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CQURT oF chPmNAL APPEALS
SEF> 14 2835

CAUSE NO.1056657

Ex PARTE A. v
_ § IN THE COURT oa{@@lA©@S€@,@§@T%-§

ROSALI BoNILLA

V § cRIMINAL APPEALS

STATE oF TExAs ` § OF TEXAS

APPLICANT'S OBJECTION TO THE

STATE'S PROPOSED FINDING OF FACT;

CONCLUSION OF THE LAW AND OERDER.
ATO THE HONORABLE JUDGE OF SAID COURT,
NOW COMES ROSALI BONILLA and humbly submits this his objection
to the State's proposed finding of fact,conclusion of the law`

and order. In support of his claim,Applicant submits the followi-
ng.

I

On January 26,2015;Applicant filed his application for a writ
of habeas corpus pursuant to Article ll.O7. On february 10,2515
the State submitted their Reply to applicant's application for
a writ of habeas corpus and also submitted a Motion Requesting
Designation of issues. In whichh the State proposed that the
following issues be resolved in the instant proceeding:

!. whether the applicant was denied a fair trial due to prosec-

utorial misconduct,

2. whether the applicant was denied effective assistance of

counsel. d v `

The applicant has shown this Honorablwe Court that the above
mention issues has been proving true by the record and;the prose-
cutorial misconduct claim has been proven by the Affidavit that
was submitted by Mrs.Fuentes. In which she clearly stated that
she did not have any chioce,but to testified against Mr.Bonilla
or the D.A. wilould had put her mother in jail. This was a clear

violation of Bonilla's Sixth Amendment right to a fair trial.

The prosecutor's duty in a criminal prosecution is to seek
justice. Therefore,the`prosecutor should "prosecute with earnest-
ness and vigor" but may not use "IMPROPER METHODS CALCULATED to
produce conviction as in this case at bar.

Mrs.Fuentes stated in court and in her affidavit that she did
not wanted to be in court and that she was forced by the police
to come to court and testified. See Exhibit (a) submitted with
the application and the brief in support of the same.

These officers went to Fuentes's apartment handcuffed her mother
and ordered her to get ready you're going to court. The officers
threatened her mother with disrespect and frighting scared words.
Fuentes was afraid for her and her mother. The D.A. also told
her to participate or your mother is going to jail. After this
treatment by the police and the D.A. How a young woman is supose
to react to this horrible situation ? See Exhibit (a) Mrs.Fuente-
s's affidavit.

Past decision of this Court demonstrate that the touchstone of
due process analysis in case of alleged prosecutorial misconduct
is the fairness of the trial,not`the culpability of the prosecut-
or. Prosecutorial misconduct may so infect the trial with unfair-
ness as to make the resulting conviction a denial of Due Process.

[P]rosecutorial misconductn§§'be so exceptionally flagrant that
it constitutes plain error,and is grounds for reversal even if
the defendant did not object to it. See U.S. V CARTER 236 F3d
777,780 (6th Cir ZOOl).

Under the plain error doctrine,we must searé§h for an actual
miscarriage of justice,which implies the conviction of one who
but for the error or actions of the prosecutor,would have been
acquited. See RODRIGUEZ V SCILLIA 193 F3d 913/918.

The State in their proposed finding of fact,coclusion of the
law and order,states that a child victim in a sexual assault cas
se does not have a privilege against testifying in a criminal tr-
ial. But what the State doesn't mention is that the child cannot
be forced,coerced or threatened either. Even a child under seven-
teen years old have a constitutional right to plead the Fifth

Amendment. The State claimed that (l) in all things the applicant

 

fails to show`that his conviction was improperly obtained. Bonil~
la has proven this issue - See Fuentes's affidavit. 7

(2);The State also claimed that applicant fails to show he was
denied effective assistance of counsel. Mr.Bonilla has explained
his claim in details on his support brief for the application
of writ of habeas corpus Art.ll.07. In short,

I

Trial counsel waived his opening statement which deprived the
jury of on explanation as to what the defense would be and compo-
unded with other werror constituted ineffective assistance of
counsel. The jury was blind folded to the defense theory without
the counsel's opening statement. The opening statement is one of
the essential elements in a criminal trial. In this particular
case/counsel could have explained his defense theory and the
state of mind that Bonilla was at the time of the offense.-Unfor-
tunately,the jury and Bonilla were deprived of this opportunity
to be educated of the defense theory and perhaps the opportunity
to have the jury really considered a lesser sentence.

II

Trial counsel failure to move for mistrial and object to Fuente-
s's forced and coerced testimony deprived defendant of a fair
trial. ‘

Trial counsel should have objected to the prosecutor's actions
to forced a witness to the courtroom. By not objecting to the
state's actionsshows a clear abandonmenti of the Sixth Amendment
right by the trial counsel. At the very least,counsel should have
ask for a hearing without the jurors present and present to the
court an argument based on the witness's Fifth Amendment rights
and Bonilla's right to a fair trial.

` PRAYER

WHEREFORE,APPLICANT PRAYS THAT THE COURT GRANT HIM THE RELIEF

TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

$:[jQQL/2015 RESP TF SUBMITTED

  

   

/s

PRO SE.

