, ~O| 02)03/04/
324 350 1 O-§

February 25 , 2015

Court Of Criminal Appeals RECEWED ,N
Clerk, Abel Acost;é"'.'"."» COURT OF CR|MINALAppEALS
P.o. Box-.12308,. Capital statié§n _
Austin, Texas 78711 - MAR 03 2015

RE: Ex parte Matthew' Cotten AbeiAcQSta. C'€F§(

Writ NOS. C-432-010371-1222336-A; C-432-010372-1227019-A; C-4'32-'--1-3'73-1227020-A;
C-432-010374-1227021-A; C¥432-010375-122711_1-A.

Dear Clerk,

Enclosed you will find "Applicant's Traverse To the '_I‘rial Court's-,Findings‘ of
FAct and Conclusion of Law" in the above stiled and numbered causes. Please file-
stamp said instrument and bring it to the attention of the court in your usual fashion.
'I'hank you for your time and cooperation.

Respectfully Submitted:

k _
Matthew Cotten No. 1826716
Coffield Unit
2661 F.M. 2054

Tennessee Colony, Texas 75884

CC:

Steven W. Conder

Assistant Distr'ict Attorney
401 W. Belknap

Fort Worth, Texas _76196-0201

writ No. c--432-\Qi0371-3;122233_6-A
Ex Parte In The 432nd Judicial

District Court

Matthew Cotten

mm€m¢°bfm

Tarrant County, Texas

Applicant's Traverse To The Trial Court's-Findings Of Facts
And Conclusion Of law

To The Honorable Court Of Criminal Appeals:

Now'Ccmes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
TraVerse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support thereof will show this court the following:

Grounds For Relief
` On January 4, 2015, Applicant filed this foregoing writ of habeas corpus

alleging five constitutional violations during the course of his trial court proceeding.

In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No.1222335D:, is i§legal because the "Judgment of Conviction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of'thirtyiyears in Cause
No. 1222336D , is Void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he _was denied due process and
due course of law When the State presented "no evidence" to support the enhancement

allegatiOnS aS required by Section 12.42(d), Texas Penal Code; thereby making his
thirty year sentence Void.

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
'failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement against}himself.

Argument And Authorities
Ground Number One

In ground number one, Applicant argued that his sentence of thirty years in
Cause No. 1222336D is illegal because the""Judgment Of ConViction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For Writ Of\Habeas.Corpus

In addressing ground number one, the district attorney argued that relief should
be denied simply because -TFthe indictment alleged two prior felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant!s constitutional
questions of law and fact regarding the applicant's clain1that the record affirmatively
reflects that his sentence is illegal because the "Judgment of ConViction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment 0f ConViction By Court, Appendix No. 1-5, and
R.R. Vol#2, pp. 109 through pp. 114).

;Applicant maintains that because the "Judgment of Conviction and the Reporter's
v Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#Z,pp.lOQ through pp.114) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's

findings is not entitled to the presumption of correctness under 28 U.S.C. §2254(e)(1).

Habeas Court Memorandum/ Findings

On February 2, 2015,-the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive.
The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp.l).

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation to ground number one based upon the fact that the trial
court's findings is contradicted bY; the vrecord of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of ConViction By Court and QR.R. Vol#2,PP-109 through pp.114).

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to onlyv one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewi$e, a review§gfthe punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentence§qf thirty years void. Moreover, the record shows that
the district attorney only asked the trial court to take iudical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement aiiegation, the trial court illegally concluded:

!Based upon the foregoing evidence and the information that's been provided to

\ y
"' '._:T\ v v z l 1.3:%~"~,

the court and your admlsslon, the court hereby finds you guilty of all five caus§

;5. U=..

numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled the
State of Texas versus Matthew C. Cotten. The respective enhancements are also found _
to be true. In the cause numbers, with the exception of 1227111, the Court hereby n
sentences you to 30 years in the Institutional Division of the Texas Department of
Crimina1 Justice. In Cause No. 1227111, theCourt hereby sentences you to 20 years '
in the Institutional Division of the Texas Department of Criminal Justice." (R_. R.

Vol#3,pp. 86, line 18 through pp.87, line1-7). `

é

Section 12;42(d); Texas Penal Code governs the punishment for habitual felony`
offenders, and requires the State to present evidence of two prior felony offenses '
inorder to sentence anyone as a habitual offender. EX Parte Rich, 194 S. W.3d 508,
511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistantly held _that the State must present evidence which
supports the enhancement allega§ions contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish-
ment can not be legally `enhanced. Cole V. State, 611 S.W.2d 79, 80(Tex. Crim. App.
1981),~'Mize1_1 v. state,` 119 s.w.3d at 806(1@<. App. 2006); Jordan v. state, 256 v
s.w.3d 290, 293_(¢Tex.crim. App. 2008). "'

Here, in applicant's case now before the Court of Criminal Appeals the record

,..-¢-rl

shows that at thef::_,

    

hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain§'any evidence
of any prior felony convictions. (R.R.-;.Vol#3}pp.7, line 6 through pp.S, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two'and Three

In ground number two, applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations
required by Section 12. 42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

In ground number three, Applicant argues that he was denied dueqiprocess and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12.42 (d), Texas Penal Code; thereby making his

thirty year sentence void.

State's Reply Tb Petition For Writ Of Haheas Corpus

ln addressing grounds two and three, the district attorney argued that relief
should be denied because:

"The record herein is not totally devoid of evidentiary support for enhancing

the applicant's sentencing range." (See: Statevs Reply,pp,§),

Mbre specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
the&appéarah&§,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding applicant's claim that the State presented "no
evidence" to support7 the essential elements of the enhancement paragraph as required
by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-
tution. (State's Reply, pp.5¥6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts Bave long held that in all
criminal prosectutions regardless of the plea or whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a criminalf;offense
be convicted upon his plea without sufficient\evidence to support the same. Articke
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. Iouisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-»
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
. did not con$ain certified copies of prior iudgment of :convictions against the appli-
cant. Gar¢ia V. State, 930 S§.W.2d 621, 623(Tex.Crim. App.1996). Likewise, in order for
a stipulation to be considered as evidence where the plea is before the.court, the state
must introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.Zd at 698; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 s.w.zd at 513. `

Here, in applicant's case nomlbefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the-allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
_ examination of witnesses, and consented to oral and written stipulations of

evidence. (See§ State's Reply, pp.5).

In conclusion, the record clearly shows that the State denied applicant due
proc§ss aid due cou§se of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment Of the Uhited States Constitution. Consequently, no
rational trier of fact could have found the essentiau elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum-/ Findings

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.
The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp. 1).

Applicant's Traverse Tb The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
.evidence supporting the enhancement of his sentencing range to habitual offender
status." Applicant maintains that his iudicial confession standing alone is not enough
to support proof of a final ~¢onviction, where the P.S.I. report did not contain
certified copies of prior iudgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513¢

The Texas Court of Criminal Appeals have long held that in all criminal prosecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the iury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
Criminal Procedure; Stbne V. State, 919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S.W.2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies
of prior iudgments of convictions against the applicant. Garcia, 930 S.W.2d at 623.
In summary, the State must introduce a copy of each iudqment of conviction, in each
case used for enhancement purpose. See: Section 12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; Ex parte Rich, 194 S.w.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then_rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.lI4,'1ine
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there wene
"no evidence" of prior convictions contained within the P.S.I. report. §Thus, based'
upon the record¢ no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
_must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

In ground number four and five, Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United
State Constitution when he failed to read the full "Miranda warning" to him as required
by Article 38.22 § 3(a)(2), Texas Code of Criminal Proceedure.

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Constitu-
tion when he threatend§-physical harm to him and his property in order to coerce him

to give a self-jncriminating statement against himself.
State's Reply Tb Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable
_because these same complaints were reiected on direct appeal." (See: State's Reply,
pp.6).

However, the district attorney has failed to address applicant's constitutional
questions of law and fact regarding additional evidence that is being presentéd:lfor
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claims
raised and reiected on direct appeal zare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852(TEx. Crim. App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. Crim, App. 1991); Ex parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App.
1986).

Habeas Court Memorandum / Findings

In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not itognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trialx court's recommendation that ground four and five be denied based upon the trial
court's finding that: l

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five

of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that

are based upon new theories that were not.presented on direct appeal. EX parte Good-
man, 816 SBW#Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally j:unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schuss&er, 846 S.W.2d at 852
(Tex: Crim. App. 1992)(granting relief due to lack of iurisdiction)} Ex parte Russell,
738 §§W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void
prior conviction); Ex parte Bravo, 702 S.W.2d 189(Tex Crim.App. 1982)(granting relief
do to the improper excusal of a veniremamber): Ex parte Clark) 597 S.W.2d 760(Tex.
lCrim;App.1979)(qranting relief due to the trial.;COurt's failure to apply the law to
the facts of the case).

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial< court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him bi the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning"-to him as
required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum

of Iaw, pp.14).

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number ione on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --"applicant's Miranda.and due process grounds for relief are not cognizable because
they were litigated on direct appeal"¥- must be overruled and the cause remanded back to

the trial court for a new trial.

'Likewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and
»voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review
of applicant's fifth ground for review on his habeas corpus petition shows that he
alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth'Amandment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incrhhinating

statement against himself. (See: Applicant's Memorandum of law, pp.17).

In summary, after comparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that
the claims are not the same because applicant is now presenting a constitutional issue
loftlfundamental'error based upon a theory not alleged on directnappeal. Conseiuently,
the trial court's finding that --"applicant's Miranda and due process grounds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-
ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one,.two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Moves The Court..

