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Cause No. F-ZOlO-1896-D WHC-l

ry RECE|VED |N
` COURT OF CR|M|NAL APPEALS
E:X PARTE § IN THE DISTRICT coURT
§ NOV 3 0 2015
§ 362nd JUDICIAL DISTRICT
. §
BRANDON IsLAS § DENTON coUNTY, TEXAS
APPLICANT's REPLY To Sl'ATE's ANswER, Ab€lACCSfa. Ci€|'k

OBJECI'ION 'IO PROPOSED FAIDINGS AND CONCLUSI('X‘B'
AND SUPPLEMEN'RL MEDKFRANDUH OF LAW

 

This Reply is submitted pro se in response to the State's Answer (SHA)
and proposed findings and conclusions, received by me from the prison mailroom
on October 27, 2015. The State's Answer was postmarked on October 23, 2015,
presented in the Certificate of Service.

My Motion for Appointment of Counsel was submitted, via placement in
the prison mail system, on October 26, 2015, and file-stamped on October
29, 2015. That motion is made pursuant to TEX. CODE CRIM. PROC., art. ll.074
and is currently pending.

This Reply is dated and submitted, via the prison indigent mail systeml
on November _éL§_! 2015.

I. OBJECTION TO PROPOSED FINDINGS AND CONCLUSIONS

 

I generally object to the State's proposed findings and conclusions
as being made without adequate fact-finding by the habeas court. Further,
I specifically object to the failure to provide my former trial counsel and
l appellate counsel the opportunity to respond to my allegations of ineffective
assistance. Any such failure should require a remand to the habeas court
for further review. Ex parte Leos, (Crim. Ppp. 2006) WL 786873 (Lhrptd); Ex parte 'l‘atro,
(Crim. Dpp. 2006)(WL 826 7]l)(reremd required whm oomsel not aff<r<bd opportunity to respord
to claim of ineffectiveness). I request that the necessary order be issued to
require further adequate review of my habeas claims. I request that the
former attorneys be ordered to submit affidavits, addressing my claims and

that they provide me completecopfesof all submissions wade by them for thisv

review.

fl'

‘Islas Reply l F-2010-1896-D V\HC 1 Page 2

£F' II. REPLY AND SUPPLEMENTAL MEMORANDUM

 

GROUND l JURISDICTION

 

Inexplicably, the State attempts to characterize this issue as a challenge
to the indictment. SHA, p. 3. This mischaracterization is not credible. In
no way do 1l attempt to assert or argue that the indictment wa"s _defective. _
Hab. A;p., p. 6; Pppts. Mem., pp. 3-5. The State's argument of a defective indictment

should not be considered due to it's irrelevance.

DEFECTIVE STIPULATION

 

The State asserts that the question of finality that I did raise in
this claim can be disposed of by the stipulations I made`on the advice of
trial counsel. S-]A, pp. 4-5. My claim is that the State presented a 1993 DWI
conviction as a final conviction to satisfy the required jurisdictional element
to allow a felony prosecution, but raised a question of finality due to the
submission of an unsigned, undated judgment that is not proof of anything.
S:. Hab. F_!xh. (SHX 1). The State asserts that any complaint, now about jurisdiction,
is irrelevant due to my trial stipulations made on the deficient assistance
of trial counsel. SHA, p. 5; SJXH (SX 40), item 3. Had my trial counsel properly
advised me on this issue, I would not have made any stipulation regarding
the finality of the convictions. But for his ineffective ,assistance, I would
not have stipulated to'l the finality of the 1993 conviction. SeeGromd 3 herein.
Prior final convictions are essential jurisdictional elements of a felony
DWI offense. Ren. Oode §49.09(b); CCP!a`rt. 4605§'3:ate v. M=.'wbourn, 993 S.W.?d 771, 772
('nex. ppg - iyler 1999); Barfield v. scate, 99 sw.zd 23, 24 N.l" (iex.ppg - Pbuscm [14th Disc.]
1999); nollen v. state, 117 s.w.3d 798, 801 (iex. crim ppg 2003); mdyenlv. State, 436 s.w.3d
399, 401 ('Iex. App. - Ft. Worth 2014); D't£innis v. State, 746 S.W.2d 479 _(Tex. Crim App. 1988).
1 The State has the burden to prove the finality of the prior convictions alleged.
nar-rison v. state, 950 s.w.;\d 419, 421 ('Iex. ppg - Foustcn [1st n'LSt.] 1997)(31;1¢:11311 tm prior

l

oomictions are admitted to by defendant, birden remains 'm State to prove firla`lity, citirg

` isles Repiy l F-2Q10»1896-D mc 1 Page 3

Spiers v. State, 552 S.W.Zi 8‘5L 852 ('lex. Crim. Agp. 1977). Affirmative evidence of non-
finality is an exception to the validity of a stipulation of finality. Harriso'l,
id at 422. The State may create a question as to finality by introduction
of a defective document purporting to represent the finality of a prior con-
viction, yet actually defeats the prima facie case of finality. I\’bGinnis, 746
S.W.Zd at 4827 Fletdler, 214 S.W.3d at 6-8 and N. 7. A defendant has no burden:-' to
raise the issue for later review. F`letcha', id at 8. A stipulation does not
relieve the requirement of finality-for a prior conviction to be used to
satisfy a jurisdictional element. Rcbles v. State, 85 S.W.3d 211, 216 ('Dac. O:im. ppp.
ZIX)). It has never been held that a defendant can make legal,"by agreementi
something that is not authorized by law. E‘x parte Sirrs,7 868 S.W.2d &JB, 801 ('Iex.
Cn'm. ppg 1993).

