                                                                      WR-58,474-02
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
      July 1, 2015
                                                       Transmitted 6/30/2015 4:38:57 PM
                          No. WR-58,474-02                Accepted 7/1/2015 8:10:31 AM
                                                                         ABEL ACOSTA
                                                                                 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN

                     Ex parte Alberto Rodriguez
                              Applicant

On Petition for Post-Conviction Writ of Habeas Corpus Pursuant
to Article 11.07 § 3, et seq., C.Cr.P., in Case No. 700071 in the
              178th District Court of Harris County


                     Motion for Rehearing

TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

     COMES NOW, Alberto Rodriguez, Applicant, by and through

David A. Schulman and John G. Jasuta, his undersigned

attorneys of record, and respectfully files this motion for rehearing,

and would show the Court:

                          Procedural History

     On April 5, 2011, Applicant filed his second application for

post-conviction writ of habeas corpus, alleging that: (1) the juvenile

and trial courts lacked jurisdiction due to inadequate service in

the juvenile certification proceeding; (2) trial counsel rendered

ineffective assistance; and, (3) appellate counsel rendered

ineffective assistance.
     The State submitted a proposed order designating issues on

April 25, 2011.     The habeas court timely entered its order

designating issues on May 19, 2012.

     On September 21, 2012, the habeas court conducted an

evidentiary hearing on Applicant’s allegation of a jurisdictional

defect. During that hearing, the parties submitted a set of agreed

facts.

     Applicant submitted his proposed findings of fact and

conclusions of law on October 25, 2012. The State did not submit

its proposed findings and conclusions until December 23, 2013

(HCR 125). Applicant filed objections to the State’s proposed

findings on February 3, 2014 (HCR 181).

     On June 23, 2014, the habeas court adopted the statement

of agreed facts submitted by the parties during the hearing

conducted on September 21, 2012; made its own findings of fact

and conclusions of law; and ultimately recommended that this

Court grant relief on Applicant’s first and third grounds for relief,

and deny relief on Applicant’s second ground (HCR 189).




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    On June 17, 2015, this Court issued its opinion. Ex parte

Rodriguez, _____ S.W.3d _____ (Tex.Cr.App. WR-58,474-02; June

17, 2015). Applicant would respectfully show the Court that it has

placed a burden on juvenile defendants and practitioners that has

never previously been found in the law, and has reached the

wrong result. Additionally, the Court failed to address Applicant’s

third ground for relief.

         Arguments in Favor of Reconsideration

    In its June 17th opinion, the Court correctly recites the fact

that the summons to the certification hearing of August 1, 1995,

was served afer the fact of the hearing and did not refer to any

other date. The Court correctly states that no record from these

hearings exist. Nevertheless, the Court states that the certification

issue was tried, without there being any support for that assertion

in the habeas record.

    Ultimately, however, the Court’s decision rests on the

unspoken premise that the facts in this case show that the service

was essentially proper with only a “defect,” or two. This unspoken



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ruling is neither supported by the law nor the facts, and flies in

the face of decades of contrary case law.

        The Court’s ruling acknowledges that the law of the area of

minors and waivers of their rights with regard to juvenile

proceedings was well defined, and yet the Court ignores those very

cases. The Court wrote, “we and our sister court have also held

that the juvenile cannot waive the service of the summons for the

transfer hearing, even if the juvenile attends the transfer hearing.

These holdings are in accordance with the common-law rule that

a minor does not possess the legal capacity to waive service of

summons, nor can anyone waive it for him.” Rodriguez, slip op.

at 6.

                  Service versus Defect In Service

        An important part of the Court’s ruling is a re-writing of the

law to hold that the failure to comply with the absolute

requirements of Family Code § 54.02, such as the requirement for

service two days before the hearing, can be a mere defect of the

mechanics of service instead of an abrogation of a statutory

requirement. Rodriguez, slip op. at 8. When taking this “about


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face,” the Court ignores both its own holdings and those of its

sister Court, the Supreme Court of Texas, both of which have

routinely held that a deviation from the statutory requirements

deprived the juvenile court of personal jurisdiction over the

juvenile.

    The facts of this or any other case are immutable. The law in

effect at the time of an offense, should, similarly, be immutable.

