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                                                                                                                                                    ----------~-f~
    SIIAIWN KELLEH                                                                                            AIIEL ACOSTA
      !'RESIDING JUDGE                COURT OF CRIMINAL APPEALS                                          I
                                                                                                                   CUli\K
                                                                                                                ()12)41>J·I~SI
                                            P.O. 130X 12308, CAPITOL STATION
    LA WHENCJ~ E. MEYEHS
    CIIEHYL .IOIINSON                              AUSTIN, TEXAS 78711                                       SIAN SCJJII.IIAII
    MIKE KEASU:I{                                                                                            GENERAl. COJJNSI(I.
                                                                                                                (~12)41>)-1600
    HAIWAHA 1'. IIEHVEY
    ELSA ALCALA
    HEHT RICIIARDSON
    KEVIN 1'. YEARY
    DA VII) NEWELL
     JUDGES




     . July 23, 2015

      Gerald W. Mitchell # 1608296
      Robertson Unit
      12071 FM 3522
      Abilene, TX 7960 I


       RE: Trial Court Case #1175727-A


      Dear Mr. Mitchell:

      After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus
      filed in the Court of Criminal Appeals at this time. If you have any further questions or
      concerns, please direct them to the District Clerk in the convicting county where you originally
      filed the application.

      I am herewith returning your documents.




      AA/kd     (
      Enclosure


                           SUPREME COURT BUILDING, 201 WEST 14TH STREET, ROOM 106, AUSTIN, TEXAS 78701
                                             WEBSITE WWW.CCA.COURTS.STATE.TX.US



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         EXPARTE                                                                        In The 174TH District
         Gerald Wayne Mitchell                                                          _Court Of
         Applicant (Pro , Se)                                                           Harris County, Texas
                                                                                        RE: 'Cause
                                                                                            ,,     -No. 1175727




                                              Applicant's Objection Tb The State's
                                            Original Answer And Findings Of Facts And
                                                  Conclusion Of Law, And Order


                   To the Honorable Judge of said Court:

                   Comes          now      Applicant            Gerald Wayne Mitchell, Pro, Se by way of objection

         to      the         State's        original answer and Findings of Facts and Conclusion of Law,

         and Order, for the following reasons:

                                                                            I

                   Applicant              argues         that     the    State in its reply and Findings of Fact and

         Conclusion               of      Law,      has failed to Rebutt, Applicant's alleged Facts that the

         indictment               failed         to. meet         the    requisities of an Ordance with Texas Const.

         Art       5     §     12(b)        in the light of Exparte Thomas 234 SW 3d .. 656 (Tex App Beau-

         mont          2007)        or     Nix      Vs.        State 65 SW 3d. 664 (Tex Crim App 2001). Therefore,

         it      would         be        unreasonable            in the light of Exparte Adams 768 SW 2d. 281, 288

         ( Tex     Cdm App 1989) For the Tex. Court. Of.. Crim. Appeals to adopt the State's

         Findings            of        Facts       and        Conclusion    of     Law in light of the Facts before the

         Stat<:!       and        Habeas         Court proceedings, which the State Court failed to legally

         suppoLt          they had jurisdiction over, also such action would result in a compl-

         ete fundamental miscarriage of Justice.

                                                                            II

                 Such          Application               if    adopted     would    also   be unreasonable in the light
         of    Exparte            Maldonado          688        SW   2d.    114, 116 (Tex Crim App 1985) and Exparte

         Torres         943 ::;w 2d. 469, 4)4 (Tex Crim App 1997). Because Applicant has alleged
         facts         surrounding             a    invalid          indictment that failing to list a offense that


                                                                            .1
can      be        pr-osecuted           by       'l'exas        Law, a lack of -jur-isdiction and er-r-oneous -jur-y

char-ge        also           alleq~tions              of ineffective assistance of counsel, which if tr-ue

would         entitle           Applicant              to     r-elief.         As set out in Expar-te Adams 768    sw 2d.
281, 288 (Tex Cr-im APP 1989).