A criminal sentence imposed by a court lacking jurisdiction would not
be authorized by law and therefore illegal. Jurisdictional matters may not
be waived.and may be raised on direct appeal or by habeas challenge. Necbom»
993 S.W.Zd at 773 -'; Ex parte Rich, 194 S.W.3d 5CB, 511 and 513 (’Iex. Crim. App_.. 2(1)6). A
claim of illegal sentence is cognizable on a habeas application even if an
applicant has pled true to enhancement paragraphs. Eb< parte Rich, id at 510 (Pbldirgs).

In this case, the State made a prima facie case of jurisdiction by pleading
two,qualifying convictions in the indictment. SLA E`xh. A. The State then
destroyed that showing by introducing a certified copy of the unsigned, undated
Judgment of `Probation, which was affirmative evidence of non-finality of
the 1993 DWI conviction. SJAExh. I (S]X l). The only other evidence introduced
by the State,- as to the finality of that conviction, was the written stipulations
my trial attorney advised me to sign. SHA E><h. H (S;X 40) No other supporting
evidence was introduced _at trial regarding the prior convictions.

The State has offered the decision in Old Chief v. U.S., 519 U.S. 172 (1997)

as one of several controlling precedents, however Old Chief is not binding

, mae Reply ' . F-2®1018%D mc 1 tage. 4

as to~proof of finality of convictions pled to satisfy a jurisdictional element.
W, ll S.W.3d at 2CD. At least one court of appeals has declined to apply
Old Chief to Pen. Code §49.09(b). Idat 200.

Proof of a prior final conviction must be established for that conviction
to be used to enhance or elevate an offense. anry v. State, 331 S.W.3d 552, 555
('Iex. Ppp. - EbIBtm [l4th Dist] 2011, nopet.). The burdenf of proof of finality
is that of reasonable doubt. 11 A failure by the State to meet that burden
bars the conviction from use to elevate the offense. 31 A stipulation to
a prior conviction affirmatively links a defendant to a convictionwbuttdoes
not necessarily satisfy the burden of proof for finality. LDS, 85 S.W.3d at
2167 _I‘En__ry, 351 S.W.3d at 555; Flowers v. State,' 220 S.W.3d 919, 921-22 ('lex. Crim. App. 2007).,
A stipulation is,a form of evidence that supports the conviction and precludes
further presentation of evidence to a j§£y, however in this case, my stipulation
is contradicted by the certified copy.of a defective judgment filed contemporv `
aneously with the 1993 court proceedings. The State's submission of that
document creats reasonable doubt as to finality of the 1993 conviction, which
is more probative than my stipulations made thirteen years later. E§E§!ll
SJl3daK.XR kiipiadrnssu§ioawhaiUry<zmrythesameeddattzy\@hxaasije jdgmmts
of};icr oxmdctd:s).

If the burden of proof as to finality of the 1993 DWI conviction has
not been met, and because the record reflects that no additional qualifying
convictions were pled as jurisdictional elements, and no other extrinsic
evidence was submitted to support the finality of the 1993 conviction, then
all that is left is the predicates to obtain a misdemeanor conviction pursuant
to Pen. Code §49.09(a), over which the convicting court would have no juris-
diction, and for which the currently imposed sentence would be excessive

as not authorized by law.

. lsias reply Hoic>ie%-D mc 1 page "5

RELIEF

The appropraite,relief would be to vacate this conviction, as I have
served a prison term that exceeds any term allowed for a misdemeanor offense.
Fletdier v. State, 214 S.W.3d at 9.

II. ADMISSION.OF BLOOD SAMPLE OONTRARY TO A NEW RULE OF LAW

 

During the pendancy of my appeal the U.S. Supreme Court established
a new rule of criminal procedural law, rendering Trans. Code Sec. 724.012(b)
unconstitutional as applied to the facts and circumstances of my conviction.
App. pp. 8~9; I>pp. Man. gm 6-10; P/tissouri v. M:Neely, __133 S.Ct. 1552 (2013)(decisicn date 4/17/13)
(oollecticn of evi<brrtiary blood specimmt wittout a warrant violates F‘ourth Arerdnent absent
exigerm circlirstames).; State v. Fine, 330 s.w.3d 904, 910 ('iex. Criin. ppg 2011.). Had the
decision in Wbeen applied to my case, on appeal, my conviction would

have been reversed. TEX. R'.. APP. H?OC. ('IRAP) 44.2(a); Srrtith v. State, S.W.3d 2014

 

'Iex. A;p. LEXIS 12372 .(11/13/14, pet. review grated 2/11/15).
FACTUAL HISTORY

The evidentiary blood.speciment was collected without my consent and ~.'l'i`
without a warrant, based solely on the repeat offender provision of Trans.
Code Sec. 724.012(b)(3)(B), and occurred while I was in custody. FR7: p. 107
` (plaoed wider arrest), p. 108 and 122. (-refused breath test and blood test); SI'X 35 (oollectio'l
order form 'IPF 51)

The prosecutor elicited false testimony from a police officer, misleading
the jury into believing the specimeni collection was made pursuant to a warrant
or authorization of a judge. RR7: pp. 108-1097 SI‘X 35.

