                                       IN THE
                           (

                          COURT OF     CRIMINAL     APPEALS


                                       OF   TEXAS


JOSE   GONZALES   111,
          Petitioner/




THE STATE OF TEXSS/
            Appellee.




                                                                        COURT OF CRIMINALappeals
                   PETITION      FOR DISCRETIONARY REVIEW


                          FROM   THE   COURT OF     APPEALS
                                                                             AUG 05 2015

                         THIRTEENTH    DISTRICT OF     TEXAS
                                                                        Abe) Acosta, Clerk

                          CAUSE NO.     13-13-00011-CR.




                                                              ORAL ARGUMENT REQUESTED
                                 TABLE   OF    CONTENTS



                                                                PAGE    NO
TABLE OF CONTENTS                                                      I.

INDEX OF AUTHORITIES                                                   II-IV.

STATEMENT REGARDING ORAL ARGUMENT                                      Vo

STATEMENT OF THE    CASE . o -                            . .          VI .


STATEMENT REGARDING PROCEDURAL HISTORY..                               VII.

GROUNDS FOR REVIEW                                 • -                 VIII-I3i>:

ARGUMENTS AND AUTHORITIES                                              1-16.

CONCLUSION                                                             16.

PRAYER FOR RELIEF. «...                              -                 16.

CERTIFICATE OF SERVICE                                                 16.

APPENDIX...                                                        end.




                                              I.
                             IINDEX    OF   AUTHORITIES



TEXAS CASE:                                                                  PAGE NO.
BELL Mr. STATE,     356 S.W.3d:528.                                ...             1.

DRAKE v.hSTATE, 686 S.W.2a 935,944                                                 7.
ERVlM:ivu; STATE,    991 S.W.2d 804,814                                            3.
EX PARTE CASTILLO, 432 S,W.3d 457....                     •                   ...4,5.
EX PARTE CAVAZOS,      203 S=W.3d 333                                              4,5.
EX PARTE DUFFY,      607 S.W.2d 507                                                16 =
EX PARTE RATHNELL,        717 S.W.2d 33,36                                    .-5.
GIRDY V. STATE,      213 S.W.3d 315,319                                            3.
GARCIA V.   STATE,    919 S.W.2d 370,381...                                    .   2.

HOLLY V.STATE/ 469 S.W.2d 136,137......                                            7.
LACY V. STATE, 160 TEX.CRIM.9599261773 .W.2d 139^141                               7.
MENDOZA y. STATE, 1 S.W.3d 829                                               . . . 1.
PHILLIPS V. STATE, 787 S.W.2a 391-95                                               5.
RUSSEL V. STATE,      146 S.W.Sd 705,714..,.........^.                             11.
VAUGHN v.SSTATE,      239 S.W.3d 351                                               4.
VON BYRD V. STATE, 569 S.W.2d 883,890-91..                             ...         11.
WILLIAMS V. STATE, 897 S.W.2d 351, CERT.DENIED 516 U.S. 946... 9-10.
YGLESIAS V. STSTB/: 252 S.W.3d 733S(HDfii®E^^iREP'D                                 1.
CRAWFORD V. STATE, 685 S.W.2d 343,349-50                               ..x....,ll.
LANDERS V. STATE, 957 S.W.2d 558r560...                                            5.
FEDERAL   CASES:

MAYOLA V. ALABAMA, 623 F.2d 992,998. (5TH CIR.1980)                                11.
U.S. V. DURHAM, 287 F.3D 1297,1304 (llTH CIR.2002).                                2.


SUPREME COURT CASES:

BENTON V . •iHARYLAND ,    395 U.S.    784                                          3.
BLOCKBURGER V. U.S.,        284 U.S.    294                                         3.
BROWN V.OOHIO, 432 U.S. 161                                                         3.
FARETTA V. CALIFORNIA, 422 U.S. 806,821                         ....                12.
GRADY V. CORBIN, 495 U.S. 299                                                       3-
ILLINIOS V. VITALE, U.S. 410                                                        3.
STRICKLAND, 466 U.S. 688                                      ...............6,7,8,12,16
TRAVINO V. THALER/ 569 U.S.^ (2013).                                                16.
UNITED STATES V. CRONIC, 466 AT? 656-57                                            . 12.
U.S. V. DIXON/ 509 U.S. 688                                                          3.