         Applicant              would like to br-inq to the attention of this Cour-t that State,

in     its         or-iqinal           answer-         under-       Cause No. 1175727-A (at 2-7); In r-esPonse to

Applicant's               First and Third Grounds for relief. (ar. 2) Asser-ts that Applicant

claims         that           the      iudgement            in      the pr-imar-y case is void because it is based

on a defective and invalid indictment (Applicant's Wr-it at 6-7). Specifically,

Applicant               claims         that       the       State's indictment fails to to allege an offense

defined            by     the       Texas         Penal Code, namely, the possession with the intent to

deliver            a     controlled           substance,              weighing       more than Four- (4) and less than

Four      Hundr-ed             (400)      grams          by      agqr-eoate,        weiqht, includinq any adulter-ants

and dilutants Id.

         In        his        Thir-d     qr-ound for- relief, Applicant claimed that the Tr-ial Court

er-red        in        the     -jur-y    char-ge           by      failing to pr-oper-ly char-oe the iur-v pursuant

to the indictment (Id at 10-11).

         Applicant              asser-ts          that        the     State has misconstrued both of Apolicant's

grounds (one) and (thr-ee).

        Applicant               awares that Court that in gr-ound one, Applicant never referred

to     the         indictment            containing              a defect. Requiring a review under Studer-           vs.
State 799 SW 2d. 263, 267 (Tex Crim App 1990).

        Applicant               alleqed           in    ground            one,    that.his judqement is void due to a

lack     of            jur-isdiction,             because           the       complaint (at cr-, 2) and the indictment

(at     cr,5).            Which        the        State       in its r-esoonse attached as Exhibit (A) failed

to satisfy the Constitutional requisites of a charaing instrument.

        Applicant               suppor-t          these       contentions           under-   the Tx-Code.Crim.Pr-oc.Ar-t.
27.01        in        the      light        of        Peterson Vs. State 781 SW 2d. 933,935 (Tex Crim App


                                                                          2
1989)        which        states:           an     infor-mation            is a wr-itt-en oleadina in behalf of the

State dr-awn, filed and pr-esented by a pr-osecuting attor-ney char::-ginq an accused

with      an       offense           that        may     be pr-osecuted under- the Law. An infor-mation must

be      based       on     a complaint, and the offense stated in the for-mer- must he char-

acter::-ized by and cor-r-espond with that stated in the Affidavit.

        Also        in     Expar::-te        Peter-son          740       SW 2d. 766, 775 (Tex Crim App 1987) and

Exparte         Beck       769        SW     2d.       525 (Tex Crim App 1989) states that an indictment

ser-ves       as     a     dual           function.        On the one hand it is the wr::-itren srnrP.ment of

a     Grand        Jury accusing a person ther-ein named of some act or ommission which,

by     Law     is        declared           to     be an offense. On the other hand, the indictment is

is     the     primary           pleadina           in     a     [Felonv] criminal action on the nart of the

State. Thus the indictment serves interest of both the State nnd thA Accusen.

        Which        Petitioner              alleqed           and    suonorted       with facrs that- thA r.()mnlainr

(at     cr::-,2)     and        indictment             (at cr,5) also shown bv the State in it.s attached

Exhibit        (A)        under           cause     No.        1175727. Failed to satisfy the Constitutional

requisites           of     a        charqinq          instrument.          Because     the St.ate of Texas as shown

in both the (cr,2) and (cr,S) clerk records and in the States attached Exhibit

(A)     does not have a legal penal code statute
                                           '-
                                                 of Law for a offense of possess-

ion     with        intent           to     deliver a controlled substance, weiahina more than Four

(4)     and        less     than           Four     Hundred (400) grams by aggregate weiaht, includina

any adulternats and dilutants Id.

        The        State        in        its response (at 2) conceded that the indictment as shown

in    their        attached               Exhibit        (A)     reflected      an illAaal offense of (4 to 400)

and     asserted           that following voir .dire and prior to the commencement of test-

imony.        Applicant's                 trial     counsel ·objected            to     the Form of the indictment,

and     objected           to        the State's, request to Amend it or abandon the Four Hundred .

