Cause No.     04 - 17 - 00722 - CR




 IN THE FOURTH COURT OF APPEALS
     FOR THE STATE OF TEXAS




      IN RE BENJAMIN ELIAS




APPLICATION FOR WRIT OF MANDAMUS




   In Trial Cause No. 427052

            Writ No. 2704
              from the
  Twelfth County Court of Law

    for Bexar County, Texas.




                  ��TA�
                 B� nElias, pro se
                 TDCJ-ID No. 819778
                 0.8. Ellis Unit
                 1697 FM 980
                 Huntsville, Texas 77343.
                        IDENTITY OF PARTIES AND COUNSEL




RELATGR:                   Benjamin Elias

     Counsel:              Pro se


     Mailing Address:      D.B. Ellis Unit

                           1697 FM 980

                           Huntsville, Texas 77343.




RESPONDENT:                Scott Roberts


     Counsel:              Unknoun


     Mailing Address:      Dustice Center

                           300 Dolorosa, 2nd Fl.
                           San Antonio, Texas 78205-3005.




                                     iii.
                                  TABLE OF COMTENTS




IDENTITY OF PARTIES AND COUNSEL                                         iii.

INDEX OF AUTHORITIES                                                      v.


STATEMENT OF CASE                                                          1


STATEMENT OF JURISDICTION                                                  2

ISSUES PRESENTED                                                           2

STATEMENT OF FACTS                                                         3


ARGUMENT                                                                 k-5

PRAYER                                                                     5


CERTIFICATION                                                              6

APPENDIX                                                                7-40

     EXHIBIT 1                                                             8

           Relatar*s Original liirit of Habeas Corpus uith Certified

           Mail Card and Return Receipt                                 9-37

     EXHIBIT 2                                                            38

           Letter of Inquiry to Respondent uiith Certied Mail Card

           and Return Receipt                                          39-40




                                          IV.
                              IMDEX OF AUTHORITIES




Texas Code of Criminal Procedure, Article 11.10      k

Texas Code of Criminal Procedure, Article 11.11      k

Texas Rules of Appellate Procedure, Rule 52          2

Texas Rules of Appellate Procedure, Riile-i52.1      2

Texas Rules of Appellate Procedure, Rule 72.1        2




                                       V.
                                 STATEMENT OF CASE




        On May 16th, 2017, Relator filed an Application for IJrit of Habeas Corpus

with the Twelfth County Court of Law for Bexar County regarding constitutional

violations resulting from a driving while intoxicated prosecution. State v.

Elias, Cause No. k21Q52 (12th Cty Ct., Bexar Cty. Tex., June 13, 201 if). See

Appendix, Exhibit 1, Application for Urit of Habeas Corpus, Procedural History,

pp. 1-2. The Bexar County Clerk received said application and assigned it Urit

No. 2704. The presiding judge has not set a date for hearing or ruled on said

writ.


        Relator is currently confined to the Texas Department of Criminal Justice

Institutional Division at the O.B. Ellis Unit in Walker County, Huntsville,

Texas. He is unlawfully restrained of his liberty as a collateral consequence

to the above-referenced misdemeanor charge and has been since May 2013. At the

time said charge was filed, Relator was on parole for an unrelated case. See

State V. Elias, Cause No. 970D11232, 243rd Judicial District Court of El Peso

County, Texas, final judgment April IB, 2001. As a collateral consequence of

said misdemeanor DDI, he was arrested and confined. Relator is currently

confined due to his subsequent parole revocation.

        Respondent, Honorable Judge Scott Roberts, has not set a date for hearing

nor ruled on said writ. Mr. Roberts is the presiding judge for the Twelfth

County.iCourt of Law for Bexar County, Texas. He was the presiding judge at

Relator's trial and is the current judge for the- Twelfth County Court of Law.

By delaying a hearing, he is in fact prolonging Relator's confinement.
                           STATEMENT OF 3URISDICTIDW




     Pursuant to Texas Rules of Appellate Procedure, Rule 72.1, Relator is

required to file an Application for Leave to File tilrit of Handatnusiin order for

the court of appeals to exercise original jurisdiction. Relator submitted said

application uiith this original petition for urit of mandamus.

     Further, this Application for lilrit of Mandamus complies uith the

stiplulations set forth by Rule 52 of the TRAP regarding form and content.

Rule 52.1, states:




     "An original appellate proceeding sbeking extraordinary relief—^uch as a
     iiirit of habeas corpus, mandamus, prohibition, injunction, or quo uarranto
     is commenced by filing a petition uiith the clerk of the appropriate
     appellate court..."




The Fourth Court of Appeals has original jurisdiction over cases originating in

Bexar County and therefore conferred jurisdiction to rule on this urit of

mandamus.




                                ISSUES PRESENTED




     Respondent's failure to conduct a hearing regarding Relator's uirit of

habeas corpus in a timely fashion.
                               STATEMENT OF FACTS




1) Relator bias convicted of DUI in Respondent's court on June 13th, 201 <f. See

Cause No. 427052, The State v. Ellas, Tuelfth County Court of Laui for Bexar

County, Texas.

2) On July 9th, 2014, the Texas Board of Pardons and Paroles revoked Relator's

parole for an unrelated case as a result of said Dlill conviction. See State v.

Elias, Cause No. 970D11232, 243rd Judicial District Court of El Paso County,

Texas, final judgment, April 18, 2001; Violation Report No. 10775503.

3) Relator filed a direct appeal to the Fourth Court of Appeals. See Cause No.

04-14-00498-CR. Relator's conviction uias affirmed on June 3, 2015.

4) Relator filed a Petition for Discretionary Revieu uiith the Texas Court of

Criminal Appeals. The Court issued an order refusing discretionary revieui on

February 10, 2016. See Elias v. State, PD-0B20-15.

5) Relator submitted his Application for lilrit of Habeas Corpus uiith ithe Bexar

County Clerk on May 16th, 2017. See Appendix, Exhibit 1.

6) Relator submitted a letter of inquiry certified mail, return receipt requested

on July 31, 2017, to Respondent inquiring into the status of his application for

birit of habeas corpus. See Appendix, Exhibit 2.

7) To date. Respondent has not set a date for a hearing on said application, nor

responded to Relator's letter of inquiry.
                                    ARGUMENT




                 RELATOR HAS UIOLATED ARTICLE 11.10 AND 11.11


                   " OF THE TEXAS CODE OF CRIMINAL PROCEDURE


     Respondent is in violation of Article 11.10 of the TCCP for failing to

appoint a time to examine Relator's cause. TCCP, Article 11.10 states:



     "liJhen motion has been made to a judge under the circumstances set
     forth in the preceding Articles, he shall appoint a time when he
     uill examine the cause of the applicant, and issue the urit
     returnable at that time, in the county uhere the offense is charged
     in the indictment or information to have been committed. He shall

     also specify some place in the county uhere he uill hear the motion."



It has been over one hundred and fifty days since the application uas initially

filed uith no reply from Respondent. This prolonged delay compounds hardships

upon Relator and further frustrates the relief sought through habeas corpus

undermining its value as a safeguard against constitutional infringements.

Relator is confined as a result of a parole revocation stemming from a Class B

misdemeanor.


     Additionally, Article 11.11 of the TCCP states:



     "The time so appointed shall be the earliest day uhich the judge
     can devote to hearing the cause of the applicant."



A time has not been appointed nor a hearing devoted to the cause of the Respondent,
     •n July 31, 2017, Respondent uas served a letter of inquiry requesting a

status update regarding Relator's application for uirit of habeas corpus. See

Appendix, Exhibit 2. To date, no response has been filed with Relator regarding

his application for writ of habeas corpus. Ironically, one of the grounds for

relief is a violation of Relator's right to a speedy trial. Here, again.