                                        II.
                             AUTHORITIES   CONT:

                                                           PAGE NO^

TEXAS    CONSTITUTION:

TEX.CONST. ARTICLE 1 § 14                                        3.

UNITED    STATES   CONSTITUTION:

U.S.C.A. CONST, amend 5      .........                           3,
U,S.C.A. CONST. AMEND 6                                          1/2,6/8,12,
11/13.

U.S.C.A. (pClNST. AMEND 3j4 ......................................X,2/6,8,12,
11/13.

TEXAS    STATUTES:

V.T.C.A. PENALCOODE § 19.03 (a)(2)                           ...4,7.
V.T.C.A. PENAL CODE § 30.02(a)(2)                             ..4,
V.T.e.A. PENAL CODE § 22.02                                     5.
V.T.C.A. PENALCOODE § 8.01                                      13,14,15.
V.T.C.A. PENAL CODE § 3.04 (a)                                  7.
FAMILY CODE § 71.003                                            5.
FAMILY CODE § 71.0021 (b)                                   ....5.
EAMILY CODE § 71.005 (b)                                        5.
TITLE 7 PENAL CODE                                              7.
TITLE 5    PENALCOODE                                       .,..7.

V.T.C.C.P. ART.l.lOd) . .                                       3^
V.T.C.C.P. ART.1,14                                             8.
V.T.C.C.P. ART.21.24. . .                                       5^7^
V.T.C.C.P. ART.31.01..                                     .....11.
V.T.C.C.P-AART.31.03(a)                                        .9.
V.T.C.C.P. ART.42.12 (d)(8)(c)...                               12.
V.T.C.C.P. ART.46.03. . .                                       14.
CRIMINAL   LAW;

CRIMINALILaW KEYNOTE-144                                        4.
CRIMINAL LAW KEYNOTS!620 . ( 3 )                                 .
CRIMINAL LAW KEYNOTE-641.13 ( 2)                                7.
CRIMINAL LAW KEYNOTE-637 . 2
CRIMINAL LAW KEYNOTE-773                                        13.
INDICTMENT AND INFORMATION KEYNOTE-127
INDICTMENT AND INFORMATION KEYNOTE-129(1)                       6.
OTHER   STATUTES:

V.T.C.A. PENAL CODE § 3.01(a)                                  .7.

                                   III.
                      AUTHORITIES   CONT:

                                            PAGE NO.

88 P.A.291   (1879)                             .16,




                             IV.
                     STATEMENT REGARDING ORAL   ARGUMENT


EETITIONER URGES THE COURT TO ALLOW ORAL ARGUMENT FOR THE        FOLLOWING

REASONS;   TO WIT:

petitioner's claim of double jeopardy is based on the Gavazos casg
203 S.W-3d 333 (Tex.Grim-App.2006) and the Castillo case that the
State cited in its brief: Ex parte Castillo/ 432 S.W.3d 433 (Tex.App.
-San Antonio 2014/no pet-h-).
Furthermore/ this error is an error whether objected to or not.
Petitioner briefed said error in his Pro/se brief which the 13th
Court of Appeals failed to adjudicate oniits merits.
Because their is a misjoinder issue in multiple count indictment
Petitioner needs futher redress      from the Court of Appeals to address
said grounds. Also because the, record was fully developed before the
Court Petitioner claimed ineffective assistance of counsels on both
direct appeal as well as trial attorneys. Fetitoner should be given
the full adjudication of ineffective assistance of counsel as outlined
in Trevino v. Thaler/569 U.S.       (2013). Furthermore/ Petitioner urges
the Court for oral argument that Petitioner's attorney on direct appeal
filed Anders brief and motion to withdraw/        the Court assigned Stephen
W. Byrne as attorney who filed motion to withdraw based on ill-health
and no Ander's brief. Because he was the attorney of record the 13th
Court of appeals was in error and abused their discretion by ruling
on Anders brief filed by attorney Fred Jiminez whom was no longer
Petitoner's attorney of record and such Anders brief filed was moot
by operation of law. Because the remainder of the errors are based on
ineffective assistance of counsel Petitioner urges the Court to allow
oral argument.




