§§.“W'O\

ESTEBAN H FLOREZ
3060 FM 3514 #1755424
BEAUMONT, TX 77705

ABLE ACoSTA,CLERK

CoURT oF CRIMINAL APPEALS
BoX 121308, CAPITOL STATION
AUSTIN, TX 78711

RE: w-21¢8734c-i=

Dear Mr. Acosta; (Greetings)

Please find enclosed a copy of Applicant’S Proposed
Findings of Fact and Conclusion of Law to be provided to the
presiding judge of the above Stated oause.

Sincerely Thankful;

`é)'\~\-\S

Esteban H. Florez(Pro Se)

 

PECE|VE"D IN

JUL 08 2015

%@M@@§@@,d@w<

 

NO. W-211873*C-1

EX»PARTE; § IN THE 25isT'DISTRIcT coURT
FLoREz,`ssTBBAN HUERTA, § IN AND FOR
(Appli¢ant) - § RANDALL couNTY, TEXAS

APPLICANT'S PROPOSED

FINDINGS OF FACT AND CONCLUSIONS OF LAW

.\.
\,

On June 2, §015, the applicant filed the instant writ application
in Cause No. W-21.873-C-l. In this application, the applicant
raised the following three grounds of relief: (l). ineffective
assistance of trial counsel- (2) actual innocence. and (3)

ineffective assistance of appellate counsel.

on June 16, 2015, the criminal niscricc Attornéy of Randaii
Countv, Texas, filed its State's Answer to Application For Writ
of Habeas Corpus, generally denvinq all alleqations contained

in the Application For Writ of Habeas Corpus.

The Court havinq considered the application, Resoodent‘s answer,
.testimony of trial counsel, and select official court documents
and records in Cause No. 21,873~€, makes the followinq findinqs

of fact and conclusions of law:

 

PROCEDURAL HISTORY:

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:

6.

_Judicial District Court of`Randall Count

and/or strike veniremembers who revealed

FINDINGS OF FACT

Applicant was indicted for the felony of

assault with a deadly weapon in Cause No

Applicant was represented by Mr. Jack Sw

A jury convicted applicant of aggravated
weapon and assessed punishment at 20 yea

a $l0,000.000 fine.

Applicant was represented on direct appe

The Seventh Court of Appeals affirmed ap
in an unpublished opinion delivered Janu

Cause No. 07-11-00013-CR.

Applicant alleged that Mr. Jack Swindell

assistance of counsel by: (l) failing to

the applicant and/or towards the State's
proof, (2) failing to ask proper guestio
to determine whether or not to use perem
bias/prejudice, incapable, or unfit veni

to timely object to an inadmissible extr

statement made by a State's witness duri
2.

fense of aggravated
. 21,873-€, in the ZSlst

y, Texas.

as trial counsel.

indell,

assault with a deadly

rs imprisonment and

al by E:Ric coATs ;

 

plicant's conviction

ary 26, 2012, in

provided ineffective
challenge for cause
bias/prejudice against
required burden of

ns during voir dire
ptory challenges upon
remembers, (3) failing

aneous offense

ng direct examination,

 

lO.

ll.

(4) refusing to allow the applicant to testify on his own
behalf when applicant requested to do so, and (5) failing

to investigate/interview witnesses for defense purposes.
(Applicantls Writ Application, p.6-7); (Applicant's Memorandum,

9.8-36)

Mr. Swindell provided a sworn affidavit addressing each of
Applicant's claims of ineffective assistance of counsel.

State's Answer, Exhibit-3.

THE COURT FINDS Mr. Swindell not credible in regards to his
responses to applicant's claims of ineffective assistance

of counsel.

THE COURT FINDS, in regards to veniremembers, DUGGAN and
SHARP, Mr. Swindell explained the applying law of the State's_
burden of having to find applicant guilty beyond a reasonable
doubt, and both, DUGGAN and SHARP stated clearly that they
would still convict applicant on a lesser burden of proof, the

"clear and convincing evidence" standard-

THE COURT FINDS, Mr. Swindell did not challenge for cause, or
strike veniremembers DUGGAN and SHARP based upon their inability
to follow the required law pretaining to the State's burden

of proof.