Respectfully Submitted:
Matthew Cotten No. 1826716

Coffield Unit

2661 F.M. 2054
Tennessee Colony, Texas 75884

10

' certificate of service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy of this foregoing instrument has been served upon Steven `W. Conder, Assistant
District Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th
day of February, 2015.

am WMA/~ &27/€~
Matthew Cotten No. 1826716

Applicant, Pro se;:;.§‘..§i§

11

Wlit hkn C-432-010372-1227019-A

Ex Parte f In The 432nd Judicial

District Court

Tarrant County, Texas

¢m_oameoaco:

Matthew Cotten

Applicant's Traverse To The Trial Court's Findings Of Facts

And Conclusion Of law
To The Honorable Court Of Criminal Appeals:

.Ngw'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Of Criminal Appeals to grant this foregoing State post conviction writ of
habeas corpus; And in support thereof will show this court the following:

Grounds For Relief

lh:ri;;On:January:A;;ZOl§;.AppLicant:filed:this¢foregoing~writeof¢habeas¥cofpusl+~##4~¥~”4¢~~1

`alleging"fiveyconstitu@i§§§¥lY§@}?P§§§§j§@iih§§§b§.§QH£§§_Qf-bl§,t@§§£{}§§§§§;brbc:§ edi g _-:_

 

In ground nuber one, Applicant contends that his sentence of thirty 4years in Cause
No.1227019D `, is illegal because the "Judgment of ConViction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227019D , is void because the State presented "No Evidence" to support the -
enhancement paragraphs'alleged in the indictment, as required by Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal.Con-

stitution.

In ground number three, Applicant contends that he _was denied due process and
due course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12. 42(d), Texas Penal Code; thereby making his
thirty year sentence void. -

In ground number four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),

Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his

"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a Self-incriminating

statement against' himself.

Argument And Authorities

Ground Number One,

In ground number one, Applicant argued that his sentence of'thirty years in
Cause No. 1227019D is illegal because the""Judgment Of ConViction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

state's Reply To Petition For writ of Habeas-corpus

ln addresslng ground number one,_ the dlstrlct attorney argued that relief should

 

 

MW‘"be“denled~slmply because'=§?the indictment a11eged two'prigr'felony convictions: a
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
vhis sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's clajrn that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only

found one enhancement paragraph true, thereby acquitting applicant of the habitual
offender allegations. (See: Judgment Of ConViction By Court, Appendix No. 1- 5, and

yApplicant maintains that because the "Judgment of ConViction and the Reporter's
1 Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#Z,pp.lOQ through pp.ll4) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's

findings is not entitled to the presumption of correctness under 28 U. S. C. §2254(e)(l).

Habeas Court}kmmnznuhmv Findings

On February 2; 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the‘ events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any
1 decussion--"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See: Memorandum / Findings,

pp.l).
Applicant's Traverse Tb' The Trial Court's Findings

Applicant now contends that the Court of Cr1m1nal Appeals should not adopt the

trial court's recommendation to ground number one based upon the fact that the trial

court s flndlngs is contradicted by the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of Conviction By Court and (R.R. Vol#2,pp.109 through pp.ll4).

A review of the "Judgment of ConViction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). [ikewise, a review'ofthe punishment hearing showsv that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's sentence of thirty years void. Moreover, the record shows that
the_district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested{ (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1~15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement allegation, the trial court illegally concluded:

FBased upon the foregoing evidence and the information that's been provided to

_..,,.1 ve §
, swsz
~R
g 1
f

i’»v.

»~~,.»-

numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectlvely styled the
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby
y sentences you to 30 years in the lnstitutional Division of the Texas Department of j
==*=“==errmmnai~&astree*-in-€euse~No==lZ%?i¥%==theeourt““h‘"r"f " in ,__'
'in the Institutional Division of the Texas Department of Criminal Justice." (R. R.
Vol#3,pp.86,line 18 through pp.87, line1-7).

 

 

Section 12:42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. EX Parte Rich, 194 S. W.Bd` 508,
511(Tex. Crim. App. 2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistently held that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punishr
ment can not be legally enhanced. Cole V. State, 611 S.W.2d 79, 80(Tex. Crim. App.
1981); Mizeii v. state, 119 s.w.,3d at 806(1@¢. App. 2006),» Jordan- v. state, 256 -

--S;W.3d!290}"293§Tex2€fim}~Appf-2008)~ ` ~_ ;»~ " ` `4

- ........ s;f;reex;Here%:in:appldcantmv"case“now:beforeIthem;Court¢of4Criminal¥Appealssthelfe§ofdlres414!~

“'"shows"that`at;thej; "' hearing the State only askéd_ the court to take 1ud1c1al

notice of the presentence investigation report which did not contain. any evidence

 

 

of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations .true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three `

7 In ground number two} applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations
required by Section 12.42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

t - In ground number three, Applicant argues that he was denied due process and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by- Section 12.42 (d), Texas Penal Code; thereby\making his

thirty year sentence void.

a=a====Sfif§w§=R§§TY=TE;P§€TtISH°FET“Wff€qd?i§§i§@?€brpus

.In addressing grounds two and three, the district attorney argued that relief

should be denied because: l 4 f

"The record herein is not totally devoid of evidentiary support for enhancing _

the applicant's sentencing range." (See; Statels Reply,pp,§),

More specifically, the district attorney argues that there is some evidence
to support the_enhancement allegations based upon (1) "The applicant entered a
` judicial confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
thenappearancé,confrontation and cross-examination of witnesses, and consented to oral

and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional

1,rlquestions“of;lawwandpfact“regarding:applicant* s:claim;that:the;$tate:presented:£no;;ww-1§11

evidence"'to support::the essential elements of the enhancement paragraph as required

by Section 12. 42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;

and due process under the Fifth and Fourteenth Amendment of the United States Consti-

l

tution. (State' s Reply, pp.5-6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts have long held that in all
criminal prosectutions regardless of the`plea or whether the punishment is assessed
by the iudge or the iury,.in no event shall a person charged with a criminal. offense-

i be convicted upon his plea without sufficient evidence to support the same. Artitle.

’ 1.15, Texas Code 0f Criminal Procedure; Stone V; State, 919 S.W.2d 424,.426_(Tex.
Crim. App. 1996); Messer V. State, 729 S.WLZd 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.Zd at 483; Thompson V. louisville, 362 U¢S. 199, 80 S.CT. 62411978).

Furthermore, proof of prior convictions contained within the presentence inves-.

tigation report is inadmissible as proof of a final conviction where the P. S. I. report

¢ did not contain certified copies of prior iudgment of convictions against the appli-
cant. Garcia V State, 930 S..W. 2d 621, 623(Tex. Crim. App.1996). Likewise, in order for
a stipulation_ to beicnnsidered as_ evidence“where_ the plea,is“before the courtL_the statew__
vmust introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone; 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 S.W.Bd at 513.

Here, in applicant's case nomlbefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a iudicial confession admitting to all of the-allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
1 examination of witnesses, and consented to oral and written stipulations of
evidence. (See: State's Reply, pp.5),

' _In concluslon, the record clearly _shows that the State denied applicant due

process and due course of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentiaj elements of the enhance-

ment allegations true beyond a reasonable doubt.

Habeas Court Memorandum_/ Findings

In addressing ground number two and three, the trial court erred in stating:
v "The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status.-

The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp 1--)

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial_court's recommendation that ground two and three be denied based upon the trial`

court's finding that--"applicant's 1udicial confession (standing alone) provides some

 

.evidence supporting the enhancement of his sentencing range to habitual offender

status." Applicant maintains that his 1udicia1 confession standing alone is not enough

,to support proof of a final vconviction, where the P.S.I. report did not contain

certified copies of prior 1udgment of convictions against him. See: Garcia V. State,
930 S.W.2d 621, 623(Tex. App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 S.W.3d at 513.

The Texas Court of Criminal Appeals have long held that in all criminal prosecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the 1ury, in no event shall a person charged with a criminal offense be convicted upon

his plea without sufficient evidence to support the same. Article 1.15, Texas Code of

' Criminal Procedure; Stone V. State, 919 S. W.Zd 424. 426(Tex. Crim. App. 1996); Messer

V. State, 729 S W. 2d 694, 698(Tex. Crim.App. 1986). LIkewise, allegations of prior
convictions contained within the presentence investigation report is inadmissible as

proof of a final convictlon, where th§ P. _S I. report did not contain cert1f1ed copies

 

 

U:Qf prior judgments of convictions against the applicant._ Garcia,_930 S. w.2d at 623 ......

""In summary, the State must introduce a copy of each 1udgment of conviction, in each
case used for enhancement purpose. See: Section.12.42(d), Texas Penal Code; Terrell
V. State, 228 S.W.3d 343 at 346; Ex parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
1udicial notice of the presentence investigation report and then rested without pre#
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp.114, line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidence" of prior convictions contained within the P.S.I. report. TThus, based
upon the record¢ no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the_recommendation of the trial court
must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

In qround number four and five} Applicant arqued that Detective Anderson violated

his Miranda Riqht quaranteed to him by the fifth and fourteenth amendment of the United

State Constitution when he failed to read the full "Miranda Warninq" to him as required
=====§=5j=§rtic?e=%%?%%=§é§%a%$£dz=Texas°Code=of=tilmiual??iot=eduie?"‘f`f'“‘__'* _ _________

 

In around number five,_Applicant arqued that_Detective Anderson violated his due
process riqht under the fifth and fourteenth amendment of the United States Constitu-
tion when he threatend .pthical harm to him and his property in order to coerce him 1

to dive a self-jncriminatinq statement aqainst himself.

State's Reply.To Petition For Writ of Habeas Corpus

In addressing ground number four and five, the district attorney arqued that-

relief should be denied because:

"The applicant's Miranda and due process qrounds for relief are not cognizable`
,because these same complaints were reiected on direct appeala",(See;'State!s_Reply,

pp.6).

However aeae»-a'i’-S%r'i#¢»¢#»at'~eo'r‘né;;--raS=~f»§a§i»'éd »eo~~»ada'r¢=$s~aaafa§a”€-`=§*aan:seeut"i'-'emal --

i,"_` .i ~.qiiéstions.:c">é_"_iéw:fahd,,:f_,éc*£.jré&éi:{i"ihd addi£i<`>néil _é§r;i?ie'r{c`é. 1£?1&1`; li“slb"e`ih‘d. fnr`.és"én£é<}; ,`fk)“r: l ; 1 ; -- _ , _
the first time in this foreqoinq habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the`qeneral rule that claims
raised and reiected on direct appeal _are not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852(TEx..Crim} App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. `crim,'App_. 1991); Ex parte Russeli, 738 s.w,Zd 644, 646('1‘@<§ crim.App.
1986). ` `

Habeas Court Memorandum / Findings

v _In addressinq around number four and five, the trial court erred in statinq:
"The Court finds that the applicant's miranda and due process qrounds for relief are

not coqnizable because they were litiqated on direct appeal." (See; Memorandum/Findinq,

w

'pp; 1\.