                                    V.
                        STATEMENT    OF   THE   CASE



on December 12/ 2011 Jose Gonzales III, hereinstyled Petitioner was

charged with Capital Murder in the course of. committting a Burglary

of a Habitation of one Leslie Morin/ by shooting Leslie Morin with

a firearm.   In Count 11/ Petitioner was charged with Burglary of a

Habitation on or about December 12/2011 in Nueces County/ Texas-

There and then Intentionally and knowingly enter a habitation with

out the effective consent of Vida,l Rodriguez who had greater right

to said property/ and attempt to commit or committed the felony

offense of Aggravated Assault with a Deadly Weapon.

Petitioner was employed as a Alice police officer in the City of

Alice/ Texas on the:: day of the offense-         In a high profile trial

Petitioner was convicted on both counts by a biased and highly ^

prejudiced jury-

The court sentenced Petitioner to life with out parole on count 1/

and life with parole on count II. Wherein said convictions are constu-

tionally infirm- The trial was overwhelmed by the media, and public

pressure. Change of venue was warranted.




                                    VI-
              STATEMENT REGARDING PROCEDURAL HISTORY

Petitoner was charged by indictment with one count of :Capital
murder during the course of committing a burglary of a habitation,
and one count of burglary of a habitation with the intent to commit
aggravated assault or a   felony.    A, jury convicted him of both offenses
as alleged in the indictment on December 6/      2012. The Court assessed
punishment at life without the possibility of parole for the Capital
Murder charge and life in the Institutional Division of the Texas
department of Criminal Justice-CID for the Burglary of a habitation
charge- The Petitioner filed notice of appeal on December 10, 2012.
Petitioner's attorney of record Fred Jiminez filed an Anders brief
on July 18, 2013. On July 24,    2013 Attorney Fred Jiminez filed a motion
to withdraw as attorney. On August 16, 2013 the trial court appointed
Stephen W. Byrne to represent Petitoner. On September 8^ 2013 Stephen
W. Byrne filed motion to withdraw citing ill-health and requested the
court to appoint new counsel. No Anders brief was filed and no new
attorney was appointed. Petitioner filed a motion in the 13th Court of
Appeals for trial record. Petitioner filed his Pro/se brief on May 23,
2014, along with request for oral argument. Furthermore, Petitioner
filed a motion in the 13th Court of appeals for his trial attorney to
produce the psychological report generated from his court ordered
evaluation. Such report was never, made part of the record- The State
was ordered to file   their brief.   The case was   due for   submission on
August 13, 2014. The State filed their brief on August 12,         2014 with a
motion for an extension of time.     Petitioner filed a   motion to hold said
appeal in abeyance in order to respond to State's brief. On August 14,
2014 the Court affirmed in an unpublished unsigned boilerplate opinion
by Justice Dori Contreras Garza,     which appear to be the work of a     clerk
or para-legal employed by said justice refering soley to the Anders brief
that attorney Fred Jiminez     submitted that should have been ruled moot.
Petitioner filed motion for rehearing on August 30, 2014. The State filed
brief agreeing with Petitioner's claim of double jeopardy wherein the
San Antonio Court rendered relief for the exact same issue- Rehearing
was denied on January 21,    2015-




                                VII -
                            GROUNDS   FOR   REVIEW



GROUND ONE;                                                            PAGE NO.

TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES

IN VIOLATION OP U-S-C-A. CONST. AMENDS 6TH AND 14TH. TRIAL COURT
INFRINGED UPON PETITIONR'S PERSUMPTION OF INNOCENCE/         AND HIS RIGHT
TO COUNSEL.      INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT    OBJECTING TO
PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULTING PETITIONER'S

CLAIM-

GROUND   TWO;

THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER
FOR multiple BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFUL
ENTRY, IN VIOLATION OF TEXAS CONSTITUTION ARTICLE I/§14 AND U-S.C.A.
CONST. AMEND 5TH/ ALSO V.T.C.C.P. ART. 1.10.
GROUND   THREE;

INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER
OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT.      COUNSEL DID NOT
FILE PRETRIAL MOTIONS/ NOR OBJECT DURING TRIAL TO MISJOINDER OF
OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL/      SUCH OBJECTIONS