The blood evidence was used extensively at trial and provided scientific
proof of intoxication beyond a reasonable doubt. SI'X 39 (blood analysis repCrt);

mm pg 13-159 (entire pestva of rigid sample armySiS); W, __ S.w.ad __ (g
17 - report erases reasonable dmbt' by presenting scientific evidence of legally defined intoxicaticn)..

Trial counsel failed to correct the false testimony elicited by the

1

_ Islas reply F-z)10-1896-D wm 1 Page 6

prosecutor described above.
ARGUMENT

The State argues that this claim is one of sufficiency of evidence,
therefore it is not a habeas issue. SiI-\, p. 6-7. rI'his is another mischaracter-
ization of a claim in my application, and the only argument presented by
the State. In facti this issue raises a claim of a violation of the U.S.
Const. Amend. IV; Tex. Const. art. l, §9; CCP art. 38.23'(a); Srtith v.State,
2014 'Iex. App. LEX[S 12372, Mam. Cp. p. 5 and N. 6. (oollecticn of evidentiary blood sample
implicates Folrth Arre'xine'it).

This issue was not decided on appeal and the issue of admissability
based on the potential ~of police misconduct is not presented herein as a
habeas claim.

The issue of ineffective assistance of appellate counsel is presented
in Ground 4 herein as well as the original application and memorandum. Hab.
App., pp. 8-9; Ppp. Nen.,, 6-10.

-RETROACTIVE APPLICATION OF MCNEELY

 

The State claims that it was "unclear" whether or not McNeely could
have been applied in the appeal"_court's consideration of my case. SiA, p. 15.
-I do not agree. seeA;p. l`/Hn.,7 p. 6': C¥oir'd4he:ein, iten2.

McNeely was decided on April 17, 2013, duirng the pendancy of my appeal

and the appeal in Smith v. State. >Srrith v. State, No. l3-ll-694F(R, 2013 WL 5970400 ('It=_>x.7

 

l>pp. - Cbrpus G'u:isti 10/13/13, m pet.)(Men. Op. not p.b'd), withdraw and replaced by §_rl£h_
v. State, 2014 'Iex. Ppp. LEX[S 12372, decided 11/13/14 (omvictim reversed, case renarriled).
The reversal of the conviction in M was entirely the result of the application
of the Uly decision retroactively.
My appeal was filed in April, 2012, and the decision was rendered on
May 14, 2014. During‘that time period __D/ki_\l_ee£ was decided, and §r_t_i_thwas decided

and then reconsidered, and the State's PDR granted on February 11, 2015.

Islas Reply F-2010-1896-D V\HJ l Pag@ 7

Also, another appellate court decided that _N_bl\hel:__y_ applies retroactively as
noted in the State's habeas answer. SHA, p. 15: State v. Esher, 3315 'lex. Agp. LEX[S
772 ('Iex.` App. - Dallas 7/2'7/15, no pet.)(lvsn. Cp. mpub‘d).

As presented in Ground 4 herein and in my initial habeas submissions,
I was entitled to the application of the __p_l‘/H\le__e_l_y_decision to my conviction
for consideration on appeal. At least two other appeal courts retroactively
applied_Uly to cases on appeal. The State's assertion that it was "unclear"
whether _l`/ti__\lee_ly could be applied retroactively to cases on appeal is not supported
by the greater weight of precedent and the conduct of other Texas appeal
courts. See §rl;'_t_h_, 2014 'Iex. App. LEXIS 12372 (Cp. p. 15)(relevant <Hcisims of 'Iexas appeal
courts applirg lvbNeely).

ANAL'YSIS OF MCNEELY APPLICATION

 

Without a demonstration of exigent circumstances or express consenti
a warrant was required toi`obtain the evidentiary blood sample used in my case.
l M, id at 16. Because the blood sample was * obtaii'-_nede'.;without a warrant or
valid exception to obtaining a warrant, 'D:ars. G:Jde §724.012(b) was unconstitutionally
applied and the blood evidence should be held to be inadmissable. L`t_h, id at 16.
Due to the extensive use of the blood evidence at trial previously described,
as well as the scientific proof of intoxication that erases reasonable doubt,
it cannot be said, beyond'a reasonable doubt, that the blood evidence did not
l contribute to my conviction, which should result in a reversal of this conviction.
U, id at 17;' Hemardez v. state, 60 s.w.3d 106, 108 (ieg crim. ppg 2001); iex. R. ppg_.
Proc. 44.2(a).
Just as in W, other circumstantial evidence of intoxication was presented
by the State. SHA; p. 16; oqrparewith §__m`_th_, p. l7. Just as in§l@`t_l'_l, the test
result, on the blood sample, exceeded the value the legislature set to define
intoxication.'fSIX 39 - Feport of ll\nalysis.l Just as in _S_m'_th_, the blood sample .'

analysis eliminated any reasonable doubt of intoxication based on the other

, Islas Pepiy- F-2010-1896-D mac 1 rage 8

circumstantial evidence presented to the jury. Finally, just as in Smth,
this conviction should be.reversed.