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court' s recommendation that ground four and five be denied based upon the trial
court's finding that: ¢____'________"__ _*»*-*_*____’__* __ ’______

"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding; pp.l).

.Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,.
because his claims now before the court are fundamental constitutional claims that
are based upon new theories that were not presented on direct appeal. Ex parte Good-
man, 816 S§WLZd 383, 385(Tex. Crim. App.-1991); Ex parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); Ex parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law
is clear, although habeas corpus is traditionally _unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussler, 846 S W.2d at 852
(Tex Crim. App. 1992)(granting re1ief due to lack of iurisdiction); Ex parte Ru§sell,»
738 S. W.Zd 644(Tex. Crim. App. 1986)(qranting relief due to improper admission of void
prior; conviction)hWExmparte Bravo, 702-S.W.2d 189(Tex Crim.App. 1982)(grant1ng relief

do to the improper excusal of a veniremamber) EX parte- Clark1~597 S. W.2d~760(Tex. ¢A~~~

 

v»_-_...._..-..,.',.-~~~-vv,.r.',_-~,,.v',_,,,.....~--...._.....__--..._..~-_.._~v~»...,~_..~'_....-v~..,.._._..

Crim.App.l979)(granting relief due to the trial court' s failure to apply the law to

the facts of the case).

 Here, in applicant' s case now before the Texas Court of Criminal Appeals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of.the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warning" to him as

required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum

of law, pp.14).

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear_that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding

that --"applicant' s Miranda and due process grounds for relief are not cognizable because

 

they were litigated on-direct appeal"-- must be overruled and the cause remanded-back to

the trial court for a new trial.

'Likewise, a review of applicant{s second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, and

voluntarily made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review

lof applicant's fifth ground for review on his habeas corpus petition shows that he

alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth Amendment of the United States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incrdninating

statement against himself. (See: Applicant's Memorandum of Law, pp.17).

Ln summary, after comparing appl icant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that

the claims are not the same because appllcant is now presentlng a const1tutlonal 1ssue

    

the trial court' s finding that --"appllcant's Miranda and due process gf6unds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause should be

reversed and remanded for a new trial based upon grounds number four and five. Appli¢

cant So Moves The Court.

Respectfuny Submitted=
WJMW&@@
Matthew Cotten No. 1826716

Coffield Unit

2661 F.M. 2054
Tennessee Colony, Texas 75884
1n

Certificate Of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct
copy of this foregoing instrument has been served upon Steven W. Conder, Assistant
District»Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th _

day of February, 2015.

gm mm dodge
Matthew Cotten No. 1826716

Applicant, Pro se

 

11

writ N<». c-,432_.010373_1227020-A

Ex Parte In The 432nd Judicial

District Court

mm¢°l¢°?€°b

Matthew Cotten Tarrant County, Texas"

Applicant's Traverse To The Trial Court's Findings Of Facts

And Conclusion Of law
Tp The Honorable Court Of Criminal Appeals:

Now'Comes, Matthew Cotten, Applicant, Pro se, and files this "Applicant's_
Traverse To The Trial Court's Findings Of Fact And Conclusion Of Law" asking the
Court Qf Criminal Appeals to grant this foregoing State post conviction writ of

habeas corpus. And in support thereof will show this court the following:

-Groumds For Relief .
111111;11;110n January..~‘,i;iZOlSw Applicant1f1led~thiswforegoino»wrlt of~habeas~corpus»Wsuse»-v~»¢»~!i

" f alleging five constltutional vlolat1ons during the course of his trial court proceedlng._

 

» In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No.1227020D , is illegal because the "Judgment of ConViction By Court" and the
"Record At Trial" shows that the trial court found only one enhancement paragraph

true; thereby making his punishment excessive.

In ground number two, Applicant contends that his sentence of thirty years in Cause
No.1227020D , is void because the State presented "No Evidence" to support the-
enhancement paragraphs alleged in the indictment, as required by_Section 12.42(d),
Texas Penal Code, thereby denying him due process under the State and Federal Con-

stitution.

In ground number three, Applicant contends that he ,was denied due process and
due, course of law when the State presented "no evidence" to support the enhancement

allegations as required by Section 12.42(d), Texas Penal Code; thereby making his

thirty year sentence void.

t In ground number four, Applicant contends that Detective Anderson violated his -
"Miranda-Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required-by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure.

In ground number five, Applicant contends that Detective Anderson violated his
"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating

statement againstf himself.

Argument And Authorities

Ground Number One

t

In ground number one, Applicant argued that his sentence of thirty years in
Cause No.1227020D is illegal because the""Judgment Of ConViction By Court" and
the "Record At Trial" shows that the trial court found only one enhancement para-

graph true, thereby making his punishment excessive.

State's Reply To Petition For Writ Of Habeas.Corpus

__ In addressing ground number one, the d1str1ct attorney argued that relief should __M n
~'t'~~“~be denied simplytbecause"'fthe indictment'alleged two'prior felony convicti'ons?"a"""*"“

2003 conviction for possession of a firearm by a felon, and a 1997 conviction for
'burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not excessive." (See; State's Reply To Petition For Writ Of Habeas

Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claini that the record affirmatively
reflects that his sentence is illegal because the "Judgment of Conviction By Court" and
the "Reporters Record at trial", both affirmatively reflects that the trial court only
found one enhancement paragraph true, thereby acquitting applicant.of the habitual

offender allegations. (See: Judgment Of_Conviction By Court, Appendix No. 1-5, and
R.R. Vol#Z, Dp§ 109 through pp. 114).

_Applicant maintains that because the "Judgment of ConViction and the Reporter's
1 Record" at trial shows that applicant plead "True" only once during the entire course
of trial, and ~the trial court found only one enhancement paragraph to be true (See:
R¢R. Vol#2,pp.109 through pp.114) there is no evidence contained within the record

to support the trial court's habitual offender finding. Therefore, the habeas court's

findings is not entitled~to-the presumption of correctness under 28 U;S.C.~§2254(e)(l)¢

Habeas Court Memorandum/ Findings

On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney's interpertation of the events on all five constitutional claims

without addresssng applicant's questions of law and fact:

In addressing ground number one, the trial court simply stated without any-
4 decussion--"The Court finds that the applicant's thirty year sentence is not excessive.

The court recommends that this ground for relief be denied." (See:-Memorandum / Findings,

pp. 1 ) -
.....'A;zpi:i”éé'ri€'.'§1':‘1,_'1&.-;’1§)§1§§¢§1:1'611.THe~,Tr~iai-" court"sr.r~ihdiiigsi

.,w.il1Applicant1now1contends1that1the1Court¢of11Criminal“Appealswshouldenoteadoptwthe»;;q

.1L““trial1court!smrecommendation~tohground_number$one1based_uponethe~fact-that»the»trial »»»»»»» »

 

 

court's findings is contradicted by:wthe record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-

ment of ConViction By Court and (R.R. Vol#2,pp.109 through pp.114).

A review of the "Judgment of ConViction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court-found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiver of
JUry Trial"). Likewise, a_ review'ofthe punishment hearing shows .that the`State
never presented any evidenceto support the enhancement allegations thereby making

l the trial court's sentence of thirty years void. Moreover, the record shows that

v the district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested. (R.R. Vol#3,pp.7, line 6 through
pp.8, line 1-15). Nevertheless, without any evidence beingpresented at trial to

support the enhancement ailegation; the trial court illegally concluded:

FBased upon the foregoing evidence and the information that's been provided to

3

-¢¢~:zg;r,-;n
Z\”¢X.
:~,<,-»!-M w
-1

the. court and your admission, the court hereby finds you guilty of all five caus§ `
numbers in 1222336, 1227019, 1227020, 1227021, 1227111, all respectively styled thevw
State of Texas versus Matthew C. Cotten. The respective enhancements are also found
to be true. ln the cause numbers, with the exception of 1227111, the Court hereby

sentences you to 30 years in the Institutional Division of the Texas Department of

 

 

'“'*"‘°"°"(i‘r“.!.””`w vTl.'ti'rTa'i.l:;`_JlB‘l:"i'Ce. in F.l'l:rs"'§“"l‘$ry vc),. 122/111, theCourt nerer sentences you_ to 20 years »

` shows that at thé'jl":

in the lnstitutional Division of the Texas Department of Criminal Justice." (R.R.

Vol#3,pp.86,line 18 throughl pp;87,linel-7).

Section 12.42(d); Texas Penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S. W.3d 508,
511(Tex. Crim. App.2006). IN explaining how Section 12. 42(d) operates, the Court of
Criminal Appeals have consistently held that the State must present evidence which
supports the enhancement allegations contained in the indictment. This is because, if
the proof at trial fails to correspond with the enhancement allegations, the punish-
ment can not be legally enhanced. Cole V. State, 611 S.W.2d,79, 80(Tex. Crim. App.
1981); Mizell V. State, 119 S.W.3d at 806(Tex. App. 2006); Jordan V. State, 256
s.-w.-sd ~290, 2.9~3(~1~9;><.<:1£11“. App. 2'008). ` ` `

-»-~Herer~ln~applicant's case now>before~the»“Court of Criminal Appeals~the»record - 41-
` hearing the State only asked the court to take jpgig:a ¢*

l.I-“

 

notice of the presentence investigation report which did not containr any evidence
of any prior felony convictions. (R.R. Vol#3,pp.7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. ln conclusion, the
findings of the trial court should be overruled and applicant's sentence set aside

and remanded back tothe trial court for a new punishment hearing.

Ground Number Two and Three

In ground number two, applicant argued that his sentence of thirty years is
void because the State'presented "no evidence to support the enhancement allegations
reguired by Section 12. 42(d), Texas Penal Code, thereby denying him due process

under the State and Federal Constitution.

`\ In ground number three, Applicant argues\that he was denied due process and ky
due course of law when the State presented "no evidence" to support the enhancement
allegations as reguired by Section 12.42 (d), Texas Penal Code{ thereby making his

_thirty year sentence-void;

 

;‘=====¥H§HZYEFREETY=To“ titi_"onr“Wrrt“Of*HahéE§’corpus
In addressing grounds two and three, the district attorney argued that relief

should be denied because:

\

"The record herein is not totally devoid of evidentiary support for enhancing

the applicant's sentencing range." (See: State's Reply,pp.$).