WOULD HAVE RESUffiED IN DIFFERENT OUTCOME.
GROUND   FOUR;

INEFFECTIVE                OF COUNSEL; COUNSEL'S FAILURE TO FILE MOTION
TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HENCE/ PROSE
CUTION COMMENCED UPON THESSTRENTGH OF AWUNSIGNED INFORMATION.
GROUND FIVE;

ineffective ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE
OF VENUE IN HIGH PROFILE CRIMINAL PROSECUTION IN ACCORDANCE WITH
V.T.C.C.P. ART.31.03/ WAIVER BY ATTORNEY PROCEDURALLY DEFAULTED
PETITIONER'S RIGHT TO R'aSEiSE CLAIM FOR APPELLATE REVIEW.
GROUND SIX:

TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING CHANGE OF VENUE
AFTER IT BECAME IMPeSSIBEE.TO SEAT A JURY THAT WAS UNBAISED IN HIGH
PROFILE    CASE.

GROUND    SEVEN;

INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL ABANDONED PETITIONER/
ACTING AS NO COUNSEL AT ALL/ MERELY FRIEND OF COURT.



                                  VIII.
GROUNDS    FOR REVIEW CONT:          GROUND EIGHT:                           PAGE NO,

PETITIONER'S COUNSEL FOR DIRECT APPEAL FRED JIMINEZ COMMITTED
INEFFECTIVE ASSISTANCE OF COUNSEL BY PLACING A FRAUD BEFORE THE

COURT BY FILING FRIVOLOUS BRIEF, FOR SUCH ACTION WERE MOTIVATED BY
POLITICAL ASPIRATIONS         AND NEPOTISM/    AND THE HIGHiEjeOSSltEE NATURE OF

THE CASE. THE COURT ASSIGNED STEPHEN W.            BYRNESAS APPEAL ATTORNEY/
RENDERING FRED JIMINEZ'S BRIEF MDOTi BY OPERTION OF LAW.            STEPHEN W.

BYRNE FORCED INDIGENT PETITIONER TO FILE PRO/SE BRIEF WHO IS NOT
EDUCATED    IN THE   LAW.

GROUND NINE: PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE
OF COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY

INSANITY/    AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S
MENTAL    STATE AT   THE    TIME OF OFFENSE.




                                      IX".
COMES NOW/ JOSES GONZALESIIII / HEREINSTYLED, PETITIONER/ FILES.;
THIS PETITION FOR DISCRETIONARY REVIEW IN ACCORDANCE WI^H TEXAS
RULES-^sAPPELLATE PROCEDURE RULE«68.      TO WIT:



                                ARGUMENT


GROUND   ONE:

TRIAL COURT ERRED IN ALLOWING PETITONER TO BE TRIED I=N SHACKLES IN
VIOLATION OF U.S.C-A. CONST. AMENDS 6TH & 14TH. TRIAL COURT INFRINGED
UPON PETITIONER'S PERSUMPTION OF INNOCENCE/ AND HIS RIGHT TO COUNSEL.
INEFFECTIVE aSSlSTAHGE OF COHNSBIL FOR OBJECTING TO PETITIONER BEING
SHACKLED AND THEREBY PROGEDURALLY DEFAULTING PETITtlONESFSSCCAIHa-
Petitioner contends the trial court abused its discretion in requi
ring Petitioner to wear shackles during trial/ and the wearing of
shackles was not harmless.    (RR.Vol.3/ Pg.l26/Line 3-13). From this
colloquy between the court and the Petitioner ^estEaihtsr.as articulated
by the court line 8, does not justify shackling of the Petitioner. The
Court of Criminal' Appeals has repeatedly critized       Nueces County Courts
for rountinely shackling defendants without articulating a need for
restraints.     Criminal Law Keynote-637-2: Grounds and circumstances
affecting the use of restraints in general. Essential State interest
justifying shackling a defendant is found where there is a danger of
escape or injury to the jury/ counsel/ or other trial participants.
U.S. V- Banegas/ 600 F.3d 342. Criminal Law Keynote-637.2: Rountine
shackling oi'defendants is prohibited. Bell v. Stated 356bS.W.3d 528/
rehearing overruled. (Tex-App.Houston[14th Dist.]2008).Generally a defen
dant has right to be tried without being shackled/ whether or not the
shackles are visible - to the jury? however/the trial r<s&U-r:t has discretion
to order restriants if there is a ^showing of a manifest need or execep-
tional circumstances/    such as-when a    defendant poses a   threat to himself
or others, yglesias v. State/ 252 S.W.Sd 733/ PDR rev. refd (Tex.App.
Houstonv[14th Dist.] 2007). Requiring a defendant to be tried in shackles
without adequate reasons is repugnant to iire spirit of r.the law and ideas
of justice whether those restriants visiblecor unseen-Grayson v.viState/
19225.W. 3d 790/ also see/ Mendoza v. State/ 1 S.W.3d 829 (Tex.App.-Corpus
Christi 1999)(Reversed Aug.31/1999). The Court of Criminal Appeals admoni
shed Nueces County Courts for rountinely shackling defendants. Peitioner
was "required to stand every time the jury exited or entered the courtroom
as well as move to a different courtroom for furthdfvior dire. Said restri-