Respondent fails to take decisive action uihen appropriate or ordered by statute.

Relator languishes in a prison cell needlessly due to this inaction.



                                     PRAYER




     lilherefore, PREMISES CONSIDERED, Relator, Benjamin Elias, pro se,

respectfully requests the Court order Respondent to conduct said hearing

compliant uith statute or that the relief sought in Relator's Application

for Idrit of Habeas Corpus be granted by this honorable Court.



                                       Respectfully,


                                       Benjdffiin Elias, pro se
                                       TDCJ-ID No. 819778
                                       O.B.   Ellis Unit
                                       1697 FM 980
                                       Huntsville, Texas '?73k2.
                                 CERTIFICATION




     I, Benjamin Ellas, Relator, pro se, hereby certify that I have revieuied

the petition and concluded that every factual statement in the petition is

supported by competent evidence included in the appendix or record to the best

of my knouiledge.

     My name is Benjamin Elias, my date of birth is April 3Dth, 1979, and my

inmate identifying number is 819778. I am presently incarcerated in the G.B.

Ellis Unit in hialker County, Huntsville, Texas 77343. I declare under penalty

of perjury that the foregoing is true and correct.

     Executed on this the 31st day October 2017.




                                      Benjamin Elias, pro se.
                                    APPENDIX




EXHIBIT 1


     Relatar's Qriginal lilrit of Habeas Carpus uith Certified Mail Card and

     Return Receipt.




EXHIBIT 2


     Letter of Inquiry to Respondent with Certified Mail Card and Return Receipt,
1   ^




        EXHIBIT 1
                      U5PS nWCKING#




        United States            ' Sender: Please print yourname, address, and 2IP+4® in this box*
        Postal Service
                                                           tlifti                                 V '
                                          W-IC                                                        '

                                                 It'll
                                             lUsv.ilejMU 17:^^3

             7'343~




                                                                   .... cCrtTION ON DEt-IVEBV-
                                                     A Signatu'®
                                                                                   h!            DAg^^t
                                                            ✓      .   /     Y—-



• complete items 1. 2, and 3^^                      Ix t:
• Print your "a'"® ®^ the card to you.
   so that «e can                  tna-lp-ece.
                                                                                  ... halOW-      U
                                                     1
-TWAdd^iSedto:

      lui-ntE                ST STfill
           wwioTExA.                                 ter====|&H&
                         .... iiiiiitiillUlllW                                           °BSlv«v

      "1" 02 2A99 6306948253^__J|gg^^^p,^^^                                               S^-SST
                         —        r:„ ..._nnn-90W
                                            •iSS'
        ft •;.;r.Tti?:^.c! r t i '
                                            2-V                                        VJ
    ft'>5"t';!5l'Dfil'.'e'V fcae •
   r ^'?r.*:' r^ftrj =|S3j''ia~;
                                                                                'piV'
     T-''J :'_s;:i-ji' i Fit-- , S
  C-y S:,r-. ZIP-",
                      s/]M                                                    li'ioj
Certified Mali Provides:
• A mailing receipt
• A uiiiciue idenlilier for your mailpiece
• A record o! delivery kepi by tne Posiai Service lor two years
Imporlanf Reminders:
• Cerlilred Moil mayONLV be combined wilb Firsl-Class Mail-; or Prioniy Mailij
• Cemtiad Mail is nofavailable for any class ol international mait
• MO INSURANCE COVERAGE IS PROVIDED wrlli Certi'ifid                                        Mail   For
   valuables, p'ease consider Insuiea or Regis'erefl Mail
• For an add-tiorral lee. a Reurn Receipt may be reguesred lo provide proof oi
   delivery. ToobtainRetuirr Peceipi service,please completeandaifaC'a Reiurrr
   Receipt IPS Foim 3Si t} lo the artic'e and add applicable postage tocover the
   foe Endorse maiip-ece "Return ReceiptRenuesied" Toreceivea tee v.-aivet tor
   a duplicate teiyn recamt,a USPSo postmarkon your Cenilied Mail receiptis
   reguiied
• For an ardOitiortal fee. delivetv may be restricted lo itie adOtessee or
   adurcssee s auibortjea agent. Advise the clerk or mark the mniipiece with tfie
   endorsement ••ResfrcledOefiver-/'.
• Ifa postrnarkcn the Certified Ma-I teooipi i5 desired. Please prescnr fhs arti
  cle at the post ollice forDostmaiking. Il ;i posimark an the CertilieoMail
   receipt ip not needed, detach and aiii' label wiih postage and mail.
IMPORTANT: Save lltis receipt and (iiesenl il when making an Inquiry.
l>-'i r.-;iii .Ili.to.A-JJI.L! 20-}-i ('rincr5v) OS'J 7SJil-:V.y'i;i.<ia-f'
                                             270 4                           aLilKBsi^ca
                            Cause No.: Nt^^eT'^^^ed                 ^DIT JIAY lb P 4' 2b
Ex parts                                 §     THE COUNTY COURT OF LAU
                                         §
     Banjarain Ellas                     §     OF BEXAR COUNTY, TEXAS ^
                                         §
                                         § IZ"""" 3UDICIAL DISTRICT


                       APPLICATION FOR liiRIT OF HABEAS CORPUS




TO THE HONORABLE JUDGE OF SAID COURT:




     COMES NOW, Banjarain Ellas, [hereinafter referred to as Applicant] pro ae,

in the above-captionad cause and pursuant to Article 11.09 of the Taxas Code of

Criminal Procedure and Article 5, Section 8 of the Texaa Constitution mould

show the Court the folloming:




                                 Procedural History

                                         I.




     Applicant mas charged by information mith driving mh                 <icatad,

alleged to have bean committed in Bexar County, Texas on or n u.          "V-y 2Ath,

2013. Gee Clerk's Record [CR] B-9. Applicant plead not guilty, and a jury found

him guilty of the charged offense. State v. Ellaa, Cause No. A27ijj2 (I2.th Cty
Ct., Bexar Cty., Tex. Juna 13, 201 A); see 3 Reporter's Record [RR] 5; 5 RR A1
and CR 49. The trial court assessed puniahmont of six months' confinement in

jail, a $2,000 fine and court coats of $49?.DO, See CR 49. Applicant filed a

notics of appsal.




                                         -1-
                                      II.




     Applicant filed an appeal with the Fourth Circuit Court of Criminal

Appeals for Texas. See Eliaa v. State, Cause Mo.   Ci-/4-OOV9B-CR. Applicant's

conviction was affirmed on 3une 3, 2ni5. Subsequantly, a Petition for

Discretionary Review was filed with the Texas Court of Criminal Appeals. See

Ellas V. State, PD-082n-1S. The Court issued an order refusing discretionary

review February 10, 2016.



                                 Juraldlctlon


                                     III.




     Applicopt see''.   :ief under this writ in accordance with Article 5, Section

8, of the Texas Constitution and Article 11.09 of the Texas Code of Criminal

Procedure. Article 5, Section B, of the Texas Constitution provides the following:



     "District Court jurisdiction consists of exclusive, appellate and original
     jurisdiction of all actions, proceedings and remadies, except in cases
     where exclusive, appellate, or original jurisdiction may be conferred by
     the Constitution to issue writs necessary to enforce their jurisdiction.
     The District Court shall have appellate jurisdiction and general
     supervisory control over the County Commissioner's Court, with such
     exceptions and under such regulations as may be prescribed by law."
     (Emphasis added).