III. TRIAL COUNSEL_RENDERED INEFFECTTVE ASSISTANCE

 

RIGHT TO COUNSEL

As the accused, I had the right to effective_assistance of counsel.
u.s. thst. Merd. VI; 'lex. clnst. art. l, sec. lO: Garcia v. State, 57 S.W.3d 436, 440 ('l\ex.
crim ppg 2001, cert aen'a); U.e v. crmic, 104 scr. 2039, maria 1\1 10 (1984); W
v. Soott, 60 F.3d 1167, 1170 (5th Cir.. 1995).
STANDARD OF REVIEW

A claim of ineffective assistance is reviewed by the two-prong Szickk¥d
test, demonstrating 1) deficient attorney conduct and, 2) that the conduct
deprived the defendant offa fair trial and reliable result. Bcpmteheerm
785 s.w.aa 391, 393 (Tex. crim p@. '1990); ihcxrpsonv. s;ate, 9 s.w.3d 808, 812 (Tex. crim
A[:p._ 1999); lockhart v. Eretwell(~f' 5(6 U.S. 364, 369 (1993). Although generally evaluated
by‘a totality of the representation, a single error may be sufficient to
demonstrate ineffective assistance, especially during the punishment phase
of trial. ']hc!rpson, 9 S.W.3d at.813; gr:r__u_c, 104 S.Ct. at 2046 N. 20. The applicant's
burden of proof is one of preponderance of the`evidence. Trnpaxh_9.SJm3dai
8137 .E>c parte Nisvarger, 335 S.W.3d 611, 615.'(']lex. C‘rim. Ppp_.) 2011.).

`PRETRIAL OBJECTION TO ATTORNEY PERFORMANCE_

 

My pretrial objection to --the assistance of trial counsel is a matter
of record. FR'S: pp. 15-2!). At one point, the trial court terminated counsel's
appointment but reinstated the appointment when new counsel was noteximmediately
available.
DEFICIENT CONDUCT

'I'rial counsel rendered ineffective assistance by failing to develop
a firm command of lthe law and facts of this case through adequate independant

investigation resulting in an insufficient adversarial test of the State's

 

Islas Reply ~ F_2010-1896-D wpc 1 Page 9

case. This resulted in counsel's inability to provide any opening statement
and a rambling, incoherent, irrelevant closing statement; advice to stipulate
to a critically flawed judgment to establish a jurisdictional element; a
failure to object to law enforcement testinony that was obviously false;

and a failure to challenge the finality of a prior conviction used to establish
a felony intoxication offense.

The State incorrectlyassertsthat I am complaining of trial counsel's
conduct relevant to challenging the admissibility of the blood at trial.

SL H§m Ari,pi & ium\l. This was not stated in my habeas application. HIL
Ppp" pp.]f%ll. Because that was not part of my claim in Ground Three. I ask
that the Court disregard the State's argument presented in it's Answer. (Bzm
14 ga 84».

Likewise, the State has presented the same assertion in a different
manner by characterizing the claim as "Tampering." see S-lAi p. 13, item 8; oorpare
vdth.H;idzttmL pp.lO-UJ No claim of ineffective assistance, related to "tampering",
is expressed in Ground Three.

Because of the argument above, I specifically object to the State's
proposed Conclusion of Law No. 3. No attempt to re-litigate the issue of
admissability, based on "tampering" or other police misconduct has been made
in my habeas application. These are bad faith'smokeand mirror" representations
by the State and should be disregarded.

ITEM 2 - FAILURE 'I'O MAKE OPENING STATEMENT

 

Following the prosecutor's opening statement, my trial counseli Van~
zura, declined to provide an opening statement for my defense. RRh p.16
The State has argued that this may have been a strategic decision that does
not support an ineffective assistance clainn SB&'HA 9411 The several pre-
cedents cited by'the State addresses only a tactical decision to pass on

‘opening at the start of trial. Vanzura,however, passed on delivering an opening

Islas Rq>ly F-Z)lO-1896-D v\HC l ' Page 10

statement at the start of the defense case as well. RR7: pp. 168-69.
Although not making an opening statement alone may not be deficient

. conduct by itself, the complete lack of van opening statement may demonstrate
a lack of effort to provide.effective assistance. Stouffer v. Reymlcb, 168 F.3d
1155, 1163 (10th Cir. 1999). The opportunity to marshall evidence and provide
a blueprint of the upcoming defense case is a vital aspect of legal advocacy.
Jcnes v. Jc:nes, 988 F.Sipp. lGX), 1CD3 (E`..D. La. 1997); Perring v. NewYork, 422 U.S. 853, %2
(1975),.

Once the State has closed it's case presentation, defense counsel is
fully aware of the State's case removing any justifiable :str:'ateg§i:cr reason
to completely waive making an- opening statement. JoE, 988 E‘.Sug). at lCD3 N. 4.
By depriving.the jury of a roadmap of any defense theory, the jury had no
context to form reasonable doubt of guilt, which harms me by allowing the
jury to presume the lack of a~ viable defense. Stouffer v. Reynolds, 214 F.3d 1231,
1234-35 (lOth Cir. 2013).