THE coURT FINDS, although Mr. swindell had used all his
peremptory strikes, he did not request from the court additional
strikes to be used against DUGGAN, SHARP, or Mr. THAXTON,

who also demonstrated bias/prejudice against applicant. The

Court would had granted such.reguests.

3_,

12.

13.

14.

15.

16.

17.

THE coURT'FINDS, Mrj Swindell, upon asking Mr. THAxToN if
it would make a difference (judging the evidence fairly)
if he knew in advance that the applicant had been through

the system before, Mr. Thaxton answered, "probably."_

THE COURT FINDS, Mr. Swindell did not challenge for cause
and/or strike Mr. Thaxton for his bias and/or prejudice

opinion or beliefs, which clearly revealed his opinions or

, beliefs would prevent or substantially impair nis ability

to carry out his oath and instruction to not prejudge applicant
based on any prior offenses applicant may have committed,

in accordance with the law.

THE COURT FINDS, although Ms. Donna Garcia testified during

direct examination that she knew of a previous time when

applicant had assaulted the complainanty Ms. Monica Gomez,

Mr. Swindell did not object to such statement being a prejudicial,

inadmissible extraneous offense.

THE COURT FINDS, based upon Mr. Swindell's own admission,
the complainant, Ms. Monica Gomez, nor Ms. Sharon Spakes,

were never interviewed by Mr. Swindell prior to trial.

THE COURT FINDS, based upon applicant‘s credible affidavit,
Mr. Swindell was informed of the exculpatory facts known
by Ms. Spakes, but still failed to interview and/or call

her as a defense witness.

THE COURT FINDS, based upon applicant's credible affidavit,

Mr. Swindell refused to allow applicant to testify in order

4.

18.

19.

20.

21.

22.

 

to substantiate his self defense claim, even though applicant
knew the consequences of him testifying, but still requested

to do so.

THE COURT FINDS, although Mr. Swindell raised a self-defense
theory before the jury/ he failed to provide any bases for .
the court to grant his request for self-defense instructions

to the jury by failing to allow applicant to testify.

THE COURT FINDS, although the prosecutor mentioned the`punishment
range to the veniremembers during voir dire, the prosecutor,

nor Mr. Swindell, or the court ever asked if any veniremembers

could consider the full range of punishment.

THE COURT FINDS, although the prosecutor mentioned applicant’s
right not to testify, to the veniremembers, the prosecutor,
nor Mr. Swindell, or the court asked whether any veniremembers

would hold applicant's decision not to testify against him:

THE COURT FINDS, Mr. Swindell did not ask any veniremembers
whether they would consider a police officer's testimony
more credible than any other witness due to their status

as a police officer.

THE COURT FINDS, the veniremembers were not provided an
opportunity to voice their views regarding whether, (l)

they could consider the full range of punishment, (2) they
would not hold against applicant if he chose not to testify,
and (3) they would consider an officer's testimony more
credible due to his status as an officer. The veniremembers

were not asked to respond, or voice their opinion in regards

_ to these three guestions. 5{

APPbICANT’S ACTUAL INNOCENCE CLAIM

23.

24.

25.

26.

THE COURT FINDS, prior to trial, Ms- Gomez provided Mr.
Swindell's investigator with a sworn written affidavit

asserting that, due to being extremely intoxicated on the

night of the alleged assault, she did not remember what actually

happened or how she received her injuries.

THE COURT FINDS, during trial, however, Ms. Gomez testified
that her sworm written statement was false, and that she

had lied to keep applicant from getting into trouble.

THE COURT FINDS, Ms. Gomez testified that applicant had held
her down on the living room couch with a knife to her stomach

and neck.

THE COURT FINDS, the testimonies of Ms. Gomez, officer Daniel
Smithy and officer Ruben Coronadon version of events conflict
within each other, whereas, officer Smith claimed to have
witnessed applicant pushing Ms. Gomez over the back offa

couch with one arm on her chest, while holding a knife in

his right hand, and officer Coronadon claimed to have witnessed
applicant holding Ms. Gomez.up against the front door, while
holding a knife in his right hand against the back of Ms.
Gomez's head. Both officers claimed to have witnessed their
version of events during the same time period, standing next

to each other.

27,

28.

29.

30.