Similarly, Article 11.09 of the Texas Code of Criminal Procedure provides in

part that:




     "If a person is confined on a charge of misdemeanor, he may apply to the
     county judge of the county in which the misdemeanor is charged to have

                                      -2-
    been cemmitted, or if there be no county judge in said county, than to
     the county judge uhose residence ia nearest to the courthouse of the county
     in ujhich the applicant is held in custody."



                                      IV.




     Applicant is unlawfully restrained of his liberty as a collateral consequence

of the above-referenced misdemeanor charge, thus making §11.09 of the TCCP

applicable to his case. See State v. Callazo, 264 5.LI.3d 121 (App. 1 Dist. 2007),
rehearing overruled, petition stricken 200(1 UL 2223903, petition for discretionary

revieuj refused. At the time of said charge. Applicant was on parole for an
                                                                  rd
unrelated charge. Sea State v. Ellas, Cause ^]o. 970D11232, 243        Judicial

District Court of El Peso County, Texas, final judgment April 12, 2001. As a

collateral consequence of his arrest for this misdemeanor charge, his parole

was revoked. He is currently confined to'.the Texas Department of Criminal Justice-

Institutional Division due to this parole revocation.




                            Argument and Authority

                     V. Inaffective Aaeietance of Counsel



     Applicant's first assertion for relief is ineffective assistance of counsel
pursuant to the Sixth and Fourteenth Amandmanta of the United States Conatitution
and Article I, Section 10 of the Texas Conatitutton.

     To establish ineffective assistance of counsel, an applicant must show that

defense counsel's assistance "fell below an objective standard of reasonableness"

and thereby prejudiced applicant's defense. Strickland v. Washington, 466 U.S.

66H, 687-BB (1984); accord Thompson v. State, 9 5.''i.3d GOB, 21? (Tex.Crim.App.
                                      -3-
1999). To make this showing, tha applicant must prov€ that dafense counsel's

parformanca uas (1) daficiant, and (2) that tha deficient performance prejudiced

the applicant, Strickland, 466 U.S. at 607; Thompson, 9 S.l)).3d at 012.

     A claim of ineffective assistance of counsel "must be firmly founded in the

record" and the claim is rsvieued against "a strong prosumption that counsel's

conduct fell within the wide range of reasonable professional assistance."

Thompson, 9 5.lJ.3d at fl13. To do so, tha record must affirmatively demonstrate

the alleged ineffectiveness." Id.

     To establish prejudice, the applicant mu3(- .show that there is a reasonable
probability {Kat hut for defense counsel's unprofessional error, the outcome of

the trial woulri i.vs been different. Hernandez u. State, 726 S.bJ.2d 53, 55 (Tex.

Grim. App. 19fi6)(9U   7 Strickland, 466 U.S. at 694). A reasonijble probability
in this context, ms-   bat there is sufficient probability "to undermine

confidence in th-i outcome" of the trial. Id. (quoting Strickland, 466 U.S. at

694). Applicant presents three areas where trial counsel uas ineffective. Trial
counsel was invited to respond to each allegation. See Exhibit A.



     A. Fai.lurs to conduct an indapendent investigation.



     Applicant's trial counsal, Mr. Antonio Simenez III, failed to conduct an

adequate pretrial investigation, thus failing to subject the proaecution's case
to meaningful adversarial testing, "It is fundamental that an attorney must

have a firm command of the facts of the case as well as the law before he can

render rsaaonably effective asaistance of counsel...A natural consequence of

this notion is that counsel also has a rnaponaiLility to seek out and interview
                                      -4-
potential uitnesses and failure to do sc is to be ineffective, if not incompetent,
                       r



uihere the result is that any viable defense available to the accused is not
advanced." Ex parta Lilly, 656 S.U.2d L9n, L93; 1903 Tex.Crim.App.LEXIS 1155;

see also Compton v. State, 202 S.lil.3d 416, 419 (Tex.App.—Tyler 2Q06). Specifically,

counsel failed to conduct an investigation in order to subject the prosecution's

case to meaningful adversarial testing. When the foundation of the prosecution's

case is based upon circumstantial evidence, rebuttal evidence and exposing

discrepancies in "cover officer's" testimony are paramount to staging any viable

defense. Mr, Jimenez's ineffectiveness falls into three broad categories; failure

to subject circumstantial evidence to meaningful cross-examination, failure to
introduce evidence and providing erroneous legal advice.

     In order to secure a conviction for driving uhile intoxicated, the prosecution

must prove six elements of the charge: (1) a parson; (2) is intoxicated; (3) at
the time of; (4) opsrating; (S) a motor vehicle; (6) in a public place. Bee UTCA,

Penal Code &49.D4(8); Chaloupka v. State, 20 S.IJ.3d 172, pet. for discretionary
reviauj refused (Tex.App.—Waco 1999). Instejid of establishing each element of
the charge, the prosecution has utilized circumstantial evidence and shoddy

testimony to supoort its cuoe. Mindful that circumstantial evidence can be used
to support a conviction, it is not carte blanche to forego empirical evidence
or tha lack thereof. See Kuciemba v. State, 310 S.U.3d 460 (necessitating a

temporal link hetueen the time of the accident and arrival of the officers at
the scene). Beyond circumstantial evidence, the prosecution never established

Applicant exercised control over or operated the motor vehicle. The prosecution,
instead, utilizes suspect testimony upon which to base its case-in-chief.


                                      -5-
     Specifically, officers guesstimate the time of the accident. Officer

Floras, one of the last officers to arrive at the scene submitted the crash

raport and presented the following testimony upon cross-examination by Mr.

Oimenez:




     Q: (By Mr. Oimenez) Officer, do you know when the aec-idant actually
           occurred?


     A: As far as like, the exact   time?

     Q: Time sequence.

     A; The time I put on my report was 3:32, so I will probably say you'<i —
        probably a few minutes before that—

     Q: All right.

     A:    3:30.




See 3 RR 35. Officer Floras was unsure of the time of the accident as he did not

witness i t occur.


     Maxt, Officer Gary Mel, the first officer on the scene testifies to not

having seen that accident occur either. Upon examination bv iirate prosecutor

Matthew Ludowig, Hr. Nel stated the following:



     Q: Okay. Now, this is important. Now. Officer Mel, did you physically see
        the defendant driving his vehicle?

     A: No, I did not.



See 3 RR 45-45. Officer Mel did not witness the accident nor could he provide

an accurate time outsids of spaculation. Speculation which "Conveniently"'

supports the prosecution's alleged sequence of events.



                                      -6-
     A review of "Calls for Service" to the San Antonio Police Department that

night point a different picturs. See Exhibit S. Thi accident uias first reported

at 2:u?am—over an hour before officers "h-ppaned to rtll up."

     The odds of a San Antonio police officer coinoidentally "rolling up" on

the scene of an accident immediately after it happened are highly improbable.

In fact, ths sequence of events praposad by the prosecution is inaccurate. Their

case posits just enough fabricated circumstantial links to string together a

conviction. The sheer area patrolled by a single officer each night belies

this convenient coincidence. Common sense asida the "Calls for Servica" that

night contradict the clsim made by Cfficer Nel.

     Had an independent investigation been conducted by counsel for the defense,

the "["=11:5 fcr SGrvice" rtjcord would have been discovered bsforu trial snd

available as rebuttal nvidence casting a formidable shadow Upon the officer's

credibility and the prosecution's case. Instead, Mr. 3imenez went into trial

ill-prepared to defend or defeat the prosecution's argument for circumstantial

evidence. Each subsequent ground is effected to some degree by prstrial

preparation or lack thoreof.