ITEMS 3 & 4 - WITNESSES AND MEETINGS

 

The State incorrectly directs the Court to the appellate decision at
Opinion pages *13-14 to demonstrate that any claims regarding witnesses and
client meetings were resolved as issues. The State's assertion of disposition
of those issues is not accurate as the appeal court made no reference to
ineffective assistance in deciding appellate Issue Three. &]A Exh. Cat- *17-21;
SHA, p. 10 and N. 9.

'Ihe record reflects that two pre-trial hearing .were held, relevant to '
assistance of counsel. RR4 - Hearirgcn 2/7/12:’ FR‘S - [-Earirg cn 2/28/12. My lack
o'f contact with Vanzfir.ai was presented to the trial court. RR4: p. 8. The
lack of pre-trial investigation, regarding witnesses, was also presented
to’c:th`e trial court. RR4: p. 8. Nei'ther the trial or appeal court. made any

findings regarding those issues related to the effective assistance of counsel

isles Peply F-2010-1896-D nic-l Page ll

as claimed by the State.

ITEM 5 - INVESTIGATION

 

To provide effective representation, an attorney is required to develop

a firm command of the law and circumstances of the case through independant
investigation to allow the development of viable defense theories, provide
meaningful-5 assistnace regarding a decision to accept ~a plea offer, effectively
elicit testimony at trial, and generally subject the State's case to a meaningful
adversarial test. Giildress v. Jol'lnson,y 103 F.3d 1221, 1227 (5th Cir. 1997); bsynes v.

_St&£, 790 S.W.2d 824, 827 ('Iex. A;p. - Austin 1990); U.S. v. D:mes, 218 F.3d 496, 500 (5th

Cir. ZOCD); E.x parte Li_lly, 656 S.W.2d 490, 493 ('I\ex. C‘ri.m App. 1983); 'Eeist v. Soott, 885

F.Slpp. 927, 931 (E.D 'Iex. 1995); Ex parte langley, 833 S.W.2d 141, 143-44 ('Iex. Crim. App.

1992): Ex parte Chandler, 182 S.W.3d 350; 358 ('Iex. Crim. App. 2005). Vanzura's failure

to develop a firm command of the law and facts caused _him to advise me to
erroneously stipulate to a conviction for which finality was unproven; he

failed to even challenge the finality of a prior conviction used to satisfy

a jurisdictional element; he failed to recognize and correct the false testimony
. elicited by the prosecutor from a police officer/z and he failed to present

an opening statement laying out any viable defense, as well as providing"a
closing statement for the guilt phase of trial that essentially gave away

the case to the State. Further, his closing statement for the punishment

phase was rambling, incoherent, irrelevant anecdotal presentation.

ERRONEOUS STIPULATION AND FAILURE TO CHALLENGE FINALITY

 

In Ground One of the- instant application, original memorandum, and herein,
1 have presented the issue of non-finality of a prior conviction used to
satisfy an essential juridictional element". "".Vanz‘ura's failure to investigate
that conviction and recognize the defects, and apply the law to assert a
viable defense due to the defects was ineffective assistance. Ex parte Giardler,

182 S.W.3d at 358 (ignoranoe of well defined laws and legal ocnoepts); lang v. State, 764 S.W.2d

_ Islas Reply F-z)101896-D~ wmc-l Page 12

30, 31 ('Iex. PW. - San Antcnio 1%9) (a stipllaticn that destroys a viable defense is not strategy).
A failure to investigate a prior conviction is deficient conduct if a potential
defense is ignored. lVbore v. Jd'nscn, 185 F.3d 244; 265 (5th Cir. 1999), cert. denied

120 S.Ct. 522 (failure to investigate prior conviction is deficient die to pote'rtial ciafense);
Vasql.ez v. State, 830 S.W.2d `948,' 951 ('lec. G:im. Ag). 1992)(unreasorsble condlct for attorney mt
to advance defalse recognized by'courts and statutes); Bladdourn'v. Fbltz, 828 F.2d 1177, 1181-82
(6th Cir. 1%7 )(an error of law is not reasonable strategy).

By failing to recognize the potential defense of non-finality that would
result in a lack of jurisdiction, ?Vanzura's conduct was unreasonably deficient.
His failure allowed a felony prosecution and conviction when a misdemeanor
conviction and punishment may only have been possible. Pen.(bde§49AIXa);Vasmrz,
830 S.W.2d at 951 (harm is satisfied by ccnvictic:n if other result prdoable but for attorney
ardxi). Although the challenged felony conviction satisfies the Sziddani
prejudice prong¢ the State argues that the stipulations entered on the defective
advice of counsel bar any challenge to a lack of jurisdiction. SWN p.5;(komd
l daemi If the State's argument is persuasive, then TVanzura's advice harmed
me by preventing the later submission of a claim upon which relief could
be based, although a showing of specific harm may not be necessary. §ZE§

v. lockhart, 851 F.Zd 1115, 1117 (8th Cir. l988)(errcneo.ls stip.]lation pres,rres preju§ice).
But for his advice, I would not have stipulated to the 1993 DWI conviction.

'Manzura's defective advice to stipulate to flawed evidence required
for jurisdiction, in combination with the resulting conviction, felony punish#
menti and any barrier to a later challenge on appeal of that evidence, should
be sufficient as a single error to demonstrate ineffective assistance. Thoqxrn,
9 S.W.3d` at 813; U.S. v. go£, 104 S.Ct. 2039, 2016 N. 20 (1984).