                                   1.
 ARGUMENTS   CONT:

 ^ants were visible to the jurors.. See Vol ^3 .pg. 126. The Petitioner was
 denied the persuiaptibn of innocence and every aspect of due process under
 the U.S. Const.14th Amend/   6th Amends/ Equal Protection Clause.
 Ineffective Assistance of Gounseli To Wit:    Because Petitioner's counsel
 did not object to petitioner being shackled/ said counsel procedurally
 defaulted said claim for purpose of appellate review and such deficient
 performance prejudiced the out come and because of this act and ommission
 there is a probability that the outcome would have been different.
 Shackling of•Petitioner   without a demonstrative need compromised the
 formal dignity of the court and judicial proceedings and lead to harmful
 collateral effects- Such eff'ects cheifly included curtailing Petitioner's
 ability to communicate: freely v/with counsel because of the physical limi
 tations imposed by shackles and simply the distraction and embarrasment
 they caused the Petitioner. See/ United State/ v. Durham/ 287 F-3d 1297/
 1304 <llth Gir.2002)   ("Even if the [shackles] placed on the defendant are
 visible to the jury/ they still - may... confuse the defendant/ impair his
. ability to confer with counsel/ and significantly affected the trial
 strategy he choose to follow.") . Petitioner's attorney made the follow
 ing statement to the prospective jurors that tainted the whole trial
 process: I frankly/ rprobably will not be spending any'tiffie'-qiaeStioning
 that type of evidence because as I told you right from the get go/ Jose
 is in fact guilty of criminal homicide/ the question is what sort of
 criminal hombcide is he in fact guilty of? See/ (Vol.3/pg.147/4-9).
 Because Petitioner was shackled he did not approve of such trial strategy/
 whie^imade the trial process unfair and confused Petitioner/ and impaired ,
 his ability to communicate/ and significantly effected the trial strategy/
 wherein Petitioner was not informed of such trial strategy. Petitioner
 believed that temporary insanity would be the trial strategy and course
 his attorney would take. It appears that attorney's error for not object
 ing to shackling/ along with the attorney's anprofessional error that
 believing that Petitioner was guilty and shackling implied dangerousness
 in the jurries mind/ serverly infringed on Petitioners persumption of
 innocence/ was defificent performance that reasonable effected the out
 come ofcthe case. Petitioner was made to stand for the jury on numerous
 occassions/ not only were the shackles visible/ but because of the
 movement/ the chains were heard byithe jurors. In such a high profile
 trial/ here the errors originated from the trial court's saa sponte order/
 and trial court's reason for shackling the Petitioner are insufficient as
 a matter of law. See/ Garcia v. State/ 919 S.W.2d 370,381 (Tex.Crim.App.-
 1994). Because of errors appearing in the record PDR should be granted.

