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FEB 23 :j;j cAUsE N0.114-0163-13-A h
EX PARTE § IN THE coURT oF cRIMINAL APPEALS
- oF AUSTIN TEXAS
RoBERT %MSC®BK§LM'h . § 1
Applicant §

APPLICANT'S REPLY AND OBJECTIONS TO THE STATE$S SUPPLEMENTAL ANSWER TO APPLI-
CATION FOR WRIT OF HABEAS CORPUS/RESPONSE OF ALM;THOMPSON,J.R.TO APPLICANT'S
GRIGINAL APPLICATION FOR POST CONVICTION WRIT OF HABEAS CORPUS,...AND THE TRI#
AL COURT'S,WRIT OF HABEAS COerS:FINDINGS OF FACT AND CONCLUSIONS OF LAW.

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW,ROCERT JAMES WILLIAMS,and files this Applicant's Reply and Object-
iOnS tO the STATE'S SUPPLEMENTAL ANSWER TO APPLICATION FOR WRIT OF HABEAS CO-
RPUS RESPONSE OF A.M.THOMPSON}JLR. TO APPLICANT'S ORIGINAL APPLICATION FOR' l
§OST CONVICTION WRIT OF HABEAS CORPUS....§AND TRIAL COURT'S WRIT OF HABEAS
CORPUS:FINDINGS OF FACT AND CONCLUSIONS OF LAW.In Support therepf,AppliCant

 

 

 

 

will show the following:

I.HISTORY OF CASE AND FACTS

The Applicant,Robert J.Williams,was indicted in Cause No.ll4-Ol63-l3,filed
in the ll4th District Court of Smith County,Texas,with the offense of felony
Driving While Intoxicated.However,on April 22,2013,Applicant,jonkhowinglyjand
involuntarily entered his guilty plea to Driving While Intoxicated("D.W.I.")/
due to counsel's failure to investigate,and trial counsel's coercion by his
continued warnings that Applicant would definitely receive a life sentence if
he proceeded to jury trial,his failure to pursue the lack of procedural in-
vestigative methods by state police,failure to build a foundation for Applic-
ant's defense,based on the absence of a suppression hearing regarding §e§aéd&é
af inadmissible hearsay.

II.APPLICANT'S RESTATED ALLEGATIONS

Applicant complains of four seperate grounds for relief:

(l) APPLICANT CONTENDS THAT HE UNKNOWINGLY AND INVOLUNTARILY PLED GUILTY TO A
DRIVING WHILE INTOXICATED CHARGE.
APPLICANT'S REPLY AND OBJECTIONS TC)TRIAL COURT'S COUNTERPOINT ONE:

a.Though trial counsel states a contradiction to the record fact that Applica
'ant admitted to him that he smoked P.C.P.,but he was fine when he left his
-girlfriend&s house,cannot reasonably be believed because this would be inco-
nsistent with the record fact of the arresting officer stating in his report
that he investigated the Applicant's behavior and his apparent denial to the

taking of any drugs whatsoever,is illustrated by the officer's continued ac-
_l_ `

._ _ r

tions of finding it necessary to have to call the Applicant's uncle/Ronnie
Von,and his attempt to have the blood draw nurse to retrieve the Applicant's
blood.These evident actions from the police would contradict why the alleged
admission that the officer claimed the Applicant stated that he had been us-
ing P.C.P.,because it would have not been necessary,reasonably,had the the
police properly obtained the Applicant's confessed statement in accordance
with Texas Code of Criminal Procedure,under article 38.22 §(3).

b.Also,the trial counsel's claim that the`Applicant advised him that he had
been getting high earlier on P.C.P.,has to be a fabrication on the trial co-
unsel's part because if this admission by th Applicant were true,there would
not have been any reason for further police investigation nor for the police
to consult with the Applicant's uncle on the subject,if the Applicant really
did confess to using drugs at the time he was at his girlfriends.Moreover/the
Applicant's rights to legal confidentiality between attorney and client would
be violated by the trial counsel's allegation,in his affidavit/that Applicant
told him he used P.C.P. on the day of his_charged D.WlI.,would equally illus-
)trate the trial counsel's believability to this non~evident fact,since the
trial counsel claimed he filed a motion to suppress this same alleged statemen
nt.(See page 36 from the Supplemental Writ of Habeas Corpus record,filed and
forwarded by Lois Rogers,the Smith County District Clerk.).

Applicant,disagrees with the State's conclusion,that he knowingly and volun-
tarily pled guilty to D.W.I.(Also,see Applicant's"A"/on pages 35-29.)Ex par-
te Reedy,S.W.3d at 494~495,and Herring v.Estelle,49l F.Zd 125(5th Cir.1970).
[NOTE:The Applicant'S WAIVER OF MOTlON FOR NEW TRIAL AND mI'ION IN ARREST OF
JuDGMENT AND wAIvER oF 'RIGHT To APPEAL.is nat signed by the presiding judge.
See page 52 from the Supplemetal writ of Habeas Corpus record.] n
(2) ABBEICANT CONTENDS THAT NO EVIDENCE EXISTS 'I‘O CORROBORATE WITH HIS CONV-
ICTION FOR DRIVING WHILE INTOXICATED.

