 of the Texas
Constitution. If the State had been as dilligent in taking the Appellant

before a ma istrate as the were in atherin evidence. Even if doin it
g

<3)

§
by some form of electronic communication. The Magistratete could have app~
ointed counsel and ordered a examining trial. Under Article 16.01 it would

have shown that the evidence sas legally insufficent to support a indictment
of Aggravated Assault on a Public Servant. Based on the Penal Code where
it states you have to know it's a officer. Nothing in the objective record
supports this claim. So to say Appellant sufferd no prejudice under
Strickland v. Washington, 466 U.S. 668, 694 [199&] is not true. There is a
very real possibility He would never have been charged with the charges.
At any rate His Attorney was ineffective for failing to protect these
procedural rights the Appellant was entitled to. The S.CT in Williams v.
Taylor 120 S.CT 1495 say where Appellant is denied procedural or sub-
stantual rights in which he is legally entitled. Prejudic is determined
routinely under strickland. Appellants Attorney should have filed a motion
to suppress. And he should be allowed to with draw his guilty plea.

csouND siXL

Appellant complained that his Attorney was ineffective for not asking
for a limiting instruction when the Prosecutor introduced all of the
lnflammatory and Prejudicial statements in violation of Appellants right 7
to due process and a fair trial where evidence was introduced that Appellant
was never convicted of such as hitting Mr. Abe Ester with a 2X4 or assaul-
ting Ms. Allen or keeping her against her will. Nor was he arrested for
these things or even questioned by police.There is nothing in the objective
record that proves that the Defendant committed or was convicted of these:
acts. It Was done simply to prejudice th§ejury. Appellant should have been
given a limiting instruction see Pederson v. State, 237 S.w.3rd 8821_389'
[Tex. crim. Appl. 2007] citing Morrison v. state 845 s.w. 2d 887 [réx.crim.
Appl. 1992] and Rankin v. State 974 S.W. 2d at 712. Appellant councel
was ineffective.

(4)

“`° § enouNn §sEvEN=

   

Appellant has shown from the objective record by§ a propond` w_
evidence that the Appellant is entitled to re1ief. His Attorney s§ineffé‘
ective in ground one when she failed to file a motion to disemiss the ""
charges when the State failed to file a properly charging instrument in
violation of State Statues 32. 01 and 28. 061 as well as the Fi£th §*?
Amendment due §process, trial court set aside, quashes or dismisse
indictment for defect of form or substance. Defendent has been de 1_
Constitutional right to speedy trial and no charging instrument isfproperly
presented. State v. Terrases, 933 S.W. 2d 263[Tex.App. El Paso 1996]§ .
Appellant was entitled to relief on ground one. Second, Couneel was§ine£f-#
active under A. B. A. standards for failing to file a motion to suppress when
Prosecutors argued that Appellant knowingly assaulted officers in violation

§ of Fenal Gode 22. 02 when the objective record does not support this claim.
In violation of Due Process. A fundamental right under U S Constitution §
and thus is cognizable on a 11. 07. “ _

Third, Counsel did not object when the State introduced evid_ _e in§
§zviolation of M iranda, when State was trying to prove the elements ’in the
§ 9indictment of Aggravated Robbery and Assault on a ?ublic Servant?; §

,of His fifth and §S_ixth and §£ourteenth amendment righte. This vio
is even more grievous. In that Appellents Attorney had in her poe‘::
this custodial interrogationbon video tape end viewdd it with the Appellant.
Yet at trial she did not object when this evidence was introduced at trial.

’A violation §of his sixth Amendment right, a fundamental right cognizable

on 11. 07. - .

Four, Counsel was ineffective for failing to file a motion to :euppress
gpin violation ongrticle 15 17 when Appellant was not taken before a Magistrate
until around three weeks after he was arrested. I£ counsel had inj
Appellants case after being appointed she would have discovered‘§ f
ation. She was ineff§ective under the sixth Amendment. "\ “

 

   
 

 

 

   
     

 

   
  

(5)

 

Five, counse§l was ineffective for not asking for limiting instruct ons
and not protecting Appellants rights to a fair trial under the Du_ Process§
clause of the U. S. Constitution. :'§‘

And las§t a the Appellant pointed out the Couyt 0£ Crimenal Appeal has
allready found counsel to be ineffective for not filing notice of appeal
and should do so again. For her numerous Constitutional erro¢s._\`V§

The States report and findings are not fairly supported by the record§
and are contrary to well established State and Federal law as outlined _
in each erguement in this rebuttal Appellant is entitled to a evidentiary .
hearing after which he should be released from cus§tody. ` ‘3

iatec Julz 3l 2015§ § _ By: Hoke HenrydEberhardt_

 

 

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Certificate Of§Service_

I.here by certifylthat_l_mailed a copy_of the_foregoing to the Montgomery
Copnty District Attorneg, 9th Judicial District. 207 W. Phillips§2nd floor
conroe; Texas 7730142324 ~ “~3

I would ask the Clerk to please forward a copy to §the. Attorney General
since Appellant has no way to make copies. Thank You '

  

 

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