THE COURT FINDS, although evidence' was presented during
trial that indicated Ms. Gomez suffered injuries to her face,
nose, and head, she also testified that during her attempt
to jump out of their moving vehicle, applicant reached over
frantically and grabbed her hair, pulling her back into the
vehicle. lt was indicated there is*a reasonable probability

Ms. Gomez's injuries occurred from applicant saving her life.

THE coURT FINDS, although Ms. Donna Garcia testified she
had witnessed applicant and Ms.-Gomez struggling and fighting
from her kitchen window, Ms. Garcia did not state she witnessed

any knife in applicant's hand.'

THE COURT FlNDS; after trial¢ Ms. Gomez provided applicant's
appellate attorney with another sworn written affidavit
similiar in content to her first affidavit, except in her

second affidavit she asserted that applicant had taken a

' knife away from her during the period of time when the police

officers arrived on the scene and witnessed the incident

through the living room window.

THE COURT FINDS, the second and last affidavit provided by
Ms. Gomez to be credible and considered as newly discovered
evidence due to reason it was stated for the first time,
within the second affidavit, that applicant had taken the

knife away from Ms. Gomez for self defense purposes_ The

jury was not provided with this exculpatory evidence._

31. THE COURT FINDS, during the submission

32.

INEFE`ECTIVE ASSISTANCE OE` APPELLA'I'E COUNSEL

33-

34.

35.

36-

.for new trial raising an actual innocen

_the police arrived.

of applicant's application

for writ of habeas corpus, he also submitted his Memorandum

in support thereof, providing his voluntary affidavit aS

Exhibit-A. Applicant's affidavit was not sworn to, nor signed

and dated.

THB COURT FINDS, applicant filed a Moti

Record with a sworn to, signed and dated affidavit,

is identical to his original affidavlt.
his motion and supplemented the records

signed and dated affidavit, which the C

THE COURT FINDS, applicant was represen

by ERlc coATs .

THE COURT FINDS, appellate counsel file

to Ms. Gomez's post-trial written state
could not remember what actually occurr
question do to her being extremely into

applicant was trying to take the knife

THE COURT FINDS, this court had no juri
the untimely filed motion for new trial

not granting review and/or an evidentia

THB COURT FINDS, had a timely motion fo

to the trial court, raising an actual i

8.

on to Supplement the
which
The Court granted
with his sworn to,

ourt holds credible.

ted on direct appeal

d an untimely motion
ce claim in regards
ment, asserting she
ed on the night in
but believes

xicated,

away from her when

sdiction to entertain
and did not err by

ry hearing.

r new trial been presented

inocence claim based

 

l. The claims asserted by applicant pretai

on Ms.

VIRGIL V. DRETKE, 446 F.3d 598 (Sth Cir

Gomez's post-trial affidavitl t
granted a requested evidentiary hearir

whereas, Ms. Gomez's post-trial affida

discovered facts which were not preser
Ms. Gomez's pretrial affidavit. Namely
had taken the knife away from her at t
on the scene. Such self-defense assert

during the trial on the merits.

CONCLUSIONS OF LAW

 

assistance of trial counsel for failure

or strike veniremembers, DUGGAN, SHARP,

be reviewed by the standards enunciated

466 U.S. 648 (1984), whereaS/

state's case to a meaningful adversary

In the alternative, even if applicant's

assistance of counsel for failure to ch

strike veniremembers DUGGAN, SHARP, and

by the standards enunicated in STRICKLA

U.S. 668 (1984), which requires a revie
whether trial counsel's representation:
objective standard of reasonableness: a
applicant was prejudiced by trial couns
representation} prejudice is presummed

to object to the sitting of at least th

UNITED STATES V. MARINEZ-SABAZORL 528 U

9.

counsel f

he court would had
g/review of said motion,
vit asserted newly

ted at trial, or in

, she believed applicant
he time police arrived

ions were not presented

ning to ineffective
to challenge for cause
and/or THAXTON, must

in U.S. V. CRONIC,

ailed to subject the

testing process.

claim of ineffective
allenge for cause and/or
or THAXTON, is reviewed
ND V. WASHINGTON, 466
wing court to determine
(i) fell below an

nd, if so, (ii) whether
al‘s deficient

for counsel's failure
ree bias jurors.