     The third axampls regarding erroneous legal advice wji:     ? expounded upon

in subsection C.




     B. Failure to pursue pretrial motions.



     Applicant was denied the effactiva assistance of counsel because trial

counsel failed to pursue a pre-trial motion to suppress evidence resulting from

his unlawful arrest. See CR 30-33. Applicant's DWI arrest was a direct result

of his conversation with officers before the reading of his Miranda rights.

Additionally, officer's suspicion that Applicant was intoxicated was in error

                                      -7-
due to the circumstances surrounding the scene of the crash. Thuc, the intoxylizer

results should also be excluded from the record.

     To show that counsel was ineffective for failing to pursue the motion to

suppress evidence, Applicant must prove that tha trial court uiould have granted

the motion. Jackson v. State, 973 S.W.2d ?5t, 957 (Tex.Crim.App. 199S); ^^e

Roberaon v. Stato, 852 S.l!.2d 590, 510-12 (Tex.Orim.App. 1993)(unlesn there is

n sho'ijing that a pretrial motion had merit and that a ruling on tha motion

would have changed the outcome of the case, counsel will not be ineffective for

failing to assert the motion). In other words, Appellant mdet defeat the presumption

of proper police conduct. Jackaon, 973 S.li.pd at 957. As will be shown, affective

counsel would h ' . -. .'efeated that presumption by showing that tha arrest based

on field sobriaty          at the scene of the accident was unrcasohabla and made

• 3 a result of tha   '   L-or's testimony interpreting shock and confusion as

evidence of intoxication.

     The reviewing court may consider only the information actually known by

or available to the officer at the inception of the atop. State v. Duran, 355

S.ld.3d 563, 569 (Tex.Crim.App. 2013). Information that the officer acquired or

noticed after a detention or arrest cannot be considered.-id. (citing Amorea

V. State, 816 S.l)].2d if07, 'tis (Tex.Crim.App. 1991)("In reviewing a warrantless

arrest to determine the existence of probable cause, we look to the facts known

to the officers at the time of arrest; subsequently discovered facts or later-

acquired knowledge, like the fruits of a search, cannot retrospectively serve

to bolster probable cause at the time of arrest.")). This is because "[a]

determination is either good or bad at the moment it starts." Duran, at 569.

Thus, the onboard, camera footage and intoxylizer results should not be considared.

                                         -8-
     Furth'srmars, th=: admission of the ooboard, camera footaga undermines

Applicant's Fifth Amendment right against aelf-incrimination. He uas not

Mirandirud until after arrest and placemant'ln handcuffs. 4 RR 12. Any statamants

prior to tha reading of the Miranda rights ara not admissible. Mr. Jimenez

confuses the sequence of events and dascribas this dialogue as voiunxarv/.

4 RR 4r. This was noc tha case, though, and Applicant uss not admanishad of

his rights to have voluntarily uaived them. By officer's testimony, their main

purpose that night uas to look for "evidence of intoxication." 4          (30. Consequently,

the arresting officers' overriding objective uculd cause them to compromise

legal safeguards. As a secondary safeguard, counsel for defense had opportunities

to protest the:- vljlations, but failed tc do so.

     A pratrial r j .     to suppress is a specialized objection to the admissibility

of tha design^jtad c    •. - ^ ice which may be, but is not required to be resolved

prior to trial. Tax. Code Crim. Proc. Ann. art. 20.01 (Msst .?UOn)j Black v.

State, 352 S.!J.3d £26, 633 (Tex.Crim.App. 2ni 2): Gutierrez v. State, 327 S.iJ.3d

257, 261 (Tex.App.—San Antonio 201G, no pet.). The trial court's pretrial

ruling on such a motion to suppress is interlocutory and equally subject to

reconsideration and revision during trial as any other ruling on the admissibility

of evidencQ under Rule 104 of the Texae Rules of Evidence. Tax.R.Evid. 104;

Black, 362 5.LI.3d at £33 (noting court may revisit a ruling under Rule 104 at

its discretion, at any time, during the course of tha trial); Gutierrez, 327

S.L).3d at 251. Thus, dafenee counsel could have urged his motion to suppress

during trial, but no mention occurred in the recoro regarding it. It appears

counsel uas litigating the circumstances surrounding Applicant's arrest, but

did not give the trial court a vehicle to rule on this evidence. "There is no

                                          -9-
logical reason or rosaonabla strstogy rot counsel's failure to object" to

cuc"tioo2ble evidence that was the basis for the prosecution'e case. See

Manefisld v. State, ?G3 S.lji.3d GSI (Tex.r::iir., S; ; . TGI?).

      To establish his inaffactive assistance claim, Coplicsnt must show that

the triel court .jio'jld have granted a pretrial motion to suporass. Jackson, 973

S.'j!.2a at ;57. usoaust hu ha:, ahouu thnt the -irrnat rrs -dthout probobls cause,

based on the officer's subjective belief that Applicant's behavior was s result

of intoxication when the officer admittod that those same behaviors were consistent

with non-intoxiceted behavior. Applicant ha? categorically defeated the presumption

of proper police conduct rsnd shown that e pretrial motion to suppress had

merit. Id. Moreover, a ruling on that mobion 'uould have changed the outcome of

the case. This was a prrrecutinn for D'H; s31 of the tsstimony nrd evidence

used to establish the intoxicatinn element of the offense uno a direct product

•f   the initial arrest. Uithout evidance obtained from the arrest, the Stcte

would not have secured its conviction.

      Certainly, the outcoms of the trial would have been different had trial
counsel pursued the pretriel motion to suppress evidence.            ' bocauss the

pretrial rnotian would hcvc dstcrriined the outcnme of the              jii Applicant's
favor, there can be no strategic roasona for failing to pur;.:.

       A^iditionally, trial counsel failed'to pursue a Motion for t.pesdy TrjaL.
See Section No. UII.




       C. Failure to command facts of caaa of J'P/'fCprjdtfi-'y    advise client.


       In a vain related to ground A, trial counsel failed to command facts

relevant to his client's case or advise him appropriately. More specifically,
                                         -10-
the Friday before trial, Mr. Jimenez informed Applicant that the State made an

offer for time served in exchange for a plea of guilty in person at the Dexar

County Adult Detention Center. Ha further recommsnded that Applicant accept

the plea agreement since ha could be sentenced to upuards of two years'

confinement. Counsel's advice was a flagrant misreprssentation of applicable,

statutory Ism, Ths above-reteranced class B misdemeanor carries a statutory,
maximum sentence of" one-hundred and eighty (1BD) oays' confinement in tha

county jail. See Vernon's Texae Penal Code §§A-9.QA-(b) and 12.22(2). "Counsel's

representation mas beiou en objective standard of reasonableness. There is no

evidence of hie consulting the statute." sea Ex parts Battle, 817 H.bl.Sd 81,

8'^. Said advicn r fleets a failure of trial counsel to prepare for trial and

command a firm g-"-       "the facts of the case as uell as ths law. See Diaz v.

State, 905            j   307 (Tex.App.—Corpus Christi 1995). Pecuniary interests

may have influenced Mr. Jimenez's judgmsnt.