                                   2.
GROUND TWO:

THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER
FORMMUETIEEE BURGLARIOUS ENTRIES WHERE THERE WASOONEY (1) UNLAWFUL
ENTRY. IN VIOLATION OF TEXAS CONST. ARTICE 1§14 AND U.S.C-A- CONST-
AMEND. 5th AND V.T.C.C.P. ARTICLE 1.10. TO WIT:
Petitioner was convicted in a single trial and given multiple punishments
for the same conduct/ thereby invoking the jeopardy clause in the P»S.
Const. & the Texas Const. Petitioner was charged by indictment in Count I
with coniitting Murder in the course of a Burglary of a Habitation, and in
Count II/ Burglary of a Habitation with Intent to Commit Aggravated
Assault or a Felony- In Art- 1.10 V.T.C.C.P. States: No person for the
same offense shall twice be put inr jeopardyief life-be it-b©rtyf snor shall
a person be again put upon for trial for the same offense; after a verdict
of not guilty in court of competent jurisdiction. The rule is a State may
notpplace a defendant in doiable jeopardy; U.S. Const. V; Tex. Const. Art.
I§14; Benton v. Maryland/ 395 U.S. 781 (1969). This means the State may
not:. :.(1) prosecute a. defendant fGrvthd same offense after an acquittal;
and (2) prosecute a defendant for the same offense after a conviction; or
(3) obtain multiple punishments in a single trial for the same offense-
Illinios v. Vitale/ 477 U.S. 410 (1980); Brown v. Ohio, 432 U.S- 161 (197?
7). What we are concerned here is; "that Count I for Capital Murder is
predicated on a burglarious entry in order to be upgraded to Capital
Mureder- See, Tex. Penal Code § 19.03. Count 11, under Penal Code § 30.02
Burglary of a Habitation intent to Commit Aggravated Assault or a Felony-
The "same elements" test found in Blockburger v. U.S., 284 U.S. 299 (19-
32) questions whether the State is attempting to punish the defendant
twice for the same offense- This test asks the Court to examine each of
the statutes to determine whether each require a proof of:apdifferent
element the other does not- The Court abandoned the "Same ebsdaet" test
by overrulling Grady v. Corbin, 495 U.S. 508 (1990), in U.S. v. Dixon,
509 U.S. 688 (1993) . But in double jeopardy/mCiitiple punishment claims,
Blockburger is not the solo focus- Ervin v. State$?991 S.W.2d 804,814
(Tex.Ceim.App.1999)- .IfIthe Court has actual legislative intent of the
two statutes, that intent is the critical factor- If not then look at
Girdy V. State/ 213 S.W.3d 315/319 (Tex.Crim.App.2006)(if the prosecution,
in proving one element of one offense, also necessarily proves another
charged offense; if so, there must be clear legislative intent to punish
the offense seperately or multiple punishments are barred.)
                                  3.
GROUND TWO CONT:

The allowable unit of prosecution is the individual entry for burglary
is •   not the number of individual crimes committed once the defendant
makes the unlawful entry. Ex parte Gavazos* 203 S.W.3d 333 (Tex.Grim.-
App.2006). Vaughn v. State/ 239 S.W.3d 351 (Tex.App.-San Antonio 2007).
Here we have Petitioner sentenced to multiple punishments for one un
lawful entry. See/ Ex parte Castillo/ 432 S.W.Sd 457 (Tex-Crim.App.-San
Antonio 2014/ no petih; iDouble Jeopardy Keynote-4: Double jeopardy
clause impose few/ if any/ limitations on the legislative power to esta
blish and define the offense. U.S.C.A. Const.5th Amend. Double Jeopardy
Keynbte-144: Convictions for Capital Murder during the course of commit
ting Burglary of a Habitation/ and Burglary of a HabitatlgnrrinfefeBt to
eommxt a Felony (Aggravated Assault) violated double jeopardy clause;
even thou there were two victims/ the alloable unit of prosecution was
the unlawful entry. Not the complainant/ and the defendant was punished
multiple times' for a single entry. U.S.C.fiA 5; V.T.C.A. Pen. Code § 30.02
Ca). Double Jeopardy Kefnded-r32.1: Thie "most serious offense" which is
retained when convictions violate double jeopardy clause is the offense
of conviction which the greatest sentence was assessed; other::£getors
such as the degree of the felony, range of punishment, and rules govern
ing parole eligibility and awarding of good-conduct time/ are not consi
derations; overrulfling Landers v- State/ 957 S.W-2d 58/ U.S.C-A. Amend 5.
                   'h