.S. 305 (ZOOO);

. 2006): and

 

 

GARCIA V. STATE, 919 S.W.Zd 370, 389 (Te
{The 6th amendment guarantees criminal d
'by an impartial jury. The bias or prejud
juror is endugh to violate that guarante
presence of a biased juror cannot be har

requires a new trial without a showing o

THE COURT FINDS, based upon Mr. Swindell

he explained to veniremembers, DUGGAN an
was required to prove each and every elem
offense beyond a reasonable doubtl howey

they would still find applicant guilty o

of proof, by "clear and convincing evide

THE COURT FINDS, based upon Mr. Swindell

he was required to challenge for causes
but failed to do s

DUGGAN and MS. SHARP/

jurors expressed their opinions or belie

x.Crim.App..lQQ€)
efendants a verdict
ice of even a single
e. Accordinglv, the
The error

mless-

f actual prejudice)

's own admission,

d SHARP that the state
ent of the charged

er. both jurors stated
n the lesser burden

ice."

's own admissionl
and/or strike Mr.
D, even after both

fs, preventing and/or

substantially impairing them from carring out their oaths

and instructions in accordance with the

THB-COURT FINDS, for the above stated re
rendered ineffective assistance and'prej

Thus, a new trial should be granted.

Deficient representation, alone, does no

assistance of counsel under STRICKLAND, supra.,

Law.

asonl Mr. Swindell

ldice is presumed.

t constitute ineffective

and to prevail

an applicant must also demonstrate prejudice by showing a

reasonable probability that, but for counsel's errors,

the

result of the trial proceedings would have been different.

lO.

 

To prevail on a post-conviction writ of
applicant bears the burden of proving, k
ot the evidence, not only that his trial

was deficient,

‘habeas corpus, the
y a preponderance

counsel's performance

but that there is a reasonable probability

that the outcome of the trial and/or appellate proceeding

would nave been different had trial cour
not been oeticient. Ex PARTE cHANDLER, J

(Tex.Crim-App. 2005).

sel's performance

82 S.W.$d 350, 353

Applicant has clearly shown deficient and prejudicial performance

based on the following ineffective assistance of trial and/or

appellate counsel:

Trial counsel failed to challenge for ca

veniremembers; DUGGAN, SHARP, and THAXTC

prejudice against applicant and/or towar

use and/or strike
N, who revealed bias/_

ds the State's required

burden of proof, which the defense is entitled to rely upon;

Trial counsel failed to ask proper quest

dire to determine use of peremptory cha]

prejudicial,

incapable and/or unfit venl

ions during voir
lenges upon bias/

remembers;

Trial counsel failed to make a timely and proper objection

to inadmissible extraneous offense statement made by a state

witness, Ms. Donna Garcia;

Trial counsel failed to allow applicant

own behalf, despite applicant's request

ll.

 

to testify on his

to do so;

e. Trial counsel failed to investigate and/or interview witnesses

f.

9.

10. THE coURT F;NDS and REcoMMENDs, appliea

THEREFORE IT IS THE ORDER OF THIS COURT THAT:

a.

C.

Appellate counsel failed to timely file

`for new trial.

-record of this court1

`That the preparation of these matters be

for defense and/or mitigating purposes;

THE COURT FINDS, applicant has clearly s

that trial and/or
were not engaged in reasonable trial str

of the court stated above.

6th and 14th amendment right to effecti\

and that his conviction was unlawfully c

and foregoing reasons, applicant should

custody of Randall County, Texas, Sherif

the allegations of the charged offense,

a meaningful motion

hown, based upon the
appellate counsel§

ategy by the findings

nt was denied his

e assistance of counsel
>btained. For the above
be released into the

f Department to answer

either by a new trial,

or an order of acquittal due to his actual innocence claim,

The Clerk of the Court certify all pleadings and affidavits

and supporting transcripts filed in this matter and prepare

a record for forwarding to the Clerk of

Appeals;

That the Official Court Reporter of the

the Court of Criminal

Court prepare a record’

of the proceedings in this matter for forwarding to the Clerk

of the Court of Criminal Appeals, and

12.

9 at COUDCY @XQGHSG.

 

lt is considered recommendation of this court that applicant's

request for relief be in all things GRANTEJ.

£).»
cl
b.(1
0
|_.`.
b l
C l
y_
Ll'l
o

Signed on this

 

Presiding Judge
ZSlst District Court

Randall County, Texas.

13.

 

 