      Initially, Mr. Jimenez mas paid a tyo-thousand five hundred (2,500)

dollar retainer fee with a verbal agreement for further payment dependant upon

the course of the case. Unfortunately, Applicant mas arrested the folloiiiing day

and unable tci make further payments. Mr. Jimenez uas asked by Applicant to

uithdr^w from his case if payment, or lack thereof, created conflict. Trial

counsel did not mithdraui and contacted Applicant's elderly parents requesting

payment. Mr. Jimenez mas not compenHuted beyond ths initial retainer fee for

his sarvicBs. Thus, decisions not to prepare, nor appropriately advise his

client mas not a "'strategic' decision, it mas an economic one." See Ex parte

Brigge, 137 fi.W.Jd A5H, HG7(Tex.Crj.m.App. 2005). Mr. Jlmsnaz manted to avoid a

trial for mhich ha mould not taa compensated. He has gone to ths extent of

misrepresBnting statutory law to do so.

                                       -11-
      D. Failure to advocate on Applicant's behalf undermining the adversarial

      prucese.




      Trial counssl'a acLions bsfors, during ancj aftar trini roflsct an

abandonment of the adversarial procass canatitutincj a denial uf due prticeus.

"L'han one nida i;i unuililnt) ir Ulil-keiv to advocacc cm hs.half of hie client

thsrs i& no reason to expect the other side to bs willing to rariucs uhatever

adversarial advantage it may already have. Hencs uithout effort on the part

of the appellant's attorney to sack pcssihle flows in the State's case, the

prosecutor uould not be oersueded to seek less than the asking pries, which in

most Cases exceeds t!ia actual value of the cauu." ciec Mitchell v. State, 762

       '"16, 'jZh (Tex.Apt'.—'an Antonio 1969). l>o dencnstrntao by ouhsucction 6,

trial counsel failed to pursue several pretrial motions that poasossod the

putantial to change tije outcoms of ths trial. The CSSQ against Applicant

consistod of four witnesses for the prosecution versus ahsDlutely none for the

dafenau. The prosecution uubniittcjd three exhibits into the record iiiithoiit a

single objection from counsel for the derense. See A RR           and 7v.
      Two specific instance? reflect abnndonment of duty           -. li. One, during
nis testimony, Officer Mel interjected the tlamaging charactemlion that
Applicant had a very arrogant stance abcct himoslf, to which iir. Dimsnez did
not object, 3 RR 57. The interjection of this subjective speculation cast a
negative light upon Applicant's character before the jury. Defense counsel
allowed thw prosecution, through its witnesses, to lanei Applicant creating a
backdrop for framing the jury's attitude towards this case. Once emocionally
charged connotations are attached to the proceedings, legal standards are
                                       -12-
replacsd by s;iiotj.an£il onsa. Tha C3n'te>;t uf ths trial is shiftad frDm oriB based

apan the lau ta ana based upan stations. MeedlSoS to say, aubjsctive

charactsrizations mur.t be res trained to cantext and not ailowad to parmsats the

trial procsedintjs uhich happened in this case.

       Sacandly, nfficsr Bandela testifiad that Applicant was not Mira.idizsd

until r.rz-t- lie was planed in ir^ndn'.if fs and cndar vvrt-Gt. V RR 12, Ti'Jc, any

vidsn ruafcaga or dialogue UAth officer's bnfore th'.:t point (usiiicn is tn..'

r.iEjority of the i/idsu) is inadmissible before the jury. This footage in the
singl'2 most damaging evidance introducad liy tha prosacution. Its admission

constitutes a violation of Applicant's Fifth Amendment rignt against salr-

incriiiiination.


      Instead of           ting aupprasaion, fir. dinanez abfuscates the time tha

Miranda rights wert - ;:i. Despite, testimony stating that the Miranda righti-.

utru rand after thn colloquy bntujean Applicant and officoro, Mr. Jimenez

argiias for its incorporation into the recnrr) aa a "Volj.ntary" admission. ^ RR

    In a striking role revarsal, defense counsel ceases to be an advocate for

the defense and joins forces with the prosecution. Thsrs cannot possibly be

any strategic reason for couns.nl's action.

      [•lith   no adversarial challenge by defanae, thore is no rBSSonable

Expetation for the prosecution to check itsslf. In the procaas, evidence to

the contrary is glossed over and unCDnstitutional methods irnplementied to secure

s conviction. "If counnsl fails to subject the prosecution's caso to meaningful

adversarial testing, than there has been a denial of Sixth Amendment rights

that makes the adversary process itself prsBumptively unreliablK." See Mitchell,
n. 1 at 32't (quoting United States u* Cronic, kftG U.S. at 652,           S.Ct. at

                                         -13-
2407). Thun, the tricl rifiultt art not raliabie duo to a iirsak ciauin in tha

advnrsf.rial procssa.




                           UI. Diaproportionatf! puniahmsnt.



       "ppX:.aant has hn:!."\           to orue]. and unusiioj. p-iniDhmant in the

far-n of dsliborate indiffsrancs and dispraportionata puniahmant undar tha Eighth

and Fourteenth AtnendmentB to tha United Ststfcil Constitution. Specifically,

pretrial detention for three huncrr.d ani eljhty (300) days as a result of a

class 3 misdemeanor aualting trial constitutes punishment disproportionate to

the statutcrily, mandated myximum punishment. Oee Texas Penal Code §§49.Q4{b)

and 1 ?.?.2{2) (punishment fui' drivin'; •.ihil;': i.nt3xiOGtnrl, nla? . j nlsdrmaanci, sot

at confinsiiiunt in tnn county jail not to exceed one nundrari and Eighty days).

      Applicant was chargad uith the class 3 iiiisdestnnanor, driving uhile

intoxicated on May 24th, 2012. That day, ho uas released on Pond. On May 2;5th,

he uias arrested on a pra-rcuocation uarrant issued ny the Texas Deparliiiant uf

Crrminai Ousticn—Pardons and Paroles Division [Parole Div            .un]. 3aj.d warrant

preclj.lad hand. As a result, Applicant jould rernain incar              ' until the

resolution </f .the driving uihile intcxicatsd charge. He c o n t a c . S c o t t

Roberts raquosting a trial since the Parole Division rafusad to lift tha

pra-ravncatiuii warrant until his cast* tj-ns ndindicated. Alternativaly. Applicant

contacted the Parole Division requsating the warrant be lifted sines tha Court

iijoul:! not nchadiile hi« trial for another £-Jvr.': al nonth-j. K!eirher the tx'ral

judge, nor the Parola Division provided Applicant with any rexi«r.




                                           -14.
     The Eighth Amendmsnt'a proacription against "cruel and unusual"
punishment includes dispropartionats punishment. Punishment for a class B
misdemeanor is explicitly defined as a period of confinement in the county
jail "not to exceed one-hundred and eighty (130) days."-id. Applicant served
the maximum statutory punishment tuice over, plus twenty days..He was confined
for three hundred and eighty (380) days BEFORE adjudication of this case. This
is clearly an abrogation of his Eighth Amendment rights.
      "When faced with such a categorical challenge, the judiciary, in determining
whether the punishment at. issue is grossly disproportionate to the offense, must
consider; (1) whether thera is a national consensus against imposing the
punishment for the offense; (2) the moral culpability of the offender's at
issue in light of their crimes and characteristics; (3) the severity of the
punishment; and (A) whether the punishment serves legitimate penological goals."
Msadoux V. State, 325 S.l>J.3d 189, 19A (Tex.Grim.App. 2010). The best evidence
of a national consensus with respect to the appropriateness of a particular
punishment for a particular offense is the legislation enacted by the nation's
legislature.-id. In this specific instance, legislation set the appropriate
punishment at a term of confinement in the county jail, not to exceed one hundred
and eighty days," Bee Tex. Pen. Code §12.22(2).