*Nanzura sat silently while the prosecutor elicited false police testimony
regarding the authorization to collect the evidentiary blood used so extensively

against me. At first a police officer testified that the TPF-5l order was

. lslas Reply F-2010-1896-D wmc-l cage 13

a warrant. RR7: p. 108, lines 16-25; SD< 35 - Mandatory Q:der. The characterization
of a "warrant" was deceptively corrected to be a form bearing "... that judge's
signature." RR7: p. 109, lines 2-3. The prosecutor and police officer knew,
or should have lmown, that no judge's signature appeared on the form and
that no space for a judge's signature is provided. Van Zura should have
known that as well had'he conducted a sufficient investigation of the evidence.
"Vanzura's failure tov object or challenge the police officer on cross
examination allowed the jury to believe a judge authorized the collection
of the blood, which more than likely allowed greater weight to'i be given to
the evidence, as well as greater confidence'in the veracity of the police
officer' s1 testimony as a whole. FR7: pp. 111-114 (Va'lzirfa cross'exa¢m_i;'rstio'l, silent
as to document challenge). :_;Vanzura did nothing instead of seizing a valid opportunity
to create reasonable doubt in the case against me. l
The deficient conduct and harm described above flow from an overall
failure to investigate my case and develop a firm command of the relevant
law and facts allowingf.-adequate adversarial testing of the case against me.

ITEM 6 -,STIPULATION

 

The State complains of a lack of specificity regardng the stipulation.
That assertion is illogical. Only one stipulation of evidence was made.
The defective evidence and my claim was~adequately presented in Ground One
of the original application and memorandum. 1 have made a further presentation
of the claims herein. Based on the original submissions, the State was able
to connect the dots to address the issue but elected to argue lack of detail.
SiAl p. 12 andN. 10. The State's main argument should fail: due to it's obligation
to apply the doctrine of Libera-l construction. Guidrcz v. Lynatgh, 852 F.2d 832,
834 (5th Cir. 1989); Bledsoe v. Jd'n')So'), 1% F.3d 250, 255 (5th Cir. 1999).

ITEM 7 -' CLOSING ARGUMENT

 

The theory asserted as a defense by Vanzrira". was that I was not the
"c:

. 4Islas apply F-2010-1898-D mic-1 page 14

driver of the vehicle. At closing, Vanzura destroyed that theory due to
his commentary on the State's evidence and admission that my conduct acknowledged
guilt.

The judicious selection of closing arguments is a core exercise of attorney
discretion. Yarboro.)gh v. Centry, 541 U.S. 1, 8 (20)3). A closing statement should
clarify the issues to be resolved by a jury. ldu m:6. The argument should
not contain statements that explicitly-admit guilt. U.S. v. S'\ort, 181 F.3d 620,

624-25 (5th Cir. 1999).

During Vanzurajs closing, he favorable commented on the State's evidence
admitted as STX 37. HU:;L XB. Referring to the police car dash-cam video,
Vanzura stated, "That's real great evidence." .Rl Giving such favorable weight
to that evidence by the defense does nothing to create reasonable doubt.

Vanzura then stated, "Okay. ~He took off because it's a third DWI." BR7:5» ZX&
This essentially is an admission of guilt to the jury and was not based on

any prior interpretation of evidence presented to the jury. The statement
effectively destroyed the defense theory of another driver.

Vanzura made other incorrect assertions to the jury regarding evidence
presentation. RR7: ;p. 205-06 (SD( 37 irtrodlced‘throlgh ml'ic?:e officer testimony). The
dash-cam video was not introduced via police testimony, the video was published
to the jury during the blood evidence testimony. IEU HR 15%60

During the closing, for the punishment phase, Vanzura attempted a rambling,
disconnected, irrelevant, and incoherent plea for leniency that did nothing
but create an impression of weakness and no viable defense. Sulmier\h Fegrids}
168 F.3d 1155, 1162 (l(]:h Cir. 1999)»; 858 ;p. 186-88. He cited a work written by deToqueville
in 1835, stating that criminals are generally unfortunate people, and then
told a story about an off-duty police officer killed while walking along
some railroad tracks and struck by a train. Alcohol was not involved.

In a totality of representation review, the closing statements made

Islas apply F-2010-1896-D wmc-1 rape 15

by Vanzura serve to demonstrate a lack of effort to truly subject the State's
case to any adversarial testing. This complaint is not based merely on.a
difference in wordingi but rather on the substance. GIIer\h Jdmr£n,]lO FLH
1098, 1113 (5th Cir. 1997, cert.' granted, remerded), m remand 131 F.3d 452 (5th Cir. 1997).
I'I‘EM 8 - TAMPERING .,;.

The State has once again incorrectly stated that l am challenging blood
evidence admissability based on tampering and including that challenge as
part of the ineffective assistance claim. SBL p.l3 In supportl the State
directs the Court to the original Wbmorandum at page 9. That reference in
no way implicates an ineffective assistance claim and is contained as part
of my original argument for Ground Two. That is facially obvious and does
not support the State's disengenuine, bad faith representation related to
my ineffective assistance claim. This aspect of the State's defense to Ground
Three should be disregarded.

CONCLUSION

 

 

Vanzura's trial representation fell below the reasonableness presumed
for attorney performance. As demonstrated above, harm resulted or may be
presumed to have occurred. l once again request that Vanzura be ordered
to adress this allegation and that I be-providedcopiesof any affidavit or
other submissions at the time they are provided to the Court.