(400)     gram        upper weight limit it (III rr, at 5-13) Apolicant's trial counsel
argued        that,       as     is,         the       indictment "alleges an impossible and nonexistant


                                                                      3
    offense"             and     that        consequently,            the       (at,3) trial couct could not pcoperlv
    chacge        the          jucy       because        no     applicable punishment canqe existed (III cc at
    6-8).        'l'he     tLial          couct        ovecculed          tcial     counsel's obiection and      ultim~telv
'
    culed        that          the     indictment             would cemain as is, but that at the end of tcial
    the     couct          would          chacge        the jucy based on the evidence at tcial (III cc, at
    14-15).
            Applicant                acgues       that        the    State's        Findings (at 4), which allege that
    the     indictment                gave     Applicant            suuficient notice of the chacge against him,
    (7)     that         trial         counsel          failed       to     file oc show a pcetcial motion to quash
    and     culed          on        prioc     to       the     commenced trial. (8) that the objection to the
    indictment             was       timely.·          (9)     Applicant          failed     to show was claim of invalid
    indictment             oc     void        judgement,            which       could have been, but whece not caised
    on     dicect appeal. (10) Applicant's cecocd claims are not cogniable on habeas,
    and     (16) that Applicant has failed to show that his conviction was impmperly
    obtained          oc        that       he is being          i~pcopecly        confined. Also the State Conclusion
    of     Law (at 3) which the State alleges that Applicant has waived and forfeited
    allegation in regards to defects and icregulacities in the indictment.
            Applicant            also         brings          to the attention of this couct, that the State's
    ceply and indings of Facts and Conclusion of Law in regacds to the indictment
    have been misapplied to the Facts and Applicant's acguments undec the T.C.C.P.
    Act .27.01            which           Applicant          asserted       in the light of Peterson Vs. State 781
    SW     2d.     933,935             (Tex     Cdm App 1989) and Exparte Petecson 240 SW 2d. 766,275
    (Tex     Crim         App        1987)     also          the couct in Studer            vs.    State 799 SW 2d. 263,267
    (Tex     Crim         App        1990) which speaks of a_substance defect, which is consideced
    fundamental            er:cocsince             a    a     charging          instcument        with such a defect failed
    to     confer         jucisdiction upon the trial couct and any conviction had upon that
    instrument was tcecefoce void. This court has used the teems substance defect,
    "Fundamental               ecror",        and       fatally       defective            intecchangably when addressing
errors           in       charging            instcuments           which led. to void conviction at 268; A sub-
stance           defect          is       among        other        things, a failuce to allege an element of an
offense ih the charging instrument.
           Applicant             further           assects          that the State's response, Findings of Facts
and .Conclusion                      of    Law in regards to the indictment shown in State's Exhibit
    (A)    is      unreasonable               in       the .light of Nix Vs. State 65 SW 3d• 664 (Tex Crim
App        2001)          which Applicant asserts that the State failed to oveccome                                Applica~

nt' s alleged                   facts 1n gmund one (1) • Also in the absence of jurisdiction
and a legal                     charging instcument no objection is cequired as set out in Nix