                         UXI. Violation of dua process.



       Applicant's due process rights uers contravened by punishment prior to
 trial. "A ctetainae may not be punished prior to an adjudication of guilt in
 accordance with due process of law." Ball v. bJolfiah, 99 S.Ct. 1361 , 1396 (197,).
                                       -15-
Applicant petitioned the Parole Division and Court requesting the pre-revocation
warrant be lifted or the misdemeanor adjudicatfid, respectively. Neither party

provided Applicant with relief. This inaction serves as a warning to others who

may consider exercising fundamental constitutional rights to proceed with

caution.


      "The inevitable effect of any such provision is, of course, to discourage

assertion of the Fifth Amendment right not to plead guilty and to deter exercise

of the Sixth Amendment right to demand a jury trial. If the provision had no

other purpose or effect than to chill the assertion of constitutional rights

by penalizing those who choose to exercise them, then it would be patently

unconstitutional." Gregg v. Georgia, i»2fi U.S. 15.1, 193, 96 S.Ct. 2909, 2935 (1976)

Applicant exercised hie Fifth and Sixth Amendment rights and has been penalized

for doing so. "A person on parole for one crime who is arrestad for a second

crime cannot be punished for the commission of the second crime until he is

found guilty of the commission of the second crime." Hamilton v, Lynns, 7A
F.3d 99, 104. The extended imposition of a blue warrant precluding bond has

unequivocQbly punished and discouraged the exercise of fundamental rights

without legitimate counterbalancing penological goals, punishtfiQ Applicant

PRIOR to trial. There is no way around the injury to Applicant due to disregard

for constitutional tenets.




                         UIII. Spaedy trial violation.



      Applicant has been denied his Sixth and Fourteenth Amendment right to a

speedy trial. The Sixth Amendment to the United States Constitution, as extended
                                       -16-
to the states through the Fourteenth Amendment, guarantees the criminally

accused the right to a speedy trial. See State v. Rangel, 980 S.U.Zd SAO, 943

(Tex.App.—San Antonio 1990). Similarly, the Texas Constitution guarantees the
right to a speedy trial. Tax.Const.art. I, §10."-id. Applicant spent fourteen

(14) months' in the Bexar County Adult Detention Center before his misdemeanor

trial. Paradoxically, the misdemeanor pending against him carried a maximum,

statutory punishment of six (fa) months' confinement in the county jail. See

Settrom U and UI; see also Texas Penal Code §§49.D4(b) and 12.22(2).

      The reviewing court must balance four factors when analyzing the grant

or denial of a speedy trial claim. "The factors are: (1) length of the delay;

(2) reason for the delay; (3) assertion of the right; and (4) prejudice to the

accused." Stock v. State, 214 S.lil.3d 761, 764 (Tex.App.-Austin 2007)(quoting

Barker v. Uingo, 4Q7 U.S. 514, 53D, 92 S.Ct. 2182, 33 L.Ed,2d 101 (1972)).

      In this casa, the delay was fourteen (14) months. Applicant understood

the delay to be due to a crowded docket, in part. "Upon a finding that a

presumptively prejudicial delay has occurred, the State bears the initial

burden of justifying the delay." Rangel, at 843. The primary burden is on the

State and the trial courts to ensure that defendants are afforded their right

to a speedy trial. See CR 1D-12, Ground I or Section U. Counsel for defense

failed to pursue these motions. The final factor, or prejudice, is inherent

with continued pretrial detention. All four factors are met by Applicant's

causa for relief. Relief under this ground calls for reversal of the above

referenced cause and dismissal with prejudice. See Stock; see also State v.

Guerrero, 110 S.W.3d 155 (Tex.App.—San Antonio 2003).




                                     -17-
                                     Prayer




      Uherafore, PREMISES CONSIDERED, Applicant reapectfully prays that this

hcnorabia Court set asids the final judgment and sentence in the abovB-referencBd

cause and order the conviction for Cause No. kZlZ\52 void and null. Applicant

also prays for any other relief that this Court defints equitable and necessary.



                                       Respectfully,

                                              C
                                       Beni^l Elias
                                       Benj^in
                                       TDCI-ID No. 819778
                                       Q.B.Ellis Unit
                                       1697 FH 9BQ
                                       Huntsville, Texas 773A.3.



                             CERTIFICATE OF SERVICE




I, Benjamin Elias, Applicant, pro ae, hereby certify that a true and correct
COPY o"'' "the foregoing Applicant's Application for Writ of Habeas Corpus, has
been foruarded to the District Attorney of Bexar County, Criminal Justice

Center, 101 U. Nueva, San Antonio, Texas 73207 via United States Postal Service,
first-class mail, postage prepaid.

      Executed on this the IQtK day of Hay 2D17.



                                       Benjamin Elias, pro3b




                                      —1B—
                                   APPENDIX




1) EXHIBIT A

     Letter dated April 28, 2D17 to Mr. Oimanez for adaptive admissions (3 pages)




2) EXHIBIT B

    Calls for Service to the San Antonio Police Department for May ZA-th, 2013

     (3 pages)




                                    -19-
exhibit a




  -2P-
April 28. 2017
Mr. Antonio 3imenez III
Attorney and Counselor at Law
2^k Didyar, fruibe 315
San Antonio, Texas 7B2D4
State liar fio.   1D566Pnn.




RE: T!ia S"l.3t"    Tny??" v.           tlia.-; Crtnoa lla, ?r27C5l-.'; iGth County Court
    of Law, ijfiv.ar County, Tsxaa.



DEAK mi:. CIMENEZ:




     Moiio.   riie reason for tnis letter is to foriflslly invite you to respond to

claims aoaitad in a writ uf haaoiis corous, please take the time to rsvieu the

foliowiny latt.-ir Oiiu re a pond appropriately,

     (.In March 2Gth,         DeujaF.in Eiias retained your prafassionial assistance

in the ohovs styled cause anc parole prooaQdings uith the poymsrit of a tuenty-

fivD hUruired {ZjSiiiJ) 'Jollar rfitarricr fee. hU liacl a cl.iss '? misdar.ieanor tor

driving uni.!..j int.oxit:nt;ii;l (uliii) crsrya pending and parola issues for .an

unreierad uhgr^i::.

     f.in March f.jtl'i, ilr. cliaa wiaa arrostar, on a iire-revucation warrant and
C(3nfini;:J to the Baxar Ceurjty A.duJ.t Detention [.enter where ha would reMu.in until

the adjudication of this casa. Un juns lA-th-13th, 2u1A, a jury trial wo:-

coniiuctae. Tiiu jury lound hi"; c-u-lny nf uKo charge tnd the judge ^epr.cinceci him
to six nonths' confinaiuBnt and a tuo-thuuaand (2,CUD) dollar fine, jurigment

aatisfieo.


     Direct appeal was Made to the Fourth uciuri ar .nppaois vor Faxas. fhe eele
ground for relief was ineffectivs assistance of counae.!. Due to an "undardevelopsd
record," the appellate court affirmed the trlBl c.iurt'fi rleclsion. A patiLion Fa.r
                                           -1-
discretionary revisij ujas aubnaoLiinni-Jy filec with thtj Court of Criminal Appaals

and refused. Noui, a urit of habeas carpus has been prepared and is ready for

aubmissinn. The majority of the grounds listed in that writ refer to your

pgrfornisr.cs before, and at trial. Please rsvieu the folloiiiing questions and

raspcin:; t-n      in turn:




      1 . t'Jhat t-jris yo'.ir r'-oson for rot C'^niluciing on inbepandent investigation
          of the prosecutior s case?