More specifically, the district attorney argues that there is some evidence
to support the enhancement allegations based upon (1) "The applicant entered a
judicial_confession admitting to all of the allegations in the indictment, including
the enhancement and habitual allegations; and (2) "The applicant waived his right to
thehappearan¢§,confrontation and cross-examination of witnesses, and consented to oral
and written stipulations of evidence." (State's Reply, pp.5).

However, the district attorney failed to address applicant's constitutional

_11questions;ofilaw;and:fact;regarding»'applicant' siclaimethatfthezState;presented;!noi1111__Mr;

"evidence"“towsupport "the essential elements of the enhancement paragraph as required

by Section 12.42(d), Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure;
and due process under the Fifth and Fourteenth Amendment of the United States Consti-

tution. (State's Reply/ pp.5-6).

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's iudicial confession admitting to all of the allegations in the indictment,
and (2) applicant' s waiver of his right to the appearance, confrontation and cross-
examination of witnesses. " This is because the courts have long held that in all
criminal prosectutions regardless of the plea or`whether the punishment is assessed
by the iudge or the iury, in no event shall a person charged with a criminalj offense

l be convicted upon his plea without sufficient evidence to support the same. Artic1e
1.15, Texas Code Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
Crim. App. 1996); Messer V. State, 729 S.W.2d 694,698(Tex.Crim.App.1986); Stokes V.
Procunier, 744 F.2d at 483; Thompson V. Louisville, 362 U.S. 199, 80 S.CT. 624(1978).

Furthermore, proof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P. S. I. report
1 did not contain certified copies of prior iudgment of convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex.Crim. App.1996). Likewise, in order for
must introduce a copy of the iudgment and sentence in each case for enhancement purpose.
See: Messer, 729 S.W.2d at 698; Stone, 919 S.W.2d at 426; EX parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 S.W.3d at 513.

 

Here, in applicant'S case nomlbefore the Court of Criminal Appeals the record
shows that the district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial are:

*The applicant entered a judicial confession admitting to all of the-allegations

in the indictment, including the enhancement and habitual allegations.

*The applicant waived his right to the appearance, confrontation and cross-
_ examination of witnesses, and consented to oral and written stipulations of

evidence. (See: State's Reply, pp.5).

-;l,r.l,i§§>ilji;lil§il<irl§/~ .t_h`§ lr§e<';_<'?_i§d- gleari `;S;h<l>w$ ; that fcth _§§été ;@ér;ii §§ §§1§11£<§§1;1§1§11?1§ ,
process aid due course of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12;42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth

and Fourteenth Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentia\ elements of the enhance-

' ment allegations true beyond a reasonable doubt.

Habeas Courtbkmrmandum /.Findings

In addressing ground number two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhancement of his sentencing range to habitual offender status~

The Court recommends that.grounds for relief be denied. (See:lkanorandum / Findings,

Tpp; 1).

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's iudicial confession (standing alone) provides some
vevidence supporting the enhancement of his sentencing range to habitual offender AMM*~***W“H
status." Applicant maintains that his indicial confession standing alone is not enough
to support proof of a final ~¢onviction, where the P.S.I. report did not contain
certified copies of prior iudgment of convictions against him. See:'Garcia V. State,
930 S. W.2d 621, 623(Tex. App. 1996); EX parte Brown, 757 S. W.Zd at 368; EX parte

Rich, 194 S. W.3d at 513.

The Texas Court of Criminal Appeals have long held that in all criminal presecu-
vtions regardless of the plea or whether the punishment is assessed by the judge or
the iury, in no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, Texas Code of
‘Criminal Procedure} Stone V. State, 919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer
V. State, 729 S. W.Zd 694, 698(Tex. Crim App. 1986).L1kewlse, allegations of prlor _
convictions contained within the presentence investigation report is inadmissible as

nproof of a final conv1ction, where the P S 1 report did not contain certified copies ;m;_;;

 

"of prior 1udgments of convictions against the applicantr Garcia, 930 S. W.Zd at 623 ...........

 

In summary, the State must introduce a copy of each iudgment of conviction, in each
v case used for enhancement purpose. See: Section 12. 42(d), Texas Penal Code; Terrell

V. State, 228 S.W.3d 343 at 346; Ex parte Rich, 194 S. W.3d at 513.

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
iudicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R§ Vol#2,pp.114, line
16-211 and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1~15). Furthermore, there were
"no evidence"- of prior convictions contained within the P.S.I. report. \Thus, based v
upon the record¢ no rational trier of fact could have found the enhancement allegations'
true beyond a reasonable'd_oubt.l In conclusion, the recommendation of the trial vcourt v
must be overruled and applicant's case remanded back to the trial ccourt for a new

punishment hearing.

Ground Number Four And Five

In ground number four and five, Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendment of the United

State\Constitution when he failed to read the full "Miranda Warning" to him as required

 

uy A.L L,.L\_..Le_`io. /.L § U("a} \ 41 , iv:A`aS"€Ude"Of:€rlml'nal“Pr uLc:\:uu.Lc.

 

 

In ground number five, Applicant argued that Detective Anderson violated his due
process right under the fifth and fourteenth amendment of the United States Constitu¢
tion when he threatend .physical harm to him and his property in order to coerce him

to give a self-jncriminating statement against himself.
state's Reply To Petition For writ of Habeas corpus

In addressing ground number four and five, the district attorney argued that

relief should be denied because:

"The applicant's Miranda and due process grounds for relief are not cognizable
_nbecause.these.same.complaints were reiected on direct appeal.F (See; State!s Reply,
pp.6). '

”"“7““ “"MWIknmwer, thfwdlstrlct attorney has md¥tkfaddress;appli§aht;§:gonstitutihnal“‘“““"1`

 

-~mnwm~questions*of~law;and fact regarding_additional-evidence that.ls.being-presented for__r,-___§
the first time in this foregoing habeas corpus petition that was not presented on
direct appeal. This evidence creates an exception to the general rule that claimsv
raised and reiected on direct appeal are not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852(TEX; Crim. App.1992); Ex parte Goodman, 816 S.W.2d
383, 385(Tex. Crim, App, 1991); Ex parte Russell, 738 S.W.2d 644, 646(Tex. Crim.App.
1986).

Habeas\Court Memorandum / Findings

,In addressing ground number four and five, the trial court erred in stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not cognizable because they were litigated on direct appeal." (See; Memorandum/Finding,

pp. 1\.

court's findingM that:_

Applicant's Traverse Tb The Trial Court's Findings‘

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court' s recommendation that ground four and five be denied based upon the trial
"applicant's Miranda and due process grounds for relief are not cognizable because

they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims now before the court are fundamental constitutional claims that
are based upon newrtheories.that were not presented on direct appeal. Ex parte Good-
man, 816 SQW;Zd 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d 644(Tex.
Crim. App.1986); EX parte Schuessler, 846 S.W.2d at 852(Tex. Crim. App. 1992). The law '
is clear, although habeas corpus is traditionally 4unavailable to review matters'which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fundamental constitutional rights may be raised. Ex parte Schussler, 846 S. W.2d at 852
(Tex Crim. App. 1992)(granting relief due to lack of jurisdiction); EX parte Russell,
738 S. W.Zd 644(Tex. Crim. App. 1986)(granting relief due to improper admission of void

1.pr10r.conv1ct10n)biEx parte Bravo, 702: ms _W.2d 189(Tex Crim.App. 1982)(grant1ngmre11ef

do to the improper excusal of a veniremember): EX parte Clark, 597 S. W.2d 760(Tex.--#~-~~'-~~‘

 

Crim.App.1979)(granting relief due to the trial court's failure to apply the law to
the facts of the case).

Here, in applicant's case now before the Texas Court of Criminal Appeals, the
record ShowS that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article 38.22 of the
Texas Code of Criminal Procedure. (See: Opinion of the Eight District Court of Ap peals,
pp. 4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that --"Detective Anderson violated his
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the United
States Constitution when he failed to read the "full miranda warnin " to him as
required by Article 38¢22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of law, pp.14). '

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's finding
that --"applicant's Miranda and due process grounds for relief are not cognizable because

 

they were litigated on direct appeal"-- must be overruled and the cause remanded -back to

the trial court for a new trial.

'Likewise, a review of applicant's second claim on direct appeal shows that he
argued that his waiver of his statutory rights was not knowingly, intelligently, andv
voluntarily made. (See: Opinion of the Eight Court of Appeals, pp¢5). However, a review
of applicant's fifth ground for review on his habeas corpus petition shows that he.
alleged that --"Detective Anderson violated his due process right under the Fifth and
Fourteenth Amandment of the United States Constitution when he threatened_physical
abuse to applicant and his property in order to coerce him to give a self-incrdninating

statement against himself. (See: Applicant's Memorandum of Law, pp.17).

_In Swm“arv__,a-fte; CQmParinq.apPliCant'S ground-number five i“.~his habeas COrWS
petition to applicant' s claim number two on his direct appeal, it becomes clear that

the claims are notothe same_ because applicant is now presenting a constitut1onal issue

._;0£-qundamentalierror.based.upon_a_theoryln t alleged-on,direct appeal. Consequently, _________

 

 

the trial court's finding that'll“appli§antT§'Hiranda"and"dué“proE§§§”grounds for re-
lief are not cognizable because they were litigated on direct appeal"--must be over-

ruled and the case remanded back to the trial court for a new trial.

Conclusion

In conclusion, the findings of fact and conclusion of law recommended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause should be

reversed and remanded for a new trial based upon grounds number four and five. Appli-

cant So Moves The Court.

Respectfully Submitted:
Matthew Cotten No. 1826716

Coffield Unit

2661 F.M. 2054
Tennessee Colony, Texas 75884
10

Certificate Of Service

I, Matthew Cotten, Applicant, Pro se, do hereby certify that a true and correct

copy of this foregoing instrument has been served upon Steven W. Conder, Assistant

_,lml_mDistrict Attorney, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed on this 25th"w_~*~

day of February, 2015.