Between the time of the offense and the day immediately prior to

the Court’s June 17th opinion, the law was likewise immutable,

and correctly interpreted by the habeas court, but no more.

    The failure to properly serve Applicant, as admitted by the

State and this Court, and as demonstrated in the record and

found by the convicting / habeas court, deprived the juvenile

court of jurisdiction from that point onward. The juvenile court

did not have the power to hold court on Tuesday, August 1, 1995

(“Tuesday”), without proper, and timely, service, and this did not,

and could not, have happened. Any order which this Court might

care to add to the list of its speculations as an action which might

have “continued” the hearing until Friday, August 4, 1995


                                 5
(“Friday”), would have been worthless, because it would have been

entered without any jurisdiction. In essence, there was no hearing

to continue.

    This is not a case of proper service, as the timing was a part

of that equation, and the summons involved was not timely served.

There was never a hearing on Tuesday because Applicant was not

served with service complying with the statutory requirement of

two days notice, and the summons which was untimely served on

Tuesday did not and could not serve as notice to a Friday hearing.

Moreover, there is no showing of any other service of notice of a

hearing to be held on Friday. The defect was not in the failure to

serve the “notice” until almost two hours after the “hearing”

commenced, it was in the failure to give the required two days of

notice.

    The habeas court’s findings and recommendation correctly

view the law in effect, the failures of the State in effecting

jurisdiction over the juvenile, and the consequences of those

failures under the law. Those findings are supported by both the

law and the facts and, according to its own long standing


                                6
precedents, this Court should accept them and not re-write both

history and the facts to reach a contrary result.

                            The Burden

     The Court holds that an applicant, in order to obtain relief

from a “defect of service” on collateral attack, the record must

affirmatively show the absence of jurisdiction. The Court then

neglects both the existing case law and the facts in deciding the

question   and,    specifically   as   to   this   case,   creates   an

insurmountable burden, heretofore unknown in the law. That

there is no record which can be produced by either Applicant or

the State is, in effect, being held against Applicant despite the fact

that the making, and keeping, of that record was entirely out of

his hands -- and that Applicant raised the “no jurisdiction” claim

at issue in this (“-02”) application years earlier, in his “-01”

application.

     That the Courts or the State, either of which could have easily

secured the record when Applicant’s “-01” application was first

presented, are not assigned any burden or responsibility

whatsoever is clear. Given that the Court used the misplacement


                                  7
of the record as the basis for denying relief, it is unclear why the

Court has placed the burden entirely on the one person who had

no control over the record, when it was the State and its agencies

who exercised control over the record, and who had the earlier

opportunity to produce the record.

    While requiring the record to affirmatively show lack of

jurisdiction, the Court ignores the facts of the case, when it fails

to acknowledge that any service which was had, defective or not,

was insufficient under the case law to confer jurisdiction over

Appellant in the juvenile court. The record affirmatively shows the

lack of jurisdiction under the law and nowhere in that record is

there any showing to contradict or alter that status. The Court

admits as much in the opinion. By any measure of the law prior

to the Court’s June 17th opinion, Applicant has met his burden.

    By failing to properly address the failure of the service it

admits was inadequate to confer jurisdiction, and the failure of the

State to properly maintain records it was required to maintain, the

Court ignores its duty to respect the law and the facts. To require

Applicant to prove the negative, that the State did not at some


                                 8
point between Tuesday and Friday, properly serve Applicant in

such a manner as to acquire jurisdiction, a literal impossibility, or

that he properly waived service of proper and binding summons

service by re-labeling the defect such that a minor would be

capable of understanding the difference and make a proper waiver,

is an abdication of the Court’s duty to the law.

    Instead of the record, upon which reliance cannot be had due

to no fault of Applicant whatsoever, the Court relies not only on a

complete abandonment of the law of service on a juvenile, but on

rank conjecture.
    While service of the summons was defective, applicant might have waived
    any defect in service on the record at the hearing on either August 1 or
    August 4, and the reporter’s record showing a waiver may no longer exist.