                                                                            4
vs. State:
     A judgement of                       conviction          fo~     a   c~ime is void when (1) the document
pu~po~ting to be a                       cha~ging       inst~ument,       that is the indictment, infor-mation
or-     complaint          does not satisfy Constitutional r-equisites of a char-ging instr--
ument,        thus        tr-ial      cour-t      has no jur-isdiction over- defendant (2) tr-ial cour-t
lack      subject          matter-        jur-isdiction          over- offense char-ged, such as when a mis-
demeanor-           involves        official misconduct is tr-ied in a cour-t of law. (3) Recor-d
r-eflect that ther-e is no evidence to suppor-t the conviction or- (4) an indigent
defendant           is     requir-ed           to face criminal trial proceedings without court app-
ointed        counsel          when       such     has     not been waived (at 667) our- cases r-ecognize
two      exceptions            to     general r-ule, which exceptions we shall call (1) the void
judgement           exception            and     (2) the Habeas Corpus exception. The void judgement
exception           recognizes            that     there        are   some    rar-e situation in which a tr-ial
court's         judgement           is     accor-ded       no     respect    due to a complete lack of power-
to      render       the       judgement          in     question,        a void judgement is a nully and can
be      attacked          at    any       time.        Exparte Patterson 969 SW 2d. 16,19 (Tex Crim App
1998)      therefor-e           r-ebutting         the     State's contention that a objection was nec-
essary if not any indictment er-r-or was waived.
         Also       Studer       Vs.       State        is a misapplied as well in the light of Exparte
Thomas        234     SW 3d. 656 (Tex App Beaumont 2007) which lays out the 1985 Amend-
ment      for       Studer       vs.      State 799 SW 2d. 263 (Tex Cdm App 1990) which Expar-te
Thomas reads:
        The     Amendment             to the Texas Constitution and.the Tex.Code of Cr-im. Pr-oc.
1n      (1985) change the Law see; Cook 902 SW 2d. 476. The Legislatur-e is author-
ized     to     prescribed by statute the effects of substantive defects in charging
instruments.              A defect         of      form or substance in ari indictment or information
is     waived        if    no       objection is made before the date commences tr-ial; and the
pr-esentment          of       an indictment or- infor-mation vest the cour-t with jur-isdiction
over-    the        case see Tex.Const.Ar-t. V § l2(b); Tex.Code Cdm.Pr-oc.Ann Ar-t. 1.14
(b)     Vernon        2005. The Constitutional Admendment allowed the specific requir-e-
ments     of        indictments           and informations to be deter-rmined by statute see Tex.
Const.Ar-t.          V §        12(b).         Teal     Vs.     State SW 3d. 172,178 (Tex Cdm App 2007).
Studer        Vs.     State         SW    2d~.     at.272. The.change in Law shifted            the focus from
whether        a defect was a fundamentaL substantive defect to whether- the defend-
ant     objected          to     the      defect.       before trial, see Teal Vs. State 230 SW 3d. at
178; Cook Vs. State 902 SW 2d. at 477.
        The     r-ule      as       stated        ear-lier regarding the allegations 1s an indictment



                                                                 5
also     qenecally apply to an infocmation see Tex.Code Ccim.Pcoc. Ann Act. 21.23
 (Vecnon       1989).         The       Statute          defines              an     infocmation as a wcitten statement
filed      and pcesented in behalf of the State by the distcict oc county attorney
chacging         the     defendant             with       an        offense           which may by law be so pcosecuted
Tex.Code         Crim.Proc.Ann                Art. 21.20 (Vecnon 1989). An information is presented
when     it      is     filed          by the proper officec in the proper court, Tex.Code Ccim.
Pcoc.      Ann        Act.        12.07       (Vemon           2005).              A charging instrument that charges a
person        with      committing             an offense once presented involves the trial court's
jurisdiction            is        no longec contingent on whether the charging instcument con-
tains     defects            of     form       or     substance. Teal Vs. State 230 SW 3d. at 178, see
also     Exparte         Patterson 969 SW 2d. at 19; and Duron Vs. State 956 SW 2d. 547,
550-51 (Tex Crim App 1997).
        Applicant            further          concludes             in        reference to the State's reply on App-
licant's        ground            three.      Which .Applicant asserted earlier that the State had
misconstrued, .which                    the      State         (at        2)       in its reply contend that Applicant
claims     the tcial couct erred in the jucy charge by failing to propecly                                      ch~rge

the jucy pucsuant to the .indictment. ( Id at 10-11).
        Applicant            points        out      that        the           complained    eccoc in which the State's
speaks     of,        Applicant            alleged         that           the trial court erred in submitting the
jury     chacge        before           the court over               Applic~nt's         objection, because the charge
failed     to     instruct the jury on the Law of the case as set out under T.c.c.P.
Art.     36.14.        Which           the State in its original answer (at 2-7) allege that the
indictment        shown           in     State's          Exhibit (A); in its Findings of Fact under No.
3,4,5,6,16        and        its        Conclusion             of        Law under No. 1,2, and 10. Contends that
the     jury     charge was a variance from the wording of the indictment, the evid-
dence     presented           at        trial       in     the primary case was not material and did not
prejudice        Applicant's               Right's, that the indictment gave Applicant sufficient
notice     of     the        charge        against him, in order to prepare a defense to prevent
the     State     from        a        later prosecution, also that Applicant failed to show how
his     preparation           or        defense          strategy was harmed by any variance between the
indictment        and        the evidence presented at trial, or how he recieved a harsher
punishment.
        Applicant        asserts           that          the        Facts and J.<'indings and.Conclusions of Law,
in     relation        to .Applicant's                   thicd        gcound of relief. Which the State ask to
be     adopted        would        be     unreasonable                   in    the light of the Tex.Code Crim.Proc.
Art.     36.14.        Amanza vs. State 686 SW 2d. 157 (Tex Crim App 1984) causing App-
licant     egregiuos harm. Because the indictment shown in the State's Exhibit(A)
and the jury charge shown in State's Exhibit (B) of its original answer failed