Sign: anjJC/\Lw~/ @QM/ v
Matthew Cotten No. 1826716

Applicant, Pro se

 

11

 

 

§drnt.no. c-4azsoid;74-1227pz1_nv

 
 
    
      

 

mine ammerman -;

onserige control /

ny 11

In ground nuber one, Applicant contends that his sentence of thirty years in Cause
No. 1227021D ,_ i§ illegal because the "Judgment of Convictim By Court" and the v
"Record At Trial'_' shows that the trial court found only one enhancement paragraph
true; thereby making his punishment excessive. ff

9

Ia ground nmaher two, Applicant contends that his sentence of thirty years in Cause
No. 1227621D. ,_ is void because the State presented "No Evidence" t`o support the
enhansement paragraphs alleged in the indictment, as required by Section 12. 42(d),
Texas Penal Code; thereby denying him due process under the State and Féderal Cc€r"n-
stitution. . § y § ~

 

In ground amber three, Applicant contends that he was denied due process and

due course of law when the State presented "no evidence" to support the enhancement 4

allegations as required by Section 12. 42(d), Texas penal Code; thereby making his
thirty year sentence void.

l

n»,`

In graman amber four, Applicant contends that Detective Anderson` violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment, when he
failed to read the full "Miranda Warning" as required by Article 38. 22§ 3(a)(2),
Texas Code of Criminal Procedure.

 

q .j. §§ x

In ground nmaber five, App1isant contends that Dstestive Anderso'n violated his

"Due Process Right" under the Fifth and Fourteenth Amendment, when he threatened
physical abuse tp applicant in order to coerce him to give a self-incrimina§_,ing
statement against himself.

 

l Arguuent And Authorities

-.\v.
.\

   

In ground number one, gpplicant argued that his sentence of thirty y_ars in
cause N¢`. 1222336D 1a illegal because the"'»audgi¢snt of conviction B`y court" and §
the "Record At Trial" shows that the trial court found only one enhancement para- 4
graph true, thereby making his punishment excessive.

_"€~ . _ , §§ '?¢

states Repiy 'iv"P§£i£io:n aérjwrnt of;nabeas'corpus

In addressing ground timber one, the district attorney argued that relief should
- be denied simply because -"the indictment alleged two prior felony convictions. a ._
2003 conviction for possession cf a firearm by a felon, and a 19_97 conviction for "
burglary of a habitation. The trial court found these prior convictions to be true.
Thus, the applicant qualifies as a habitual felony offender. The applicant's thirty
year sentence is within the statutory range for a habitual felony offender. As such, - § _
his sentence is not excessive." (See: State's Reply ‘Ib Petition For writ Of Habeas w
Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the rsc':€§)rd.l affirmatively
reflects that his sentence is illegal because the "Judgment of ConViction iBy Court!* and
the "Reporters Record at trial", both affirmatively reflects that the tri_a_l court only

found one enhancement paragraph true, thereby acquitting applicant of the habitual
_ offender allegations. (See: Judgment Of Conviction By Court, Appendix No. 1-5, and

R.R. Vol#Z, pp. 109 through pp. 114).

Applicant maintains that because the "Judgment of ConViction and the R_e_porter’s
Record" at trial shows that applicant plead "True" only once during the entire cours§
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. vol#2¢Pp.109 through pp.lld) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's
findings is not entitled to the preemption of correctness umder 28 t!.s.C. . §2354(e)(1).

mmscourttworandum/Findines

On February 2, 2015, the habeas court issues it's "Memorandum / Findings" adopting
the district attorney' s interpertation of the events on all five constitutional claire
without addressan applicant's questions of law and facts ‘

In addressing ground nunnher_one, the trial court simply stated without any
decussionu--"The' Court finds that the applicant's thirty year sentence is not excessive.
The court tecumends that this ground for relief he denied." (See: Mamrandum / Findings,
pp.l). _ ' ~ \~. . _ .

Applicant's Traveree id The Trial` cmxrt's Findings

Applicant now contends that the Court of Criminal- Aplpeals should not adopt the
trial court's ramendation to ground number one based upon the fact that the trial
court's findings is contradicted by> the record of evidence at trial which shows
that the trial court only found one enhanth paragraph to be true. (See: Judg-
. ment or conviction sy~. court anal?.(~n.uu. voi#z.pp.loe through pp.114).

A review of_the "Judgment of ConViction By Gourt"u at trial clearly shows that
applicantplead "True" to only one amusement paragraph and the trial court found '
only one enhancement paragraph true. (Seec‘ dudgment of Cmvic_tionhy Court-Waiver of
JUry Trial"). l,ike§riee, a revieuofthe punishment hearing shows that the State
never presented any "evidenceto support the enhancment allegations thereby making
the trial court' s sentence o_f_ thirty years void. However, the record shows that
the district attorney only asked the trial court to take judical notice of the
presentence investigation report and then rested. (R.R. Vol#3¢pp»7. line 6 through
pp.8, line 1-l5)~, Nevertheless_, without any evidence beingpresented at trial to
support the _~enhancauent` af§egation, the trial court illegally concluded:

'€uBaaed upon the foregoing evidence and the information that's been provided to

3

the court and your admission, the court hereby finds you guilty of a11 f1ve cause
numbers 111 1222336, 1227019, 1227020, 1227021, 12271_11, all respectively styled the
State of Texas versus Matthew C. Cotten. The respmtive enhancenents' are al_so found
to be true. In the cause numbers, with the exception of 1227111, the Court hereby
sentences you to 130 years in.5 the Institutional Division of the Texas Department of
Crimina1 Justice 1511 Cause No. 1227111, theCourt hereby sentences you to 20 years
in the Institutional Division of the Texas Department of Criminal Justice.'¥ (R.R.
Vol#3,pp. 86, line 18 through pp.87,_1ine1-7). ' '

Section 12. 42(d), Texas Pena1 Code governs the pun1slment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich,5 194 S5. W. 3d 508,
511(Tex_.' Cr1n1. App.2006) IN explaining how Section 12 42(d) operates, the Court 6f
Criminal Appeals have consistently held that the State must present evidence which
supports the enhancement allegations contained in _t3he indictnent. This is because, 11_`

 
  

the proof at trial fails t6 correspond with the enhancement allegations, the punish-

ment can 59n0t be legally enhanced. Cole V. State, 611 S.w.2d 79, 80(‘15'ex. Crim. App., -
1981); 1112ell_ V. State, 119 S.W.3d at 806('1_"e'x. App. 2006); Jordan V. lState, 256
s.w.ad 290, 293('rex crim. App. 20031. ' ~ 5 ‘
`*Here, in applicant's case now before the Court of Criminal Appeals the record
55 551 5 hearing the State only asked the court to_ take judicial

    

shows that at thejj " .
notice of the presentence investigation report which did not contaim5 any evidence
of any prior felony convictions. (R.R. . Vol#3,pp.7, line 6 through pp.8, line 1_.-15)
Thus, the record clearly shows that the State presented no evidence to support the
enhancement allegations. Consequently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the 5
findings of 5the trial court should be overruled and applicant's sentence set aside
and remanded back tothe trial court for a new plmishment hearing.

In ground number two, applicant argued that his sentence of thirty years is
void because the State presented "no evidence to support the enhancement allegations .

required by Section 12. 42(d), Texas penal lCode, thereby denying him due process _»
\mder the State and Eederal Constitution. . »

In ground number three, App1icant argues that he was denied due process and
due course of law when the State presented "no evidence" to support the enhancement
allegations as required by Section 12 42 (d), Texas Penal Code, thereby making his
thirty year sentence vOi§. -

State's Reply 1'0 petition _For Writ Of Habeas Corpus 1 ` 1 , 1

 

"The record herein 1a not totally devoid of evidentiary support for enhancing
the~applicant's sentencing range." (see, State 5 Reply,pp,§) § ',5, ?;

lmra specif:ica`lly, the district attorney argues that there is sms evidence v
to support the enhancement allegations based upon (1) "'I‘he applicant entered a1 , ;-1._
judic1a11;f confe 4;1on admitting to all of the allegations in the indictment, including
the enhancement and? habitual allegations; and (2) "The applicant waived"his right to
the appeamce, confrontation and cross-eilamination of witnesses, and consented to ora1

and written stipulations¢of evidence." (State's Reply, pp.5). : ' `1 "

|."l1
31:‘

 

 

   

   

 

However,¢ the district attorney failed to address applicant's constitutional - .4-1".
question§ of law and fact regarding applicant's claim that the State presented '.'no 1
evidence" to support the essential elements of the enhancement paragraph as required

.. by Section 12. 42(d)`, lIq'ex:-is Fenal Code; Article 1 15, Texas Go_de of Criminal Procedure;

and due process under the Fifth and Fourteenth Anendnent of the United States Consti-
tution. (State' s Reply, pp.__5-6). "
App1icant maintains that proof of prior felony convictions requires more_' than (1)
applicant's judicial confession admitting to all of the allegations in the indictment,'
and (2) applicant's waiver of his right to the appearance, confrontation _a`nd cross-
examination of witnesses." This is bmause the courts have long held that in all
criminal prosectutions regardless of the plea or whether the punisl'm\mt is assessed
by the judge or the jury, in no event shall a person charged with a crimina_l`f.§‘- offense
be convicted upon his plea without sufficient evidence to support the same. Article
1 15, Texas dode Of Criminal Procedure; Stone V. State, 919 S.W.2d 424, 426 (Tex.
crim. App. 1996); Messer v. stace, 729 s.w.zd 694,698('rex.cr1m.App.1986);stokes v.
Procunier, 744 é,.zq`;at.¢zas; ramon v. louisviue`, 362 n.s. 199, ao s.cr.'1624(1`97a)...~

/ _1 ' el

Furthermore, proof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
did not contain certified copies of prior judgment of convictions against the appli-
cant. Garcia V. State, 930 S..W.Zd 621, 623(Tex. Crim. App.1996). Likewiso, in order for
a stipulation to be considered as evidence where the plea is before the court, the state
must introduce a copy of the judgment and sentence in each case for enhancement purpose
Seec Messer, 729 S.W.2d at 698; Stone, 919 S.w.2d at 426; Ex parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 S.W.3d at 513. ‘ ~' ~ 1

Here, in'iiappli"cant's case new before the Court of Criminal Appoale"the record
shows that the district attorney admitted that the only evidence supporting the
enhancing of applicant's punishment at trial ares ». `

*The applicant entered a judicial confession admitting to all of the allegations

in the indictment, including the enhancmont and habitual allegations. _

*'Ihe applicant !"waived his right to the appearance, confrontation and cross-
ownination of witnesses, and consented to oral and written stipulations of
evidence. (See: State's Reply, pp.5). ' ‘ ' '

In conclusion, the record clearly shows that the State denied applicant due
process and due ccm_§"}seiiof law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas penal code; mine 1.15, rees code or criminal Procedure; and the Fifth
and Fourteench Amendnent of the united States Constitution. Consequently, no
rational trier of fact could have found the essential elements of the enhance-
mont allegations true beyond a reasonable doubt. ‘

mbeascourt!iemorand\m/Findings

In addressing ground number two and three, the trial court erred in stating z
"The Court finds that the applicant's judicial confession provides some evidence
supporting the enhanc@xent of his sentencing range to habitual offender status.
The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

ppa 1).