Rodriguez, slip op. at 12 (emphases added).                 Any such waiver

had to meet strict guidelines under Family Code § 51.09, which

this Court seemingly accepts, the memorialization of which was

entirely the duty of the State and its agencies. Nevertheless, this

Court rejects any requirement of a record except as maintained by

Applicant, and faults Applicant for not being able to produce that

record to prove the negative, all in one surmise, without one fact


                                       9
upon which to rely. This Court is not applying the proven facts to

the law, as did the habeas court.                    It is, instead, applying

conjecture to re-written law in an effort to deny the requirements

of the law in existence at the time.                The Court completes its

journey through fancy with its statement,
     The possibility exists that applicant was served during the August 1 hearing
     and waived the lateness of service on the record at that time. The more
     likely scenario, however, appears to be a waiver on August 4, given the
     docket-sheet entry for that date that any further notice was waived by
     respondent. This entry may relate to a waiver on the record at the August
     4 hearing of defects in service.

Rodriguez, slip op. at 13. These three sentences expose the very

basis of the Court’s decision as nothing more than speculation.

     The Court states that the Tuesday, August 1 hearing was

reset, Rodriguez, slip op. at 13, but this does not accurately state

the record, nor does it accurately state the law.1 The event of

Tuesday, August 1, 1995, a proceeding without jurisdiction under

the law, has not been shown on the record to have been reset.

Rather, it was terminated so that proper service of summons could

be had. Succinctly stated, under the law as stated in the petition


 1
   This also seems to be contradictory to footnote 50, Rodriguez, slip op. at 14-
15, which states that the record does not establish why the hearing was
rescheduled.

                                         10
and the briefs before this Court, there was ineffective service of

summons as to the August 1 event; that attempt did not give

notice as to August 1, there is no record “reset” of the August 1

hearing until August 4 -- even if there was a valid hearing to reset

-- and the record does not show any service whatsoever to the

hearing on August 4, 1995.

    By its failure to grapple with the failure of any attempted

service to comply with the requirements of the law, and the failure

of the record to show any proper invocation of jurisdiction over

Applicant,   the   Court's   attempt    to   avoid   the   law   by

mis-characterizing the mistakes as mere defects in the service

ignores the law. Instead, the Court places the burden on the

Applicant to preserve a possibly non-existent record of proceedings

which were required by statute to be on the record, and to

demonstrate that the record would not show that which never

happened, proper service of summons or proper waiver of such

service.




                                11
    There is truly no way the Applicant can demonstrate that the

speculation engaged in by this Court is false, speculation in which

the Court engages after rejecting Applicant’s own speculation:
    This surmise on applicant’s part is not sufficient to affirmatively show that
    a proper waiver did not take place. Even with a waiver, the juvenile court
    may have thought it prudent to satisfy the two-day notice rule by delaying
    the hearing to August 4, or applicant or his attorney may have insisted on
    the two days as a condition of executing the waiver. Or the hearing may
    have been rescheduled to August 4 for reasons unrelated to the lateness of
    service.

Rodriguez, slip op. at 14. The bottom line is that everyone is

speculating because the record cannot be produced, neither by

Applicant nor the State. Perhaps the Court should speculate as

to whether, had the State made an effort to find the record when

this contention was first raised in the “-01” application, and at a

time when the State had both an opportunity and duty to respond,

and prior to this Court’s dismissal of that application and the

jurisdictional issue, the record would have been now been

available.

    The State, of course failed in its duty to respond in detail to

Applicant’s “-01” application, the habeas court failed to ensure a

complete record adequately supporting its recommendation to

deny relief accompanied that recommendation, and this Court

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chose to dismiss on a procedural point eschewing timely

resolution of an allegation questioning the jurisdiction of the Court

of conviction. If either the State or the habeas court had done its

duty under the law at the time of the “-01” writ application,

speculation might not be necessary, as the record would be in the

Archives. Instead, Applicant is made to pay for those failures, over

which he had no control.

       The Court’s opinion of June 17th is rife with speculation and

assumption, as well as misplacement and misunderstanding of the

burden placed on Applicant. It was not he who was in charge of

the record, which the Court speculates was produced,2 but it is he

who must suffer. This despite his sworn statements that there

was no service and that he made no waiver. Only by producing

the record, over which Applicant has no power, and which the

State cannot produce despite its duty to preserve that record, can

Applicant overcome the speculation in which the Court engages.