                                                                     6
to     meet        the Constitutional requisites of a charging instrument in accordance
with        Tex.Const.Art.               V § 12(b) in light of Exparte Thomas 234 SW 3d. 656 (Tex
App        Beaumont           2007)      and        Nix    Vs. State 65 SW 3d. 664 (Tex Crim App 2001) to
provide           the court with jurisdiction or invoke the 1985 Amendment under Studer
vs.        State        799       SW    2d.        263,267       (Tex Crim App 1990). Requiring an onjection
to     the        indictment prior to commencement of trial, presentment of the indict-
ment        or     information,               as     set out under Tex.Code Crim.Proc.Ann Art. 1.14(b).
Applicant              further         asserts          that the jury charge fails to meet the Constitut-
ional        requisites             under          In Re Winship 397            u.s.   358,364, 90 Set. 1068.25 L.ed
2d.        368     (1970).          Also the Constitutional.requir.ements by the Judge under the
Tex.Code           Crim.Proc.Art.                  36.14    in     the light of Vasquez Vs. State 389 SW 3d.
361,366           (Tex       Crim       App 2012). Which states that the charge is the instrument
by     which           the    jury       convicts,          it .must contain an accurate statement of the
Law        and     must       set out all the               essential elements of the offense. Which goes
back        to     Applicant's            trial          counsel's argument about the indictment alleging
a nonexistant offense and. that consequently the trial court could not properly
charge           the     jury because. no law applicable exist to either the charge or pun-
ishment           (III       rr    at     6-8).          Therefore           making it impossible for the court to
meet        the        Constitutional requirements under the (Tex. Code Crim.Proc. 36.14).
Which        the        State has failed to overcome Applicant alleged Facts which if true
would        entitle          Applicant            to     relief        on     this ground three. of error as well.
Applicant              now concluded this objection in good faith and undue delay, asserts
that        the     State         in     its       original        answer, Facts and Findings and Conclusion
of     Law        have       unreasonably               applied Gollihar Vs. State 46 SW 3d. 243,257 (Tex
Crim        App 2001) alleging that the jury charge shownin its attached Exhibit(B)
is     a     variance,            because          a variance onlyapplies to a charge to the court in
which        jurisdiction               has    been        involved.          However Applicant will supply a few
factors,           in    case          this    court        was        to stand by the State's allegations of a
    variance, Applicant asserts:
       ·A    variance             between          an     indictment ·and proof at trial will be fatal to
a    conviction only if.it. is material. A variance is material if it prejudices
defendant's             substantial            Rights.       Rickerson Vs. State 138 SW 3d. 528 (Tex App
Houston 14 Dist 2004).
              a variance between the indictment. and the evidence at trial
       Generally
is fatal to a conviction. because due process guarantees the defendant notice
of the charge against him u.s.c.A~Const. Amend. 14. Greeno Vs. State SW 3d.
495 (Tex App Houston 2001) and Moore Vs. State SW 3d. 495 (Tex App 2000).