The issue before us is convicting Petitioner of two burglarious entries
each with a different complainant but arising from a single unlawful en
try of a habitation constitute double jeopardy? The prosecutions theory
in the charging instrument that Petitioner committed Capital Murder in
the course of committing Burglary of a Habitation in Count:!. The pre
requisite of felony murder upgraded to capital ..murder is outlined in V.T.-
G-A. Penal Code § 19.03 (a)(2). Wherefore without the burglarious entry
                            '"I
Petitioner could only be convicted murder as defined. The integral part
of the conviction in Count I is the burglary of a habitation- It was
established at trial/ that Petitoner kicked in the front door/ shot/at::
Vidal Rodriguez/ then proceeded to the back bedroom and shot his estranged
wife-multiple times. See, (RR.Vol.4/pg.11-17. The theory of the indictment
differed from the theory at trial. Wherein the capital murder was placed
in a stratigic position of appearing first/ when in fact it was the-'
result of Count II/ Burglary of a Habitation intent to commit a Felony
(Aggravated Assault). Burglary of a Habitation is complete once the
unlawful entry is made, without regard tb whether the intended theft or
felony is also completed. V.T.C-A. Penal Code § 30.02 (a)$2)/ V.T.C.A.
                        i
                        !         4.
GROUND TWO CONT:


§ 22.02 Aggravated Assault (1) Causes serious bodily injury to another,
including the person's spouse; or (2) Uses or exhibits a deadly weapon
during the commission of the assault and causes serious bodily injury
to a person whose relationship to or association with the defendant is
described by by Sections 71.003/ 71.0021 (b)/ 71.005 (b), an offense
under this statute is a felony of the second degreeif; (to end of statute)-
The allowable unit of prosecution for assaultive offense is each complian-
ant. See, Phillips v. State, 787 S.W.2d 391^95(Tex.Crim.App.(1990)(Assault)
Ex parte Rathnell, 717 S.W.2d 33 ,36 (Tex. Grim. App .1986) (VoltiintaEy/Manslaugh
ter) . Burglary, however is not an assaultive offense; rather, its place
ment within Title 2 indicates that the legislature determined burglary
to be crime against property. Thus the complainant is not the allowable
Vinit-of prosecution in burglary, rather, the allowable unit of prosecution
is the unlawful entry. When a defendant is convicted of two or more offense-
s that are the "same" for double-jeporady purposes, our case law tells
us that the conviction for the most serious offense is retained and the
other conviction is set aside. See, Landers v. State, 957 S.W.2d 558/5S9—
60 (Tex.Grim.App.1997). Landers statesr^that the ^ni©st?sgf:ious" offense is
determined by the degree of the felony range of punishment and sentence
imposed. Landers is overruled by Ex parte Cavazos'. The third reason
applies some what differently to the double-jeopardy ebntext than the
misjionder context, we.fashioned a rule'designed to best ascertain what
offense the State would elected to proceed upon upon at the time of trial.
We did so because, in the misjionder context the State is not permitted to
prosecute both offenses at the same time. Hence our evaluation of the
seriousness of the offense coming into play only when the cahgejof punish
ment and the degree of the offense being the same- It is this very rea
son why Petitioner need competent legal counsel, for the complexity of
such issue. Petitioner's counsel acted as No Counsel at All! We shall
visit the misjionder doctrine in our next point of error. For the record
reflects that double jeopardy has appeared from the record, to the degree
that both sentences are equal in respect that Petitioner was sentenced
to life on both Counts, and the Court has ruled in Gavazos, 203 S^W-3d 333
(Tex-Crim-2006)- The most serious offense retained.-In this case both
sentences are equal, thereby jeopardy nullifying both- There being jeo
pardy appearing from the record, said convictions should be remanded and
aggHi^tal?/ or in lieu with instructions. See also. Ex parte Castillo/ 432
S.W.3d 457 (Tex.App.-San Antonio 2014, no pet. h.).
                                   5.
GROUND   THREE:



INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJIONDER
           OF TWO DISTINCT OFFENSES    IN THE SAME   INDICTMENT.