APPLICANT'S REPLY AND OBJECI'ION TO TRIAL COURT'S COUNTERPOINT TWO:

Applicant disagrees that his"NO EVIDENCE"claim should be denied as the trial
court suggests.The trial court is misconstruing the Applicant's claim that his
no evidence claim to show no support of a D.W.I.charge is a legal sufficiency
claim instead ofithe cognizable claim of"no evidence".However,the state is co~
ntinuing to rely on the hearsay evidence from the arresting officer's allega-
tion,which is contrary to article 38,23 §(a),and is a circumstantial evident
non-fact,whereas,there is"no evidence"nor a temporal link from any scientific

'tangible proof that transcends mere suspicion.Therefore/this false used mat-
_2_. `

erial non-proven fact cannot be reasonably inferred from the officer's alle-
gation that the Applicant confessed to using P.C.P.,because the officer also
stated that the Applicant was cooperating with him,so the arresting officer
had every oppurtunity to properly obtain the alleged evident statement,either
by video or audio recording,or even simply requesting that the Applicant sign
his name to a stated confession.Further,the State's inferences are that since
the Applicant crashed his vehicle into several cars that this was a result
from P.C.P.,although the circumstances of this inference is an unknown fact.
What is unreasonable is the Applicant's actions are not reasonably consistent
with a person under the influence of P.C.P.(There was no evidence of haluci-
nations,usually associated with P.C.P. use.).

Although,the law does`allow circumstantial evidence to be used as a material
fact,so long as it transcends mere suspicion,the material fact must be reason_
ably inferred from known circumstances,but may not be proved by unreasonble
inferences from other facts and circumstances or by piling inference upon inf-
erence.

'The no evidence standard in Thompson v.Louisville,362 U.S.199,ensured the due
process right from a wholly arbitrary deprivation of liability.The question
in Thompson,is the same question raised in the instant case,by Applicant,was
not the sufficiency of the evidence/but whether the conviction"rested upon any
evidence at all."The Thompson Court held that a criminal conviction could not
be sustained based upon a record that contained"no evidence"of the charged of:
fense.Applicant objects to the trial court and the`trial counsel's response
from his affidavit(Attachment l-Affidavit of Mr.Melvin Thompson,at 3-4.),bec-
ause the arresting officer's failure to obtain the alleged evident confession
piled on top of the inference of the Applicant's actions were more consistent
with injurycthan¢it was with a person under the influence of P.C.P.Kuciemba,
310 S.W.3d at 462-463,in relevant part to the State's failure to show a temp-
oral link between driving and intoxication when a defendant is charge with
driving.while intoxicated.(See also/Honeycutt v.State,499 S.W.Zd 662,(Tex.
Crim.App.l973).

Furthermore,the trial court is relying,also on the Applicant's signing of
the judicial confession,as evidence.However/in light of the fact that the Ap-
plicant and the trial counsel's statement that the Applicant was coerced into
waiving his jury trial,whereby,it was shown,similarly in Herring v.Estelle,49l
F.2d 125(5th Cir.1970),1ike in the case at bar,where in Herring,filed a post-

conviction application for a writ of habeas was filed under Texas Code Crim.Ps
_3_ .

roc.Ann.art.ll.O7/by an applicant who pled guilty to capital murder.Though the
Criminal District Court No.Three of Tarrnat County,Texas recommended his allej
gations be dismissed because,as part of his plea agreement,he waived his right
to seek state post conviction habeas corpus relief,in exchange for the State's
agreement not to seek the death penalty Waiver of post conviction habeas cor-
pus relief by applicant seeking habeas corpus under Tex.Code Crim.Proc.Ann.art
.ll.O7,was not enforcable as he claimed he had no choice but to accept the pls
ea bargain because of deficiencies of trial counsel in investigating and prep-
aring a viable defense unknowingly and unintelligently.However,the court rem-
anded the writ application to the convicting court to determine whether the 33
applicant's claim of ineffective assistance of counsel presented controverted
,previously unresolved facts material to the legality of the applicant's con-
finement.If so,the convicting court should proceed to a resolution of those
appropriate unresolved facts in accordance with Tex.Code Crim.Proc.Ann.art
icle ll.O7 §,3(d).See Ek parte Perales,215 S.W.3d at 419(Tex.Crim.App;2004)/
in relevant part to no evidence being a cognizable ll.07 claim and Ex parte
coieman,559 s.w.zd 305,307(Tex.crim.App.1978).
(3) 'I‘RIAL COUNSEL WAS INEFFECTIVE,THEREFORE,CAUSING APPLICAN'I‘ 'l‘O ENTER AN
INVOLUNTARY PLEA. _
APPLICANT'S REPLY AND OBJECTTON TO.TRIAL COURTFS COUNTERPOINT.THREE:
though trial counsel erroneously reasons that his failure to investigate the
arresting officer in order to dispute the fact that no smell of alcohol-compos
unded with the absence of any test being conducted to illustrate P.C.P.was the
cause of Applicant?s actions,that it was in all likelihood,what led to off-
icer's decision to obtain a blood sample¢This conclusion by trial cpunsel and
the trial court undermines the confidence in the Applicant's conviction and
plea,because had the trial counsel built a defensive foundation by an indepen-
dent investigation of the evidence from the Applicant's statement of facts
rather than deficiently drawing conclusions from what the officer's intentions
likely were,pursuing a defense from the fact that if Applicant was cooper-
ative and willingly confessing to the intake of P.C.P.,any video/audio,or si-
gned statement should have been obtained and would have been satisfactory to
`tprove the charge and the need for the blood draw,after the alleged confession
is unnecessary and unreasonable in light of the evident circumstances.