                                                                   7
 Which Applicant alleges that the State                                neve~   had a charging instrument.
           Applicant           further           a~gues     that       the State's reply to Applicant's second
 and       fourth        ground for relief, on Applicant's claim of ineffective assistance
 on     Appeal,          due        to     Appellate        counsel failure to raise on Appeal the issues
 of     an    invalid/defective                    indictment, invalid jury charge, and void judgement
 shown in Applicant's Writ (at 8-9, 12-13).
      Applicant argues that it would be unreasonable in the light of Exparte
 Adams       768        SW     2d-       281,288        (Tex Crim App 1989). For this court to adopt the
-state's          contentions ·in·· its                   r~ply     bri-ef- (at 7..::9)   ot   fEs Fihaihgs   o-CFacts
 and       Conclusion           of Law under No (11) stating Applicant failed to show a reas-
 onable       probability                that but for Appellate's counsel allegedly deficient con-
 duct       of not raising the defective or invalid indictment, improper jury charge
 and       void     judgement,              he    would        have .prevailed. (at No 12) That these claims
 were       clearly           stronger           than    the      insufficientcy     of the evidence to support
 the       punishment           enhancement shown at Mitchell slip up (at 2-4) citing Exparte
 Madn        2008        WL     902143,          4 (Tex Crim App April 2, 2008) and Smith Vs. Robbins
 528       u.s.     259,285-86 (2000)(Also No 13). Also that Appellate counsel provided
 effective assistance of counsel, is clearly unreasonable as well as the State
 Conclusion             of     Law       under      No.s (4-10). Which Applicant argues that the State
· contention            about        the     significants          of    the    errors raised, Applicant points
 out       that     Applicant              alleged       challenges .on the guilt/innocence phase, which
 is    a     grave           error       than the punishment challenged error by Appellate counsel
 as    referred              to by the state and shown at Mitchell slip op. at 2,4. Also App-
 licant       asserts that the State's contention that such error in a Habeas Corpus
application              is     not        cognizable       on habeas as stated in the State's Facts arid
 Findings (at (10) and (11)). Its also unreasonable in the light of Applicant's
ground        two,        which          Applicant asserted that Appellate counsel was ineffective
 for failing to challenge the void judgement on Appeal, due .to a lack of juris-
diction           and     also        that       such     errors is not barred on Habeas Corpus in light
of     Coleman           Vs.        Thompson       501    u.s. 722,ll5 L.• Ed. 2d. 640,lll Set 2546 (1991)
and        had the State court on habeas review considered Applicant's alleged Facts
as     set        out     under          Exparte Maldonado 688 SW 2d. ll4,ll6 (Tex Crim App 1985).
The     Habeas court would have come to the conclusion that had Appellate counsel
gathered           the        Law    and Facts and challenged such alleged errors by Applicant.
No     Apppellate              court       would        have come to the conclusion that the State court
ever had jurisdiction, nor was the conviction valid, or the jury charge was
correct and would have agreed with Applicant that his conviction is void


                                                                   8
and   rest. On a co1riplete fundamental miscarriage of justice, therefore entitl-
ing   Applicant      to     relief     on   Appeal as set out in Exparte Daigle 848 SW 2d.
691,692 (Tex Crim App 1993).
                                                   Prayer
      Applicant      prays     that     this court would review the State original answer
Findings     of    Facts     and     Concltision    of Law along with Applicant's objections
and   then    find       that the State contentions and Facts is unreasonable and that
jurisdiction       was     never    established,         nor     did   the juror charge satisfy the
T.c.c.P. 36.14. and thereafter grant relief.
                                       Certificate Of Service
      Applicant,      Gerald       Wayne    Mitchell,       do     hereby state. that the foregoing
is true and correct and free of perjury.



Executed date
                  -----------------------------------



                                                                       Gerald Wayne Mitchell
                                                                       #1608296
                                                                       French Robertson Unit
                                                                       12071 F.M. 3522
                                                                       Abilene, Texas    79601




                                                     9
                    OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

                 ~;~~~fAJ;f3T~~~3~L ~T
                 PENALTY FOR
                 PRIVATE USE
     7/27/2015
     MITCHELL, GERALD WAYN                                                             WR-41,379-03
     On this day, the application                                            Corpus has been received
     and presented to the Court.
                                                                                           Abel Acosta, Clerk

                                 GERALD WAYNE MITCHELL
                                 ROBERTSON UNIT - TDC # 1608296
                                 12071 FM 3522
                                 ABILENE, TX 79601




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