This conviction should be vacated due to the ineffective assistance
of trial counsell `.

IV. .APPEAL` CUJNSEL RH\IDHZED INEFFECI'IVE ASSISTANCE

 

Appellate counsel failed to identify and submit meritorious issues to
the Court, or advise me of the existence of any such issues for my consideration

or presentation later.

", t .'_":'_ . ',_ ’: '~_ " ` ' '.-'-~".r;

_ Islas Rq)ly ` F-2010-18%-D v\HZ-l Page 16

l' have previously requested that counsel be ordered to submit an affidavit
to address this issue. The State did not propose any findings or conclusions
regarding the effectiveness of appellate counsel's representation. (see St.
wsm ara apprised Finairps, c@rplusias, mrsiips ms 15, 16 ana capllsim-Ns. 4), Hab. ppgi
Ground 4.

STANDARD OF REVIEW

The denial of a meaningful appeal due to the ineffective assistance of
counsel is a cognizable habeas claim. Clivo v. State, 918 S.W.Zl 519, 522 N. 8 ('llex.
Crim. Agp. 1996). The two-prong S;rickland` test applies to this claim. M
Phi111ps, 210 F.3d 345, 348 (5th cir. 2000); Rsis v. csrtemsn, 522 F.3d 517, 531 (5th cir.

3108, cert. dei'd). The applicable standard of reasonableness requires that
while not every non-frivolous ground be raised, meritorious grounds solidly
based on law..and precedent should be presented.4 Phi]lips, 210 F.3d at 348; E'S_,
522 F.3d at 532; Arre`dor v. Quartermen, 458 F;3d 397, 410 (5th Cir. 206 cert. den'd): Mn;s_
v. Smith, 528 U.S. 259, 285 (20(!)).

The State incorrectly asserts that I must demonstrate that but for counsel's
failure, l would have prevailed on appeal. EHA, p. 14. Prejudice is demonstrated
by showing that, but for counsel's failure, the' probability of a".dif'ferent
result exists. Smith v. Robbirrs,v 528 U.S. 'at 285; Fhillips, 210 F.3d at 348; M, 458
F.3d at 411'.

RIGHT TO COUNSEL

l had the right to effective assistance of counsel for appeal. lrnbard
v. Lynaugh, 868 F.2d 1475; 1479, 1485 (5th Cir. 1989); league v. Scott, 60 F.3d 1167, 1170 (5th Cir.
1995).

ARGUMENT

ITEM l - FAlLURE TO RAISE LACK OF FINAL`ITY OF PRIOR CONVICTION

 

The 1993 conviction pled in indictment elevation paragraph one was necessary

element of the offense alleged as a felony. see Ag>licant'sm‘em. of law, G:omd 1;

Islas Feply F-2010-1896-D VsHC-l Fage 17

Pen. m 49.09(b)(2); State»v. Mewbolrn, 993 S.W.2d 771, 772 ("Dex. App. - 'lyler 1999); Barfield

'v. State, 999 S.W.2d 23, 24 (’Iex. Dpp. - Pbustcn [14th Dist.] 1999). Without proof of

the finality of that conviction, the trial court was deprived of jurisdiction
of the case. Code Crim. Proc. art. 4.057'1Vewbourn, 993 S.W.2d at 772; Barfield, 999 S.W.Zi

at 24N. 1. On appeal, the failure to prove two prior convictions requires
acquittal or a modification of the judgment and a new punishment trial. Barfield,
999 s.w.zd ar 26; Reyes v. State,~ 394-s.w.-3d 809i 812 ('iex. ppg - pnm-1110 2013); Lurdgren

v. Statei 436 S.W.3d 399, 400 ('Iex. App. - Et. Wo:'th 2014; Wbsquia v. State, 936 S.W.2d 714,
"m('Iex. ppg-Ft. mrth1996).

A lack of jurisdiction by the convicting court would render any punishment
imposed illegal as not being authorized'by law., Ex parte Pena, 71 S.W.3d 336, 339
(iex. crim p@. 2002)("111egel" defined es mt minimized by ls»); mizell v. state 119 sw.3d
804, 806 N. 7 ('Iex. Crim. App'. 2303). Relief from an illegal sentence may be obtained
by direct appeal or collateral attack. M, 119 S.W.3d at 806; _Pel;)a, 71 S.W.3d
at 339and N. 1. Jurisdictional claims are not waivable and a district court's
jurisdiction in the instant case is only had when the felony predicates are
satisfied. Miller v. State, 939 S.W.2d 586, 592 ('Iex. Ppp. - Austirr:1995)(jurisdictio'1a1
matters mt »eiveldle_); code crim Prec. art. 4.05; wewbdim, 993 sw.zd et 772.'

Appeal counsel failed to recognize the defective judgment the State
claims proves finality of a conviction required as a jurisdictional element.
The failure of counsel to present the issue was conduct that was not reasonable.
The issue is arguable in- statute and precedent and would require a different
result from the appeal court. Fletcher v. State, 214 S.W.3d 5 ('lex. Crim. P;p. 2007)(at
8 - no harmless error analysis.reqdired; at 9 - proper reredy is reversaland remand); M
v. Robbins, 528`U.S. .at 285. Counsel failed to adequately develop a command of
the law and precedent to properly apply that knowledge to the circumstances
supporting this issue and make an informed decision on its merits. _U.S._v.