Applicant’s Tr_av_orse‘l'o The Trial court's Findings

Applicant now contends that the court of Criminal Appeals should not adopt the
trial court's rcommondation that ground two and three be denied based upon the trial
court's finding that;-'-"applicant's judicial confession (standing alone) provides some
evidence supporting the enhancement of his sentencing range to habitual offender v
status." Applith maintains that his judicial confession standing alone*» is not enough
to support proof of~ a final i_"ironviction, where the F.S.I. report did not contain _
certified copies of prior judgment of convictions against him. S_ees§ Garc\e 7;. State,
930 S.W.2d 621, 623(Tex.` App. 1996); Ex parte Brown, 757 S.W.2d at 368; Ex parte
Rich, 194 s.W`.3d at 513. f l . l . if":~..

   

The '1mca__s" court of criminal Appeals have long held that in all criminal prosecu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the jury, in `no event shall a person charged with a criminal offense be convicted upon
his plea without sufficient evidence to support the same Articlo j1. 15, Texas Code of
criminal Procedure; Stone V`. State, 919 S.w.2d 424. 426('I'ex crim. App.`; 1996); Messer
V. State, 729 S.W.2d 694, 698(Tex crim.App. 1986).1.Ikewise, allegations of prior '
convictions contained within the presentence investigation report is inadmissible as
proof of a final conviction, where the P.S.I. report did not contain certified copies

iof prior judgments of convictions against the applicant. Garcia, 930 S.W.2d at 623. ’
In smary, the State must introduce a copy of each judgmnt of conviction, in each
case used for enhancement purpose. Seex Section 12. 42(d), Texas Penal code; Terrell
V. State, 228 S.W.3d 343 "at 346; Ex parte Rich, 194 S.W.3d at 513.

Here, in applicant's case now before the Texas court of criminal Appeals, the
record shows that the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#2,pp.11‘4, line
16-21) and (R.R. Vol#3,pp. 7, line 6 through pp.8, line 1--15) Furthermore, there were
"no evidence" of prior convictions contained within the P.S.I. report. , i';Thus, based
upon the record, no rational trier of fact could have found the enhancement allegations
true beyond a reasonable doubt. In conclusion, the recommendation of the trial court
must be overruled and applicant's case remanded back to the trial court for a now
punishment hearing. " "

.\i

emma manor motive

_ In ground number four and five, Appli ant argued that Detective Anderson violated
his Miranda Ri___ght guaranteed to him by the fifth and fourteenth amendment of the United
State constitution when he failed to road the full "Miranda Warning" to him as required

_ by Article 38522 § 3(a)(2), Texas code of criminal Proceedure. '

r‘.

_ y In ground number five, Applicant arg; `od that Detective Andorsan violated his due
process right»under the fifth and fourteenth amendment of the I!ni='ted_ States Constitu-
tion when he threatend physical harm to him and his property _i_n order ita coerce him
to give a solf_- incriminating statement against himself. "

§ .

 

 

ln addressing ground number four and five, the district attorney argued that
' relief should be denied because: ' _ . ., :'. __:f_' »_ §

"The applicant's Miranda and due process grounds for relief are'i§ nat cognizable '- ‘,
because these same complaints wore rejected on direct appeal." _(Seo; _Stato's Reply,
ppos)o n ' ‘ '

_‘.J_, `.
` i

_ However,_ the district attorney has failed ta address applicant's constitutional
questions of law an_d fact regarding additional evidence that is being presented for 1
the first time in this foregoing habeas corpus petition that was not presented on_ '
direct appeal. 'I'hi_s evidence creates an oxcepti_on to the general rule that claims
raised and rejected on direct appeal are nat cognizable an habeas corpus. Ebr parte
Schuessler, 846 _S. W__._Zd at 852(_.'!’}?.:: Crim. App.1992); Ex parte Goodman', 816 S.W.2d

383, 385(Tex. Crim, _App. 1991); Ex parte lRussoll, 738 S.W.2d 644, 646(‘Imr.__ crim.App.
1986). v _"f _~ __ ' ."

In addressing ground number four and five, the trial court erred in stating:
"The Court finds th_at the applicant's miranda and due process grounds for relief are
not cognizable because they were litigated on direct appeal." (See: Memorand\mw?‘inding,

!

pP- 1)~ _ ` €~_'

y

Applicant's Traverse 'ro 'nze Trial szrt’a Findings

l Applicant now contends that the Court of Criminal appeals should not adopt the
trialé=‘. court'e recommendation that ground four and five he denied based upon the trial
court's finding thata '

"applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal." (See: Memorandum / Finding, pp.l).

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procedural bar,
because his claims nov before the court are fundamental constitutional claims that
are based upon nev theories that were not presented on direct appeal. Ex parte Good-
"man, 816 en 2a 383_, 385(Tex. crim. App. 1991); tx parte main 738 s.w__.2d §44("1'@¢.
Crim. App.l986); Ex parte Schuessler, 846 S.W.2d at 852(‘!#@:. Crim. App. 1992). The law
is clear§ although habeas corpus is traditionally unavailable to review inatters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking ~
fmrdmental constitutional rights may be raised. Ex parte Schuss|_§a`r, 846 S__.W.2d at 852
(‘Dex. Crim. App._ l992)(granting relief due to lack of jurisdiction); fur parte Russell,
738 S.W.2d 644('Pex.. Crim. App 1986)(granting relief due to improper admission of void
prior danviction): ax parte Bravn, 702 s.w.2d lae(m crim.App. 1982)(granting relief
do to the improper excusal of a venirenmber): Ex parte Clark, 597 S.W.2d 760(Tex
Crim.App.1979)(granting relief due to the trial court's failure to apply the. law to '
the facts of the case). `

§ ` Here, in applicant's case now before the Texas Court of Criminal Apneals, the
record shows that on direct appeal Cotten argued that the trial court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda v. Arizona, and his statutory rights under Artiole 38.22 of the
Texas Code of Criminal Procedure. (See¢ opinion of the Eight District Court of Appeals'
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he nov argues that -z"Detectiva Anderson violated his
Miranda night guaranteed to him by"the Fifth and Fourteenth moment or the united
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38. 22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memorandum
of lav, pp. 14).

 

w
lV

After comparing applicant's ground nulnber four in his habeas'corpus petition to
applicant's claim3 nuinber "one on direct appeal it becomes clear that the claims are not
the same, because applicant is now presenting a constitutional issue of fundamental error
based upon a theory not alleged on direct appeal. Consequently, the trial court's _fin__ding_
that -"applican_t's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal"- must be overruled and the cause remanded back to
the trial court for a new trial. '

.u,,
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. . . . "i .,
.e_?;j V `j ‘ d j"
.»` '$.

Lil"c'ewi`se', ja review of applicant's second claim on direct appeal shewe that he `7
argued that his waiver of his statutory rights was not knowingly, intelligently, and `F"
voluntar1ly made. (See: Opinion of the Eight Court of Appeals, pp.5). However, a review
" of applicant's fifth ground for review on his habeas corpus petition showe that he
alleged that --"Detective Anderson violated his due process right under the Fifth and§
Fourteenth Amandment 5f the United States Censtitution when he threatened physical
abuse to appl1cant and his property in order to coerce him to give a self-incriminating
statement against himself. (See: Applicant‘s Memorandum of Law, pp.l_‘?) j "'.: "'

i v . ‘

. 1 l li
.. v,_ § _ .» . §
" ' ' : ii

ln` simmary, after comparing applicant's ground number five in his habeas corpus
petition to applicant's claim number two on his direct appeal, it becomes clear that
the claims are net the same because applicant is now presenting a constitutional issue
`of fundamental error based ilpen a theory not alleged on direct"appeal. Conse§uently, ,
` the trial court's finding that -"applicant‘s Miranda and due process grounds for re-
4 `lief are not cognizable because they were litigated on direct appeal"--lmlst be over- 'F
ruled and the'case remanded back to the trial court for a new trial.` "

" musical

In conclusion, the findings of fact and conclusion of law reconmended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause shc_§uld be
reversed and remanded for a new trial based upon grounds lumber four and five. Appli-
cant so waves-The cpurt. `

nespectfdlly suhmltted=
lél¢a)¥§h§¥dc§§§€n No. 1826716 ‘

"¢ _ ‘ ' 2561 F.M. 2054 1
Tennessee Colony, Texas 75884
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"~§~1 " Certificate Of Service

   

I, Matthew Cctten,_ :Applicant, Pro se, do hereby certify that a@true and correct

'1"_¢."‘

copy of this foregoing instrument has been served upon Steven w. Conder* Assistant _,
District Atto_rne`y_, 401 W. Belknap, Fort Worth, Texas 76196-0201. Executed op this 25th

    

 

day of February, 2015. - l ‘ ‘ . . ~§ _
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, '. ; i`» f » y ‘ Applicant, pro '
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.l;,`zzrrit No. c-432-60146’3`7‘5~`-31-2271'11"-A .

nearest mohammad

  
 

 

maurice conn -

  

 

January 4, 201{:, Appiicant £'iied this foregoing writ of hames corpus ' , ~ ‘
alleging;: five constitutional melolations during the course of his tria.. court proceeding. "
In grazind nuber m,` Applicant contends that his sentence of twenty years in Cause
No. 1227111D ¢ is i'-ilegal because the "Judment of Gomrictim By Court" and the
"Record At Triai" shows that the trial court found only one enhance:nent paragraph
true; thereby making his punishmt excessive.

In ground homer ntvo, Applicant contends that his sentence of thirty years in Cause
No. '1.227111D . is void because the State presented "No Evidence" to support the
enhancement paragraphs alleged in the indictment, as required by Section 12.~_42(_¢1),l
Texas Penal Code, thereby denying him due process under the Stati§:and Federal Con-
stitution.

In gra\md hunter three, Applicant contends that he was denied due process and
due course of lew when the State preth "no evidence" to support the enhancemnt

allegations as required by Section 12.42(d), Texas Penal Code; thereby making his
thirty year sentence void.