 2
     See Rodriguez, slip op. at 14 (FN 47).

                                       13
The Court has truly set an impossible burden and, in so doing,

has itself denied Applicant due process of the law.3

      The Court has held that the findings and recommendations

of the habeas court should be accepted when they are supported

by the law and facts developed. Ex parte Navarijo, 433 S.W.3d

558, 567 (Tex.Cr.App. 2014); Ex parte Weinstein, 421 S.W.3d

656, 664 (Tex.Cr.App. 2014). It is true that when an independent

review of the record reveals that the trial judge's findings and

conclusions are not supported by the record, the Court may

exercise its authority to make contrary or alternative findings and


  3
      Compare the burden imposed in this case with the outcome had the
jurisdictional issue been properly raised on appeal and any part of the record,
including the juvenile certification hearing, “gone missing” at the time of that
direct appeal. The Court, citing to Dunn v. State, 733 S.W.2d 212 (Tex.Cr.App.
1987), wrote:

      It has long been the rule in this State that "[w]hen an appellant, through no fault
      of his own or his counsel's, is deprived of a part of the statement of facts which
      he diligently requested, the appellate court cannot affirm the conviction.
      Austell v. State, 638 S.W.2d 888, 890 (Tex.Cr.App. 1982). See also Gamble v.
      State, 590 S.W.2d 507 (Tex.Cr.App. 1979); Timmons, supra, at 512; Pierson v.
      State, 147 Tex.Crim. R., 177 S.W.2d 975, 976 (1944); Navarro v. State, 141
      Tex.Crim. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing);
      and now also Tex.R.App.Pro.Rules 210(a) and 50(e). Further, this rule has been
      applied whether all or only a portion of the statement of facts was omitted. See
      Austell, supra (voir dire examination); Gamble, supra (final arguments during
      guilt and punishment before the jury); and, Hartgraves v. State, 374 S.W.2d 888,
      890 (Tex.Cr.App. 1964) (hearing on motion for new trial).

Harris v. State, 790 S.W.2d 568, 574 (Tex.Cr.App. 1989).

                                             14
conclusions. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim.

App. 2008). In the present case, the habeas court’s findings are

completely supported by the habeas record developed by Applicant

and the State. Only by re-writing the facts to amend the record to

encompass rank speculation can the Court reject those findings.

Unfortunately, the Court has done just that.

    The habeas court heard the facts over a protracted period of

time and, after due consideration of the law and the facts, and

without resort to any speculation whatsoever, found that Applicant

was never served with summons, that the juvenile court lacked

jurisdiction, and that Applicant is entitled to relief.     Only by

rejecting the facts as found, only by rejecting the law as it was in

effect and re-writing it to fit the situation at hand, and only by

engaging in absolute speculation about what might have been, can

the Court’s opinion be validated.

                   The Opinion Is Incomplete

    The Court’s opinion of June 17th disposes of Applicant’s

jurisdictional arguments by re-casting the failure of summons as

a “defect in service,” as opposed to a failure of service. The point,


                                 15
not having been raised on direct appeal, was treated as a collateral

attack and the rules altered with regard to the review. The Court,

in so doing, avoided the third allegation raised by Applicant in his

application, for which the habeas court had recommended relief

be granted. The Court’s action, however, demonstrates the truth

both     of   the    third   allegation    and   the   habeas   court’s

recommendation to grant relief on that ground.

       In that allegation Applicant contended that his appellate

counsel was deficient for failing to raise, as a point of error on

direct appeal, the juvenile and trial courts' lack of jurisdiction.

Applicant extensively argued the juvenile and trial courts' lack of

jurisdiction    in    the    instant     application   and   supporting

memorandum under his first ground for review and referred to

those points in the third ground for review, alleging ineffective

assistance of appellate counsel for this very failure.