Phillips, 210 F.3d at 348 (reaso'!ableness starr;lard); Eb<_parte Ybarra, 629 S.W.2d 943, 946 ('Iex.

isles Peply F-2010-1898-D wit-1 ' Pege 18

Crim. App.'. 1982) (effective assistance reqlires firm command of facts ard law, thcxolgh investigation
is fcundaticn of effective assistance); Elx parte Giandler, 182 S.W.3d 350, 358 ('I\ex. G:iln. App.
2005) (ignorance of mall-defined statutes, general laws, cr legal p:qacsitio"ls not excusable).

Counsel's failure '1 fha"s:- prejudiced me by failing to present a juris-
dictional error'upon which relief would be required if proven true. The felony
sentence imposed is illegal if the jurisdictional`§ error only allowed for
a misdemeanor sentence at the time of trial. l
ITEM 2 - FAILURE 'I‘O CHALLENGE ADMISSABILITY OF'BLOOD SAMPLE EVIDENCE BASED

ON MCNEELY

The U.S. Supreme Court rendered it's decision in D/ti\leely on April 17,
2013, during the pendancy of my appeal) which concluded on September 29, 2014,
over one year~later. Although the length of the appeal review period was
directly due to further proceedings regarding admissability of the blood
sample evidence due to police misconduct, counsel failed to also challenge
admissability based on the illegal seizure of the evidence. see Ag)licant's
P/En. cr law, G':oind 2.- This failure was unreasonable due to the extensive use
of the blood evidence at trial'. SIX'- 397 RR7 pp. 138-159. Further, the collection
of the blood sample was decep_.t?:i’v;e“ljy mischaracterized during testimony elicited
by the State from a police officer. P§plioant's Mem. of law, p. 7; RR7: pp. 107-109.
lt cannot be said beyond a.reasonable doubt that the use of the blood evidence
did not significantly contribute to the jury verdict. -Had my trial counsel
raised the constitutional claim allowed by ,I‘/bNeely, it is more than probable
that a new trial would be required.

The State claims that it is "unclear" whether or not MiNeely could have
been applied retroactively, citing only one case from a different state to
support this lack'of.clarity. see SHA,Jp. 15. The greater weight of precedent

relevant to a 'Dexas conviction clearly establishes that I was entitled to

the application of leNeely~ to the appellate review of my conviction. Danforth

isles Peply F-2010-1896-D mic-1 Pege 19

v. Minresota, 552 U.S. 264 128 S.Ct. 1029, 1032 (2£!)*); Wnartoi v. Bccking, 549 U.S. 4C6 127
S.Ct. 1173, 1180 (2(07); State v. Esher, No. 05-14-00694-CR, 2015 'Iex. App. LEX_`[S 7722 ('Iex.

Ppp. - Dallas 7/27/15, m pet. ); Allen v. leed, 427 F.3d 767 (10th Cir. 2CD5)(at 770 citing
Griffith v. I<entud<y,' 479 U.S. 314, 322 (1987), aid rleague v. lane, 439 U.S. 288, 310 (1%9).
The State's assertion has little merit. Had my appeal counsel successfully
presented the clearly meritorious claim pursuant to §§§§§y, a different result
for the appeal proceedings would have resulted. Instead, counsel failed

to adequately challenge the admissability of the blood evidence and deprived
me of the review of the constitutionality of the blood evidence used against
me at trial, contrary to my right to due process and a fair trial.

Although§§§e§§:was decided during my appeal, it should be noted that
a Texas appeals court decided in 2011 that the Transportation Code does not
authorize what the U.S. Constitution forbids. State v. lvbsely, 348 S.W.3d435, 442
(iex. ppg - pistin 2011, pet. ref'd).

CONCLUSION-'

The successful presentation of either issue described above would have
resulted in a different appeal outcome. 'Either issue outweighed appeal grounds
one and two selected by counsel.v 1

I request that counsel be ordered to address this habeas issue by affidavit,
with a copy provided to me when it is submitted to the Court. I object to
the State's Proposed Findings and Conclusions as contrary to the record and
because the appeal attorney has not been afforded an opportunity to address
this claim.

III. CDNCLUSION

This conviction is based on a trial and appeal conducted in a manner
that does not allow for a presumption of reliability in the result. The
conviction should be vacated. I pray that the Court consider my objections l

to the proposed findings and conclusions, order the attornies to address

§

isles nep1y F-2010-1896-D wic:-l

the claims of ineffective assistance, reject the State's original proposed
findings and conclusions, and provide all relief allowed by law or previously
requested.

IV. ADDITIONAL OBJE(,'I‘ION

 

On November 20, 2015, 1 received a copy of the ORDER dated October 29i
20151 adopting the State's proposed findings and conclusions. The envelope
was postmarked November 16, 2015. 1 object to this untimely notification
of the ORDER, for which there is no good cause.

1 continue my previous objection raised herein and request that this

case be remanded for further consideration.

reviews

BRANDON ISLAS

Applicant Pro se

TDCJ-ID# 1810458

Thomas J. Goree Unit

7405 Hwy. 75 South
Huntsville, Texas 77320-3405

Rge 23