In ground nqu four, Applicant contends that Detective Anderson violated his
"Miranda Right" guaranteed to him by the Fifth and Fourteenth Amendment,“.‘;`wh;en he
failed to read the full "Miranda Warning" as required by Article 38.22§ 3(a)(2),
Texas Code of Criminal Procedure.

In ground elmer five, Applicant contends that Detective Andereon violated his '
"Due Process Right" under the Fifth and Fourteenth mendmant, when he threatened
physical abuse to applicant in order to coerce him to give a self-incriminating
statement against himself.

>
..‘7_¢",. \;`.

._,,,‘ -

 

Argmnent And Authorities
Ground Nlmzher' One

In ground number one, Applicant argued that his *sentence of twenty years in
Cause No. 122711.,1D is illegal because the""Judgth of ConViction By Court" `and
the "Record At Trial" shows that the trial court found only one enhancement para-»
graph true, thereby making his punishment elmessive.

stata's`aeply no Petition ear writ or Habeas corpus

In addressing ground_,;number one, the district attorney argued that relief should
be denied simply because --"the indictment alleged two prior felony ccmvic:`tionsl a '
2003 conviction for possession of a firearm by a felon, and a 1997 conviction for 5
burglary of a habitation. The trial court found these prior convictions to be true. `
year sentence is within the statutory range for a habitual felony offender. As such,
his sentence is not soccessive." (See.- State’s Reply 1b Petition For Writ Of Habeas
Corpus, pp.4).

However, the district attorney failed to address applicant's constitutional
questions of law and fact regarding the applicant's claim that the record affirmatively
reflects that his sentence le illegal because the "Judgment ar conviction ay'court" ana
the "Reporters Record at trial", both affirmtively reflects that-the trial court only

found one enhancement paragraph true, thereby acquitting applicant of the ;habitual
offender allegations. (See: Judgment Of Comriction By Court, Appendix No. 1-5, and

R.R. Vol#2, pp. 109 through pp. 114).»

   

“`¢'~..='
. , .

Applicant maintains that because the "dudgment of Conviction" and the Reporter's n
Record"_ at trial shows that applicant plead "True" only once during the entire course
of trial, and the trial court found only one enhancement paragraph to be true (See:
R.R. Vol#2iPp.109 through pp.114) there is no evidence contained within the record
to support the trial court's habitual offender finding. Therefore, the habeas court's
findings is not entitled to the presumption of correctness under 28 U.S. C. §2254(e)(1).

 

mbeascourtnennrand\m/Findings

0n February 2, 2015, the habeas court issues ist' "Die¢ibrandum / Findings" adopting
the district attorney s interpertation of the events on all five constitutional claims
without addresssng applicant's questions of law and facts `

'r-v»s t
~~ :,1» _

In addressing ground number one, the trial court simply stated without any `
decussion--"'Ihe Court finds that the applicant's thirty year sentence is 'not ex`_i:essive.
'I“ne court recommends that this ground for relief be denied." (See: Memorandum / Findinge,
PP¢l)» " 4 ' -1::' - \:;

Applicant's Traverse 'Ib The Tr__ial omart's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
- trial court's recommendation to ground nmnber one based upon the fact that the trial
court's findings is contradicted bly the record of evidence at trial which shows
that the trial court only found one enhancement paragraph to be true. (See: Judg-
ment of convictipn "By. court ansl:;(n.n. v`o,l#z,pp.log through pp.114);

A review of the "Judgment of Conviction By Court" at trial clearly shows that
applicantplead "True" to only one enhancement paragraph and the trial court found
only one enhancement paragraph true. (See: Judgment of ConvictionBy Court-Waiwer of
JUry Trial"). L_ikewise, a reviewof the punishment hearing shows that the State
never presented any evidenceto support the enhancement allegations thereby making
the trial court's @ntence of twenty years void. Moreover, the record shows that
the district attorney only asked the trial court to take judical notice of the _
presentence investigation report and then rested. (R. R. Vol#3,pp.7, line 6 through
pp.8, line 1-15)'. Nevertheless, without any evidence beingpresented at trial to
support the enhancement allegation, the trial court illegally concluded:

‘;§‘Based upon the foregoing evidence . and the information that's heen provided‘to

3

the court and your admission, the court hereby finds you guilty of all five cause
numbers in 1222336, 1227019. 1227020, 1227021, 1227111, all respectively styled the
State of Texas versus Matthew C. Cotten.Thc respective enhancements are also found
to be true. In the cause nmnbcrs, with the conception of 1227111, the court hereby
sentences you to 30 years in the Institutional Division of the Texas Departmnt of
CrimineL Justicc. I~n Cause No. 1227111. theCourt hereby sentences you to` 20 years
in the Institutional Div_ieion of the Texas Department of Criminal Justice." (_R.R.
Vol#B,pp.B€,line 18 through pp.87,1ine1-7). '

Section 12 §2(§), 'chas penal Code governs the punishment for habitual felony
offenders, and requires the State to present evidence of two prior felony offenses
inorder to sentence anyone as a habitual offender. Ex Parte Rich, 194 S.W.BS 508, 1
511(Tex. Crim. App.2_006). IN explaining how Section 12.42(d) operates, the Court of
Criminal Appcals havc consistently held that the State must present evidence which
supports the enhancement allegations contained in the indictment. 'i?_\is is because ii’
the proof at trial fails to correspond with the enhancement allegations, the punish-§
ment can not bc legally enhanced. Cole V. State, 611 S.W.2d 79, 80(Tex Crim. App.
1981); Mizell V._ State, 119 S. w.3d at SDS(Tex. App» 2006): Jordan V. State,l 256
S.W.3d 280, 293('rwi. Crim. App. 2008). ‘

Here, in applicant's case now before the Court of Criminal Appeals the record
shows that at thc v hearing the State only asked the court to take judicial
notice of the presentence investigation report which did not contain€_‘j, any evidence
of any prior felony c<mvict_ions. (R.R. \ Vol83,pp.'7, line 6 through pp.8, line 1-15).
Thus, the record clearly shows that the State presented no evidence to support the
wabancencr:t allcgations. Conscwently, no rational trier of fact could have found
the enhancement allegations true beyond a reasonable doubt. In conclusion, the
findings of the trial court should be overruled and applicant‘s sthence set aside
and remanded back tothe trial court for a new punishment hearing.

 

In ground number two, applicant argued that his sentence of twenty years is
void because the State presented "no evidence to support the enhancement allegations '
required by wion 12. 42(d), Texas penal Code, thereby denying him due process
under the State and Federal Gcmstitution. ' ' ' h

In ground sumner three, Applicant argues that he was denied due§i` process and
due course of law when the State presented “oo evidence" to support the asilencement
allegations ss required by Section 12.42 (d)`, Texas Penal Code; thereby mexing his
twenty:` year sentence v6id.

_'~')

State's R_olll¥ 1b Petition For writ or lhwca corpus

In addressing grounds two and three, the district attorney argued that relief
should be denied because: _1:';‘, ‘ ‘

 

:'.: F'
ll ‘ § `
'\.

 

"The record herein is llot totally devoid of evidentiary support for enhancing

tha applicant's sentencing range." (See: stamp Reply,`pp~,§)._, y

  

_ lmra specifically, the district attorney argues that there is acme evidence;'[":
to support the enhancement summons based upon (1) "The applicant entered a H
, judicial confession admittingto toall of tila allegations in the indictment, including
the enhancement and habitun1 allocations; and (2) "The applicant wailrsd his right to
tila appearance,confrontetlcm end cross-examination of witnesses, end msantad to oral
and written stipulations of evidence." (State's Reply, pp.5). " ‘ " "

.¢ ai§-
9 t

However, the district attorney failed to address applicant's constitutional
questions or law and fact regarding applicant's sclain that tila State presented *_‘.no
mdsncef' to support tila essential elements of tila enhancement paragraph as required
by Section 12.42(d), Texas Penal Code; Article l 15, Texas Code cf Crirlinal Procedure;
end due process leader tile Fifth and Fourteenth Aulandmant of ths United States Consti-f»
tution. (State's Reply, pp.S-G). '

Applicant maintains that proof of prior felony convictions requires more than (1)
applicant's judicial confession admitting to all of the allegations in the indictalent,`
and (2) applicant's waiver of his right to the appearance, confrontation and cross-
examination of witnesses." This is because the courts have long held that in all
criminal presentations regardless of the plea or whether tila punishment is assessed
by the judge or 'jthe jule in no scant shall a person charged with a criminal g offense
be convicted upon his plea without sufficient evidence to support the same. Arti"c`l)e
1 15, Texas Code Oi’ Criminal Procedure; Stone V. State, 919 S.w.Zd 424, 426 (Telc.
Crim. App. 1996); Messer V. State, 729 S.w.Zd 694 698(Toac.€rim.hpp.1985); Stokas V.
newman 744 seq at 433; mann v. louisville 362 ll.s. 199, ao`s.cr.. 6234(1973.)._»

.'x'-

Furthermre, proof of prior convictions contained within the presentence inves-
tigation report is inadmissible as proof of a final conviction where the P.S.I. report
did not contain certifved copies of prior judgment of convictions against the appli-
cant. Garcia V. State, 930 _S_..W.Zd 621, 623(Tex. Crim. App.1996) I.ikewise, in:: order for
a stipulation ’tol be cxmsidered as evidence where the plea is before the court, the state
must introduce a_- copy of the judgment and sentence in each case for enhanth purpose.
See: Messer, 729 S.W.2d at §98; Stone, 919 S.W.2d at 426; Ex parte Brown, 757 S.W.2d at
368; Ex parte Rich, 194 s.w.zd at 513. _~:e.,__{ _ § ` ' »

§§ 111 § ' '
1 Here, in applicant's case now before the Court of Crimin31 Appeals the record
- shows that the` district attorney admitted that the only evidence supporting the

enhancing of applicant's punishment at trial ares § ~ "" 11

*'Ihe applicant entered a judicial confession admitting to all of the allegations
in the indictment, including the enhancement and habitual allegations. _

 

 

x

 

 

. »,`(' v

*The applicant waived his right to the appearance, confrontation and cross-
h examination of witnesses, and consented to oral and written stipulations of
evidenced (See: State's Reply, pp.5). ' ` ` '

In conclusion, the record clearly shows that the State denied applicant due
process and due couiise of law when the district attorney presented "no evidence"
at trial to support the enhancement allegations as required by Section 12.42(d),
Texas Penal Code; Article 1.15, Texas Code of Criminal Procedure; and the Fifth
and Fourteenth§ Amendment of the United States Constitution. Consequently, no
rational trier of fact could have found the essentis\ elements of the enhance-'-
ment allegations true beyond a reasonable doubt.