       The facts establishing this point of error are clearly reflected

in the record and were available to appellate counsel on direct

appeal. Further, appellate counsel would have been permitted,

under the law, to raise this point of error on direct appeal, despite


                                    16
the fact that it concerned a transfer from juvenile court. See In the

Matter of D.D., 938 S.W.2d172, 174 (Tex.App. - Fort Worth 1996),

wherein the Court of Appeals discusses the applicability of Article

44.47(d), C.Cr.P.    The lack of a record would have had very

different ramifications, none of which would have subjected

Applicant to a requirement that he produce that record or waive

his error.

    Those rules which require a timely and specific objection,

motion, or complaint, do not apply to “absolute systemic

requirements,” and failures of jurisdiction of the person and

jurisdiction of the subject matters are such errors do not require

an objection. See Alrich v. State, 104 S.W.3d 890, 895

(Tex.Cr.App.2003), citing Marin v. State, 851 S.W.2d 275, 280

(Tex.Cr.App.1993).

    The third allegation raised within the application, and for

which the habeas court recommended relief, discussed prejudice,

even prior to this Court’s opinion in this case which absolutely

establishes the prejudice.    While it could formerly have been

argued that appellate counsel’s failure to raise a jurisdictional


                                 17
error, i.e., one which can be raised at any time, even during

habeas review, demonstrated that counsel’s failure was harmless

due to the lack of waiver, that argument can no longer be

supported. The harm flowing from the ineffective assistance of

appellate counsel is easily seen in the reflection of this Court’s

opinion.

    Following this Court’s opinion, it is clear that appellate

counsel’s failure condemned Applicant to a life of incarceration.

But for appellate counsel’s error in failing to raise jurisdictional

grounds on appeal, there is a reasonable probability that the

appellate court would have vacated the judgment and remanded

the case to juvenile court. See Light v. State, 993 S.W.2d 740,

750 (Tex.App - Austin 1999).

    The Court’s opinion of June 17th makes it abundantly clear

that the failure to raise the jurisdictional issue, which this Court

plainly recognizes, in a timely manner resulted in rejection of the

claim on habeas corpus. In doing so, this Court has accepted that

harm flowed from counsel’s failure. This Court should re-hear the

case, in a complete manner, and dispose of each of the habeas


                                18
court’s bases for its recommendation to grant relief. The failure to

do so denies Applicant a full and complete review of the

application he filed as well as the rulings, findings and

recommendation of the habeas court, and, in so doing, denies

Applicant due process of law.

                           Conclusion

    The habeas court’s findings and conclusions are more than

adequately supported by the record, unless one re-writes both the

law and the facts to include speculation, and imposes an

impossible burden on the Applicant. The habeas court’s findings

and recommendation do not rely on the placement of an

impossible burden on the Applicant of proving a negative by

production of a record in the care of the State which the State

admits it cannot produce. The habeas court’s findings rely on the

record produced during the habeas proceedings during which the

State had ample opportunity to rebut the sworn allegation of

Applicant, and they should be followed.

    Additionally, the habeas court’s recommendation to grant

relief is still before the Court without resolution, albeit acceptance

                                 19
of the allegation of ineffective assistance of counsel. This Court

should rehear and/or reconsider the merits of the case and fully

consider all of the bases for the habeas court’s recommendation

to grant relief.

                              Prayer

     WHEREFORE, PREMISES CONSIDERED, Applicant and the

undersigned respectfully pray that the Court will reconsider its

action of June 17, 2015, vacate its written Opinion of that date,

and accord Applicant the relief recommended by the habeas court

and which the habeas record reflects is appropriate.

                      Respectfully submitted,


_______________________________    ________________________________
John G. Jasuta                     David A. Schulman
Attorney at Law                    Attorney at Law
lawyer1@johngjasuta.com            zdrdavida@davidschulman.com
State Bar No. 10592300             State Bar Card No. 17833400

               1801 East 51st Street, Suite 365-474
                    Austin, Texas 78767-0783
                       Tel. 512-474-4747
                       Fax: 512-532-6282

                   Attorneys for Alberto Rodriguez



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         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 3,836 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

June 30, 2015, a true and correct copy of the above and foregoing

“Motion for Rehearing” was transmitted to Lori DeAngelo

(deangelo_lori@dao.hctx.net), counsel of record for the State of

Texas, via the eService function on the State’s eFiling portal.



                            _____________________________________
                            John G. Jasuta




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