      2. Hh~t uan vnur rnason for net withurawiny ['rom this case uihen asked
          to do 80 by your client due to inattention?


      3. Ii'hst ir VDi £ rr:ag'.;n fnr iufusiny "to surrsndor Mr. Elies' client file?


      4. liinat was your reason for filing a pre-trial motion tc suopress and
          not obtaininn, a rulinr, upon 5.I.?


      5. tihaa was your strategy in having your client ait in the county jail
          for nvar s year on a charge that uerri?"', 3 maximum punishment of
          six months?



      6. Iilhat uiSo your reason for not atlvuca h.'.ng a ir.oTian far speedy Uciai?


      7. What was your reason for nor having command of the statutes qnverning
          ycur r.-Uerit's cnro?


      3. What was your reason for advising Mi'. Elias that he could be sentenced
          for upuiards of two years' cmfinentent for a class B misdemaanar when,
          by statute, the maximum punishment is six months' confinement?

      9. What UBS your ntrntagy in not abjrv.tinij r.i •-ntnps5?'3 ns'ssti've
          chsracterization of your client?



      10. What Mas 'your "tratagy uilien 'jrouini: in i'L'jDi' of tne inciusinri of
            dash camera video footage instead of against it?

                                           -2-
      11. What UBS your strategy iti not pi>?P«ri.nn for trial nor subjecting
            the prcsscution's case to apprupriatt: advsraarxai ujo iiig


Mr.              you are not obligateti to veshu:;J t. .-us la.t.::. Iv y^-u choose not
to re.-one, -t u.iU be presuneti that you hau no reason ur trial etretegy foi
ennaging in thi? actitin:; rin.-ii-jrj.i'cij .• rv.'v- •
       Further, tria                                         -"lalulao
Ilanaa, Ccrp.. pursuant to Taxaa Rulaa nf Evldanca. BM (e)(2)C®).
                                  •1   J..—       F—nin i-hr' O-^+e nf triLf iliailiny , out /Oli a.'.a
he subrr.itted in sevar cpl^nHuv ^r.yir rrnn i,p - . .
ualcomsd to respond ercer this time if need ma.
       Thnnv /on ir :                  fnr yont            '.nt', con-siter^tion ..if thu- ^neU^r.

                                                       r.'-i.-'e'; tfully,

                                                             c:
                                                       BBn^amin Elias
                                                       TncC?-!?* '<0. bl:''V73
                                                       O.B. Ellis Unit
                                                                FM 931}
                                                           Huntsvills, Texas llZWi,



                                         nPHTlFICATE OF SERV/ICE




  I, BBnlamln Ellas, heraby cattlfv that atrua and carract copy of tha ahnva
  raquast far adcptlya adaiaslona has baan aubmittad tn hr. Antonio 31manaz HI.
  B1A Dpyar. duita 315. Ban Antonio. Ta«a, 7BBGA yla Unltad Stataa Postal Saryioa.
  first oiasa aall. oartiflad, raturn-reoaipt rapuastad on this tha IBth day of
  April 2B17. Return Rocelpt Raquestad No. 701 a1710 0000 AOfiO

                                                            Benj'ftmin Elias

                                                       -3-
EXHIBIT B
                                                                                                                                                       Select Language   T




                                                   (http://www.sananlonlo.90v1'Home.aspx)


                                                                        CYOim GOVEgEMT ) (G^UQHiljECTED^
;AN ANTONIO POLICEDEPARTMENT
o.GovHomo (/) > SAPD (hllp/Avww.$ananlonio.gov/SAPD.aspx) > Calls (or Service (hllp-/Avww.Bonanlonio.gov;SAPO'Call8.osp*)


:ALLS FOR SERVICE

 Export To PDF             ( Export To Excel | | New Search [

ri::rcf?" crit£"ia

Start Dale:          05.'24.'2013    CndDale:                    05r24'2013

Zipcode;             78238           Dispatch Problem Catogory: TiafflcCalls

COiincil District:   -               School DIsliicI:

Horn eowner Association:



ZZ CALLS FOR SERVICE RETURNED

JriCIUIiNt               Cf.TeCOnr   fROBLFM r-i-pt;     Rfi.'iJ'l.WREOAfi;   AnrjatS;.                                           SGHQCIL       COUNCIL
                                                                                                                                  OiSTRICT      DISTRICT
SHtitBSn

SAPD-2013-                           Traffic Related     5-24/2013            5900-S9B8 0«:HANGE PKWY                             North Side

0464642                                                  12:1321 AM                                                               ISD


                                                         5/24/2013            BANDERA RD / NW LOOP 410                            North Side
S4PD-2013-
                                                         125825AM                                                                 ISD
04B4743

SAPD-2013-                           Major Accident      5/24-2013            2800 Cinema Rdg                      Thtinderbird   North Side
                                                         1:27:49 AM                                                Hills          ISD
0484809

                                     Traffic Relslcd     5/24/2013            WB NW LP 410 OFRP EXCHANI^ PY                       North Side
SAPD-2013-
                                                         2:0226 AM                                                                ISD
04B4880

                                     Traffic Related     5/24/2013            7032-7076 NW LOOP410 EB                             Nonh Side
SAPD-2013-
                                                         2:49:4/ AM                                                               LSD
0484965

                                     Traffic Related     5/24.-2013           5900-5985 EXCHANGE PKWY                             North Side
SAPD-2013-
                                                         2:53:35 AM                                                               ISD
048496S

                                     Mriur Accident      5/24/2013            Nw Loop 410 / Exchange Pxwy                         Norlt) Side
SAPD-2013-
                                                         3:32:39 AM                                                               ISD
0485013

                                     Minor Accident      5/24/2013            Nw Loop 410 Wb /WjNw Lp410Ofrp                      Norm Side
SAPD-2013-
                                                         3:32:50 AM           Bondora Rd                                          ISD
0485014

SAPD-2013-                           Traffic Related     5/24/2013            Nw Loop410 Wb/Ciilebra Rd                           North Side
                                                         1152:42 AM                                                               ISD
046S916

SAPD-2013-                           Abandoned           5-24/2013            6000 Seacroff Dr




                                                                        Copyright @2013 City of San Antonio

              ADAComprrance(/aeUO I Telecommuting (/easU) | SHe Map(/websitemapa9px) | Open Records (topenQOvemmenU) | Cordact Ife (/conUctfl |
                                                                      Privacy Policy and Disclaimer (Idisclaimor.aspx)
   City of San Antonio
   San Antonio Police Department Caiis For Service Report

                                                                                                                                     Report Generated:        7/14/2014       12:45:53PM
Start Date:    05/24/2013                        End Date:   05/24/2013

ZIpcode:      78238                              Dispatch Problem Category;          Traffic Calls
Council District:                                School District;

Homeowner Association:


RECORDS RETURNED:

  Incident Number               Category     ProbiemType            Response Date                    Address               HOA Name.         SchoolDlstrict        Council          Zipcode
                                                                                                                                                                   District
SAPD-2013-0484642          Traffic Calls   Traffic Related     5/24/2013   0:13:21      5900-5985 EXCHANGE                                   North Side                          78238

                                                                                        PKWY                                                 ISD
SAPD-2013-0484743          Traffic Calls   DWI                 5/24/2013   0:58:25      BANDERA RD / NW                                      North Side                          78238

                                                                                        LOOP 410                                              ISO
SAPD-2013-0484809 Traffic Calls            Major Accident      5/24/2013   1:27:49      2800 Cinema Rdg             IThunderbird Hills        North Side                         78238
                                                                                                                                              ISD
SAPD-2013-0484880 Traffic Calls            Traffic Related     5/24/2013   2:02:26      WBNWLP410OFRP                                         North Side                         78238