In addressing ground nimmer two and three, the trial court erred in stating :
"The Court finds that the applicant's judicial confession provides scans evidence

supporting the enhancement of his sentencing range to habitual offender status.
The Court recommends that grounds for relief be denied. (See: Memorandum / Findings,

pp. 1)

Applicant's Traverse mo 'Iho-"l‘rial Gmart's Findings

App1ic_ant now contends that the Court of Criminal Appeals should not adopt the
trial court's recommendation that ground two and three be denied based upon the trial
court's finding that--"applicant's judicial confession (standing alone) provides some _
evidence supporting the enhancement of his sentencing range to habitual offender
statua." Appiicant maintains that his judicial confession standing alone '<'is not enough_`
to support proof of a final g'conviction, where the P.S.I. report did not contain `
certified copies of_: prior judgment of convictions against him. Sees Garci_a V. State,
930 S.W.2d 621, 623(Tex App. 1996); vt parte Brown, 757 S.w.Zd at 368; vc parte
_Rich, 194 S.W.3d at 513.

The 'Iw:aa Court of criminal Appeals have long held that in all criminal pr_e_secu-
tions regardless of the plea or whether the punishment is assessed by the judge or
the jury, in `no event sha11 a person charged with a_ criminal offense be convicted upon
his plea without sufficient evidence to support the same. Article 1.15, ‘I‘e)ms` Code of
Criminal Frocedure; Stone V. State, 919 S.W.2d 424. 426(Tex. Crim. App. 1996); Messer
v. state, 729 s.w.za 694, egsc'rex.crim.npp.1936).1.1)¢¢11¢139, allegations or prior '
convictions contained within the presentence investigation report is inacm_\iseible as
proof of a final conviction, where the P.S.I. report did not contain certified copies
of prior judgments of convictions against the applicant._ Garcia, 930 S.W. 2d at 623.
In smary, the State must introduce a copy of each judgment of conviction, in each '
case used for armonth purpose. Seea Section 12 42(d), Texas Penal code; ferrell
V. State, 228 S.w.$d 343 at 346; vc parte Rich, 194 S.w.3d at 513._

Here, in applicant's case now-before the Texas Court of Criminal Appeale, the
record shows that the State prosecuting attorney only asked the trial court to take
judicial notice of the presentence investigation report and then rested without pre-
senting any evidence of a judgment of prior conviction. (See: R.R. Vol#Z,pp. 1§\4, line
16-21) and (R.R. Vol#$,pp. 7, line 6 through pp.8, line 1-15). Furthermore, there were
"no evidenc~‘-au of prior convictions contained within the P.S.I. report. iié}Thus, based
upon the record, no rational trier of fact could have found the enhancenxent allegations
true beyond a reasonable doubt. In_ conclusion, the recommendation of the trial court
met be overruled and_:_applicant’s case remanded back to the trial ._ ;court for anew `
punishment hearing.

Grmmdmower¥mrand Five‘

In,-ground_ number four and five, Applicant argued that Detective Anderson violated
his Miranda Right guaranteed to him by the fifth and fourteenth amendmnt of the United '
State Constitution when he failed to read the full "Miranda Warning" to him as required
by Article 38.221§ 3(a)(2), Texas Code of Criminal Proceedure. ' '

In ground number five, App1icant argued that Detective Andarson~ violated his due
process right under the fifth and fourteenth amendment of the United States Constitu-
tion when he threath jtphy_sical-- harm to him and his property in order to coerce him
to give a self-lncriminating statmant against himself. '

\ ' ,-;g.

 

, scate's Reply,'.mvatitijm For writ cfr leases corpus 1 1

l In addressing ground number four and five, the district attorney argued that
relief should be denied because: ' ' ~ ‘ ‘ ‘ ‘ "

"The applicant's Miranda and due process grounds for relief ‘are not izable
because these same complaints were rejected on direct appeal." (See, State,$ Reply,

However, the district attorney has failed to address applicant's constitutional 1
questions of law and fact regarding additional evidence that is being prcsr~.\,x,n:¢..=dm for
the first time in ,thié.foregoing habeas corpus.petition that was not presented on
direct appeal. 'Ijhie evidence creates an exception to the general rule that claims
raised and rejected on direct appeal stare not cognizable on habeas corpus. Ex parte
Schuessler, 846 S.W.2d at 852('1‘£:~:. `Crim. App.1992); Ex parte`Gooman, 816 S.w.Zd
383, 385(Tex Crim, App. 1991); EX parte Russell, 738 S.W.ZG 644, 646(Tex Crim.App. '
1986). '

!n addressing ‘,|gro\md number four and ..five,_ the trial court erred in,stating:
"The Court finds that the applicant's miranda and due process grounds for relief are

not lmizahle because they were litigated on direct appeal." (See: Memorandum/Finding,
Pp- 1)

Applicant's Traverse To The Trial Court's Findings

Applicant now contends that the Court of Criminal Appeals should not adopt the
trial court's reconmendation that ground four and five be denied based upon the trial
court's finding that: ‘ V, ' , 4

~ "applicant's Miranda and due process grounds for relief are not cognizable because
they were litigated on direct appeal." (See: Dienprand\m / Finding, pp.l) `

Applicant maintains that his claims presented in ground numbers four and five
of the foregoing habeas corpus petition should not be subjected to procwural bar, l v
because his claims now before the court are fundamental constits_i.tional claims that l
are based upon new theories that were not presented on direct appeal. Ex parte Good- -
man, 816 S.W.2d 383, 385(Tex. Crim. App. 1991); Ex parte Russell, 738 S.W.2d 644(Tex
Crim. App.1986); m parte Schuessler, 846 S.W.2d at 852('I'ex. Crim. App. 1992) The law
is clear, although habeas corpus is traditionally`;»;€ unavailable to review matters which
were raised and rejected on appeal, claims involving jurisdictional defects or invoking
fmdamental constitutional rights may be raised. Ex parte Schussier, 846 S_'.w.2d at 852
('I'ex. Crim. App. 1992)'(granting refilief due to lack of jurisdiction); Ex parte:Ru'ssell,
738 S.W.2d 644('l‘ex. Crim. App. 1986)(granting relief d'ue to improper admission of void
prior conviction); fcc parte Bravo, 702 S. W. 2d 189(*I'ex Crim.App 1982)(granting relief
do to the improper excusal of a veniremember)c Ex parte Clark, 597 S.W.2d 760(Te`x. `
crim.App_.lQ?Q)(gran_t-,ing relief due to the trial court's failure to app1y the law to ‘.
the facts of the case) ' `

Here, in applicant's ease now before the Texas Court of Criminal Appeals, the
record shows that on direct'appeal Cotten argued that the trial ";;‘court erred in failing
to suppress his first statement because it's procurement violated his constitutional
right under Miranda V. Arizona, and his statutory rights under Article __38. 22 of the
'Iexas Code of Criminal P¢=“‘.oeedure. (See: Opinion of the Eight District Court of Appeals,
pp.4). However, a review of applicant's habeas corpus claim now before the Court of
Criminal Appeals shows that he now argues that _-"Detective Anderson violated hits
Miranda Right guaranteed to him by the Fifth and Fourteenth Amendment of the tmited
States Constitution when he failed to read the "full miranda warning" to him as
required by Article 38.22 § 3(a)(2), Texas Code of Criminal Procedure. (See: Memrand\m
of Law, pp.14). '

After comparing applicant's ground number four in his habeas corpus petition to
applicant's claim number ¢~?§l'one on direct appeal it becomes clear that the claims are not
the sme, because applicant is now presenting a constitutional issue of fundamental error

' based upon a'theory not alleged on direct appeal.' Conse@ently, the trial court's "findin'g'~
that --"applicant's Miranda and due process grolmds for relief are not cognizable because
they were litigated on direct appeal"-- must be overruled and the cause rma_ndsd back to
the trial court for a new trial.

Likewise,` a" review of applicant's sacond claim on direct appeal shows that he
argued that his uaiver of his statutory rights was not knowingly, intelligently, and "
voluntarily made. (See: Opinion of the Eight Court of Appeale‘¢ p`P-S). However, a review
of applicant's fifth §round for review on his habeas corpus petition shows that he
alleged that -“Detective Anderson violated his due process right under the Fifth and
Fourteenth Amandment of the united States Constitution when he threatened physical
abuse to applicant and his property in order to coerce him to give a self-incrini nating
statement against himself. (Seel Applicant's Memorandum of Law,' pp.l?). ` ‘
In s\mmary, after comparing applicant's ground number five in` his habeas corpus
z petition to applicant's claim lamar two on his direct appeal,' it because clear that
" the claims are not the same because applicant is now presenting a constitutional issue _
" of_ .__-.';fundamental error based upon a theory not alleged on direct`appeal. Consequently,
tithe trial court's finding that `-~"applicant' s Miranda and due process grounds "for res
" lief are not cognizable because they were litigated on direct appeal"--must be over-

' ruled and the case remanded back to the trial court for a new trial. ' ' '

' cmclusion

In conclusion, the findings of fact and conclusion of law recamnended by the
trial court must be overruled and applicant granted a new punishment hearing based
upon grounds one, two and three. Or in the alternative, applicant's cause should be
reversed and remanded for a new trial based upon grounds number four and five. Appli-

. cant So Hoves The Court.

Respect£ully Submitted;

assume N°- umw

26611F.M.= 2054
Tennessee Colony, Texas 75884
10

 

d rrrrrrrr

"cenifieaee or semeé

I¢ !Dtthew Cotten, Applicant, Pro se, do hereby certify that a true and correct

~ copy of this foregoing instrument has been served upon Steven W. Conderj, Assietent

District Attorney, 401 W. Belknap, Fort worth¢ Texas 76196-0201. Execut,ed on this 25th n
day of Fehmary, 2015. "

Sigm ____

Matthew Cotten No. . 1826716 _
Applicant, Pro sei;.,»,'?f:_~` `

11

