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HRlT NO. W09~57260*R(A)

 

APPUCAM-'S OB‘JECTION 10 THE TRIAL
C_CURT’S FINDINSS OF FAG¥ M|D CONCL'US]ON

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1 RECEVE»IN
COURT OF CR|M|NAL APPEALS

FEB 17 2015 f

Abe! Acosia, Clérk

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_ _ WRIT 80» NOS-S?Z€O-R(A) _ _w
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_ DlSTRl€T COURT FOR
HARGEL DAVIS, DALLAS COUNTY, TEXAS"

‘APPLICANT's~oBJ£chou to rue IRlAL
couar's Frnoluss or vast Ann coucLuslou
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10 1HE HONORABLE JUDGE OF SAlD €GURI:

` ucc come larccl navio¢ vro~sc¢ by way of objection to the Triai
court°a tindinge of Fact and conclusion ct saw for the tollou1ng
roaaonas '

' ~'(l) The state  Fact’e supporting Applicant'a plea to be
knowingly and voluntaty¢ also that trial counaol rendered
`e££ective assistance during the plea colloquy despite not
.adv1eing Applicant ‘to_ plea guilty ao stat in counsel'o
atfidavit. _

' Appl1cant asserts that such facto should not be adopted
:by the court, because they are unreasonable and contrary to
~Btrickland v. Haohington 466 U. S. 687, 694 (l984);

Bernandez v. state 726 Sw ad. 53, (Tex. crim. App. 1986);
esparza 9001.736 sw za-zas, 286 (rez;crim. App. 1937);
3111 v. toexhart 474 o.s. 52, (1935) ana aoytin v. Axavaaa_
: 395 0.8. 242 (1969)¢ because such plea wao.unknowingly and
involuntary because trial counsel failed to fully appraiae_”
Applicant of the nature o£ the charge against him and tho__
consequences-of ouch plea, which the.$tate (at 3) of it‘u'y
findings admit that trial counsel never informed Applicant
prior to the ontry_ot his guilty plea about the culpable
mental state of recklessly in relation to the charge offense
of injury to'a child or the effects of such culpable mental
state during the punishment and centencing pheae. which the

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Tex. penal code Ann f 22.04 (e)~(g) provides that the rangev
of punishment for Injury to a Child is determined by then
mental state in which the offense was committed. ns stated
in none v, state 102 sw 3a (zoos_)= she felony murder rule
dispense with the necessity of proving menrea accompanying ~
'the homicide itself¢ the under lying felony supplies the >;M
culpable mental state. . _‘ ' 1
A person commits the offense of injury  to a child it he
intentionally¢ knowingly¢ recklessly¢ or with criminal
ne gligence causes (l) serious bodily injury (2) serious 11
' mental deficient¢ impairment or injury or (3) bodily injury
to a child (Tex. Penal Code Ann § 22. 04 (A) v rnon 2003)
While Tex. Penal Code Ann § 22. 04 (e)- (g) Vernon _2003’ provided
that the range of punishment for injury to a child is
determined by the mental state in which the offense was _‘
committed, the offense of felony murder under v!on. Penal
case 'Ann 5 '10,02' ¢b)(a)`, vernon aeo_`a is a rican degree felony
regardless of the culpable mental state tor'the underlying
felony of injury to a child. 1
ln general¢ and indictment must plead every element which

must be proven at trial, an allegation of an essential culpable_.l

mental state is a element et the offense. Feilure to include
a culpable mental state unually is a defect of substance¢
normally when there is a defect in substance there isa
failure to charge a purported offense.
l Under Te;. code crim Proc. Ann Art. 2l 19 (vernon l989)
determining whether the indictment' s omission affected
Applicant' s substantial right turns on the question of whether
Applicant had notice¢ adequate.to prepare his defense. ,
' !n general an indictment must plead every element which
must be proven at trial ninkin v. State 894 sw 2d 330¢ 338,
Tx. cr. App cert. denied¢ 516 0 8. 832, 133 L Bd 2d. 590
115 Sct 106 (1995), An allegation of an essential culpable 1

mccune means f had z

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MBNTAL STATE USUALL! 18 h DBFBCT 0? EUBSTANGB¢-Btuder V»
score 799 sw `2a 263 (mox. crim npp. ieeo). capone wanton
549 sw 2d 751 (Tsx. crim. App. 197?) normally chen there is
a detect in substance¢ there is a failure to charge a
purported ottense. sees stetson v. State 713 sw 20 724, 725
(Tcr. €r. App. 1986).'

I£ the omission of s culpable mental state for the
underlying felony was a matter of torm» then article 21.19
provides the test for harmless error. The question is whether
the omission is one of substance or form because the code of
criminal croc. categorires errors in a charging instrument a
either defects ct substance or defects of form, Tox. codo. crim
noo. Ano. ne shoe vernon 102 sw 3a aaa mesa provides shoe `
there is no exception to the substance o£ an indictment or
information except for the four matters listed.