                                                                                        EXCHANGE PY                                           ISD
SAPD-2013-0484965 Traffic Calls            Traffic Related     5/24/2013   2:49:47      7032-7076 NW LOOP 410                                 North Side                         78238

                                                                                        EE                                                    ISD
SAPD-2013-0484968 Traffic Calls            Traffic Related     5/24/2013   2:53:35      5900-5985 E'iCHANGE                                   North Side                         78238
                                                                                        PKWY                                                  ISD
SAPD-2013-0485013          Traffic Calls   Minor Accident      5/24/2013   3:32:39      Nw Loop 410' Exchange                                 North Side                          78238
                                                                                        Pkwv                                                  ISD
SAPD-2013-0485014          Traffic Calls   Minor Accident      5/24/2013   3:32:50      Nw Loop 410 Wb / Wb Nw                                North Side                          78238

                                                                                        Ld 410 Ofro Bandera Rd                                ISD
SAPD-2013-0485918          Traffic Calls   Traffic Related     5/24/2013 11:52:42       Nw Loop 410 Wb / Culebra                              North Side                          78238
                                                                                        Rd                                                    ISD
SAPD-2013-0486803 Traffic Calls            Abandoned           5/24/2013 15:41:47       6000 Seacroft Or                                      North Side                          78238

                                           Vehicle                                                                                            ISD
:SAPD-2013-0486866 i Traffic Calls         Traffic Related     5/24/2013 16:00:57       Callaghan Rc / Culebra Rd                             North Side                          78238
                       1
                                                                                                                                              ISD
SAPD-2013-0487008 i Traffic Calls          Minor Accident      5/24/2013 16:41:27       Nw Loop 410 Wb / Ingram                               North Side                          78238

                                                                                        Rd                                                    ISD
SAPD-2013-0487011 ,Traffic         Calls   Major Accident      5/24/2013 16:42:19       Nw Loop 410 / Ingram Rd                               North Side                          78238
                                                                                                                                              ISD
SAPD-2013-0487203 1Traffic Calls           Minor Accident      5/24/2013 17:37:40       Nw Loop 410 / Culebra Rd                              North Side                          78238

                                                                                                                                              ISD
  Intident Number I      Category     ProblemType I Response Date                     Address             HOAName   SchootDlstrict   Council      Zlpcode*|
                                                                                                                           I'        District
SAPD.2013-0487267   Traffic Calls   Minor Accident     5/24/2013 17:58:42   6300 Nw Loop 410                        North Side                  78238
                                                                                                                    ISD
SAPD-2013-0487540 Traffic Calls     Traffic Related    5/24/2013 19:08:54   Nw Loop 410Ingram Rd                    North Side                  78238
                                                                                                                    ISO
SAPD-2013-0487575 Traffic Calls     Minor Accident     5/24/2013 19:20:06   Nw Loop 410 s/Vb/                       North Side                  78238

                                                                            Bandera Rd                              ISD
SAPD-2013-0487631   Traffic Calls                      5/24/2013 19:34:44   ALAMO DQV/NSPKWY/                       North Side                  78238

                                                                            NW LOOP 410                             ISD
SAPD-2013-0487640   Traffic Calls   Minor Accident     5/24/2013 19:38:37   5900 Bandera Rd                          North Side                 78238
                                                                                                                     ISD
SAPD-2013-0487790   Traffic Calls   DWI                5/24/2013 20:26:10   Nw Loop 410 Wb / Culebra                 North Side                 78238

                                                                            Rd                                       ISD
SAPD-2013-0488037   Traffic Calls   Traffic Related    5/24/2013 21:53:48   Nw Loop 410 Wb / Culebra                 North Side                 78238

                                                                            Rd                                       ISD
SAPD-2013-0488095 Traffic Calls     Accident Private   5/24/2013 22:14:39   Still Brook / Timberhill Dr              North Side                 78238

                                    Prooertv                                                                         ISD
SAPO-2013-0488237 Traffic Calls     Minor Accident     5/24/2013 23:08:19   Ingram Rd / Nw Loop 410                  North Side                 78238

                                                                            Wb                                       ISD
EXHIBIT 2




   38
July 31. 2017
Hon. Judge Scott Roberts
Presiding Judge
County Court 12
300 Dolorosa, 2nd Floor
San Antonio, TX. 78205.




RE: Trial Cause: The State of Texas v. Benjamin Elias;
    Trial Cause No.: 427052;
       Urit: Ex parte Benjamin Elias;
       Writ No.:   2704.




DEAR JUDGE ROBERTS:




       GREETINGS. The reason for this letter is to inquire as to the status of

the above-referenced cause. Please advise me appropriately regarding this matter.

       Should you have any questiphs or need additional information, do not

hesitate to contact me at the address listed belou. Thank you in advance for

your time and consideration of this matter.




                                        Respectfully,


                                        Benjamin Elias, pro se
                                        TDCJ-ID No.   B1977B
                                        D.B. Ellis Unit
                                        1697 FM 9B0
                                        Huntsville, TX.77343.




Certified Hail Return Receipt No. 7013 1710 0001 0996 B454.



cc.:    file.
                                                                                                             First-Class Merl
                                                                                                             Postage & Fees Paid
                                                                                                             USPS
                                                                                                             Permit No. G-10


                  '=!5qa l^aE gtf^l t30b                           ijb
               United States               • Sender; Piease print yourname, address, and 2IP+4® in Itiis box*
               Postal Service
                                              fc|OtpnfV\ €|[AI
                                          S TDcT'Xi?
                                          - o e.Ellis llnH tO-|2-2G)
                                                           , 1M7 fIViqsO
                                                         H^n-bvi'lle, k)<qj 113^3
                                          |il||li|}llj|}Iii|jj|)|||||ii||,j|||{ili|ll|)iiiij|jjiiii||]||il|




                                                                 &l9?|i
                                                                          Postaje S        0.^^
                                                                         titled Fee        ^
                                                                 nslum Receipt Fee
                                                                                                               j    Poeli^, ' ^_I
                                                        (Endorsement Replied)             2ns            I    I /> -            i- ;
                                                           Restricted Dellvety Fee
                                                        (Endorsement Required)
                                                                                                        ^5^
                                                           Total Postage S Fees $                                  IS I • V



                                                                                                                   ...




                                                       \'afy.siaio.ZP*4
                                                       I
                                                                                      t?OLOj205A f" aJflOOfl—
                                                                           AKnON\0.J^)(AS l9y20S                                   \


SENDER: C0MPiCTE7H/SSECW0W, ,;;;\: rv!;X'; -^MPt£rE miS SECTION ON DEUVERYsy ^

  Printyoui^nirrieafTd.aa'dress.on.the reverse
 •ISO ibatiwexan retijrnXrie Sard to .you; •.>• '-•.
 -Attach trils'-card to the back of the mailpiece.           .©^Boceivedby'fPn/jreiJNdme,)        -   C.iJsfieofpelW^"
  •oron the front ifspacejJermits.- , , .
 tAtIicIG Addressed to:                                      0. :lsdelivery address diffe^t from* item 17 '^3 ^es^
                                                             .     IfVES.^enier dGliuetv'addrfess'lietdw;' . •-No "r

          •Prei-jcli nt)^v{j(ae
        ^r)h Gyrt
    .'300-:ft|oroSc\,'2nc( .flooir
           r'Wj-iuOjO^
                                                                                                      MB