ab.Combined with the above mentioned facts in§a;trial counsel had an obligatis

on to independently investigate Ola S.Darks,the blood draw nurse/after the Ap~
plicant informed the trial counsel of the cotrivance of the police instructing
_4_

nurse Darks,to dispose of the little bit of blood that was retrieved.

c.Though the record demonstrates that a suppression motion by trial counsel
was drawn up concerning the suppression uof;theballeged confession by the Ap-
plicant that he told the arresting officer that he used P.CwP.on that partic-
ular day,but absent any legally obtained evidence,the trial counsel admits tha
at he continued to prepare for the Applicant's case for trial and that on Ma-'
rch 25th,2013,he filed pretrial motions,allegedly including the Applicantis in
AppendixFA",a copy of the motion to suppress,but with no March 25,2013,date on
it and no stamp by the clerk that the motion was filed and nor does the tri-
al counsel or the court support its illustration by the clerk's record,that th
the suppression motion hearing was pusued by the trial counsel,whereas count-
ering the Applicant's claim in this context;Therefore,compounding the trial
counsel's coercion that the Applicant would receive a life sentence if he pro-
ceeded to a jury trial and the incompleted independent investigation of facts
from the trial counsel's and state police,in determining the Applicant's char-
ge,caused the Applicant to enter an unknowingly,unintelligentlplea of guilt.
See United States v.Streeter,7O F.3d l3l4(D.C.Cir.l995).

Applicant objects to the trial court‘s conclusion that this Applicant's THIRD'
GROUNDB ,should be denied,and requests that the habeas court grants him relie;
ef. ` -4
(4) APPLICANT WAS DENIED DUE PROCESS WHEN "I‘HE STATE'S INVESTIGATIVE PROCEDURES
`WERE UNFUNDAMENTALLY EXCLUDED FROM DETERMINING APPLICANT"S DRIVING WHILE INTQ-

XicATED cHARGE. _
APPLICANT's REPLY AND oBJEcTIoN To TRIAL coURT's couTERPoINT':FoUR:

Applicant disagrees with the state trial court‘s failure to resp
pond to the Applicant's claim of lack of the proper state investigation,

by its erroneous allegation,that the Applicant's ground is without merit.How-
ever,it is clearly apparent that any reasonabe arresting police officer,first
being presented with a voluntary confession/such as the alleged/but no evident
admission by the Applicant that he used P.C.P.,causing the Applicant's cha-
rge and conviction,that should have been obtained through a fundamental police
investgative procedure of a signing the statement to his alleged admission or
video and/or audio taping the Applicant‘s cooperative confession,whereby,adh~
ereing to the law in this context,therefore,satisfying the legislatureés in-
tentions that require state invesigator's to do in obtaining proper eviden-
ce in order to prevent reasonable doubt and questions of fact.Ex parte Bradley
1781 S.W.Zd at 904,Dispensia v.Lynaugh,847 F.Zd 211,218(5th Cir.l988)and Fost-
_5_/

er v.California,394 U.S.440.

III . CONCLUSION

WHEREFORE,PREMISES CONSIDERED,the Applicant prays that the Court find that in
there are controverted,previously unresolved facts that are materially val-
uable to the legality of Applicant's confinement and that there is a necessity
for a fact-finding hearing because there is ample evidence in the record for

the Court to rule on the relief sought by the Applicant,therefore,granting

him relief on his habeas corpus writ.

Res:;;;fully submitted,
L?

%/f /////M

Robert Jamg s Williams"185574l
Coffield Unit
2661 FM 2054

Tennessee Colony,Texas 75884

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Applicant's Reply and Objection to the
trial counsel and trial court‘s answers and recommendations to the Applicant”s
writ of habeas corpus,is true and correct and mailed U.S.postage pre-paid to
the Clerk of the Court of Criminal Appeals of Texas,at P.O.Box 12308,Capitol
Station,Austin,Texas 78711 and the District Clerk of Smith County at 100 N._
Broadway #204,Tyler,Texas 75702.
'Executed on this 12th day of February,2015.

Robert Williams#185574l