Applicant asserts that trial counsel performance was
deficient because counsel was required to have firm command
of the tow and roots of the case duparte Lilly 656 sw 26
490 (Ter. crim. App. 1983) and had trial counsel done so¢\
counsel would have been aware that the omitted culpable
mental state of recklessly from the indictment by the state
in it's amendment was a detect in substance and was a £ailure
to charge a purported offense in relation to the offense of
!njury to a child. ns cited in Floroo v..state 102 sw ad 328
(2003). 'theretore requiring an objection and the filing or
a pretrial motion to quash the indictment under tor.code.erim
prcc¢ Art 1.14 in light of Studcr vo Stltc 799 SW 26 263
(Ten. crim. App. 1990) due to a failure of the indictment
of the indictment to plead every element oi the offense as set
out in binkin v. state 697 sw 26 413, 415 (Tex. crim.'npp.
1985) as set out in Plores v. State.

who trial court facts and finding in relation to trial
counsel‘s eliciting extraneous offense or bad acts testimony

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nga 4 HRIT 80¢ 809¢57230.8(§)

iron applicant during the punishment and sentence about thc
manner of cuppocting himself by-duug doaling, which counsel
believed it bettor for applicant to bo candid with the ooutt.

Applicant asserts that tdc state court finding and dacta
that cuppoct counmcl'n bclio£¢ that Applicant should bc candid
with the Court and out of nowhere in£ccm the sentencing Court
that he was a doug doalcu, ia unreasonable and could navor_bo
considered plausablo basis in strategy or tactica_!or his
actions aa cited in sxpactc turns 607 sw zd. 370¢ 372 (Tcx.
crim; Appz 1950) s aspects canau¢ 423 Aza, sues Aao:ews v.
state 159 stD 93, 102. `

Appiicant asserts that such testimony was highly prc -
judice under 403 ct the ?x R. nolo ct Evidcnco, thc probative
value of the evidence was substantially outweighed by thc
danger of unfair prejudico. Also could novcc be trial stratogy
in the absences of a properly filed and rulod on motion of
noticc of intent to compel the statu_to aware Applicant of
it'a intent to usc such extraneous o££onuo_or bad act during
the punishment pnaaa¢ as act out undac !n. uddc-¢rim. Pcoc.
Att. 37.07 § (A)(q) and ?ocd v. Stato 106 SW 36 765 (Tax; App.
Toxackcna 2003).

Ab§licant asserts that such plea could never be knowingly and
voluntary_bocauco the Foct¥c¢`?indingc; and nf£idovit from trial
counsel that the Btatc relies on ia unrcasonable and contrary to
§oyhin v. alabamp 395 u,n._zdz (1959) becauaa Applicant oaa not
fully appraised o£ the nature of thc charge or the culpable mental
state of rocklaaa in relation to tnic offense of injury to a child
and the consequences ct such culpnblc_mcntal state when sentencing
Applicant¢-counaoi performance ucc deficient because ho was unauaca

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that the omitted culpable mental state of recklooo from the _
indictment by thc Stato ucc o detect of substance and £oilod to
charge a purported o££on wherefore Applicant`aaoorto that had trial
counsel gathered the facto of too case and governing law to protect
thoirighto of the accused ao oct out in Baparto Lilly 656 Sw 2d 490
Tx. gr. npp. 1983, and counsel filed tho_motion under 37.07 of the
Tox. Codo crim. Pcoo, Compolling the atata to notify Applioant
nrior to too punishment phaoo to'noti£y Applicant of ita intent

to ucc oxtranooun offenses or bad acts of Appliconts past conduct
during tho punishment¢ instead of just eliciting highly inllamatory
extraneous offense or bad acts ao to being a drug collar with no
plauaablo basis in strategy as sat out in dupatte duane 601 sw 2d
379, 372 (Tox. crio. app. 1980} counaol would have also bean aware

'that on objection van necoooary to the Statos omitted culpable montal""

state of reckless from the indictment and thereafter filed a motion
to quash due to`a defect of substanco in accordance with Tox. code
cria. proc.rzv.OB and Studer v. duane 799 sw zd. 263 (Tx. cz. App.
1990) Trial counool aaa clearly ineffective in tva light duparte
lilly 656 3d 2d 490 (1983) vernandea u. state 726 sw 2d 53 (1986)
and strickland v. uaahington 466 u.s. 687 (1984) and had it not been
found to novo commitad said offense rockland duo to testimony cf
Applicanto actions of impulsively and out of frustration.

tv marcel uavio¢ state that all the forgoing is truo and
contact and tree of perjury.

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