 COUNSEL DID NOT FILE PRETRIAL MOTION NOR OBJECT DURING TRIAL TO
 MISJOINDER OF OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL.
   SUCH OBJECTION WOULD HAVE RESULTED IN A DIFFERENT OUTCOME.
Criminal Law Keynote-620(3): Mandatory serverance of offenses only applies
to joinder of property offenses. V.T.C.A. Penal Code § 3.06(a).
Indictment and Information Keynote-127: State is prevented in the presence
of objection/ from alleging more than one non-property offense in a single
indictment/ regardless of the number of transactions involved. V.T.C-C-P.
Art.21.24. Indictment and Information-Reynote-127/129 (1): For State to
avoid joinder problems/ indictment for non-property offenses/ whether
arising from one transaction or seperate transactions/ should contain only
one Count in as many paragraphs as are necessary to allege various manner
and means of committing the one alleged offense. V.T.C.C.P • ;\ART. 21.24 (a).
Indictment and Information Keynote-196(7): To avail himself of pleading
limitations with respect to non-property offenses, defendant should file
pretrial motion to quash indictment orrurge/ sometime during trial/ that
State make an election; failure to object will result in waiver of plead
ing requirements. V-A.T.C.C.P- art- 21.24. Indictment and Information
Keyn©te-127: Indictment was invalid on basis of misjoinder where indictment
alleged more than r.pne:: rionproperty offense and property offense-
                  INEFFECTIVE ASSISTANCE OF COUNSEL
petitioner's counsel not filing Motion to Sever offenses/ nor Motion
to Elect/ nor Objecting to misjionder/ resulted in Petitioner's claims
to be procedurally defaulted for purposes of appellate reviex^. Prejudiced
the outcome of the trial/ resulted in the convictions for two offenses
for the same transaction which resulted In two life sentences- Because of
counsels deficient performance thereri-s treasonable probability that the
outca>!he would have been different- Such ommissions by the Petitioner's
counsel gave the State a-tactical advantage over Petitioner/ which resul
ted in the trial being unfair and biasd jury. U-S.C.A- Const- Amend- 6 & 14
Counsel's failure to file pretrial motion to quash/ or object was far
"below the range expected of reasonable/ professional competent assistance
of counsel." Counsel's performance thiis/ "did not measure up to the stan
dard required in the holding in StricMand/v466 U.S. 688(1984), and [if it
had/] there is a reasonable probability that the results would have been
different in the sentencing phase."
                                  6.
GROUND THREE CONT:


Under the applicable State prcedures there would have been an election,
and Petitioner would not have to face two offenses under the same jury.
Turning to the prejudice issue: Counsel Abandoned His Client; The manda
tory severance under §3.04 (a), applies to joinder of property offenses
listed under Title 7 of the Penal Code. See/ Waythe v. State/ 533 S.W.2d
849 iiTex.Criin-App.1976) - Capital Murder is not a property offense. It is
listed as an offense against the person, under Title Eive of the Penal
Code. V.T.C.A. Penal Coddoig.03.. However , the right iso-foeeesaTi election#
which follows from implicit statutory restrictions relating to the manner
in which non-property offenses may be joined in an indictment/ is support-
edbby precedent# it holds that the legilature/ by its amendment of art.
21i24 / has implicitly prevented the State::fromiiailegiagv. in a. single
indictment two or more nonproperty offenses if those offenses arose out
of the same criminal "incident/ act or transaction'."" Generally/"transac
tion" has come to mean a criminal event and the various paetieulaf offenses
committed within that event. See, Drake/ supra/ at pp.945-49/ (Petitioner's
original Brief and Appendix pg.l6). Thereby counsel abandoning his client
in a^critical stage of the proceeding resulted in inadequacy of representa
tion. fhere being ineffective assistance of counsel appearing from the
record/ said cause should be reversed and remanded with instructions.
INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL'S FAILURE TO FILE MOTION
TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED; HENCE PROSECUTION
COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION. GROUND FOUR: TO V3ITi
Petitioner's attorney failed to file motion to qaush the Information that
does not have signature on it. We are left with the proposition that the
case proceeded to a conconclusion with a documentation in the file to
 reflect that Mark Skurka or anyone else signed the Information charging
 Petitioner with an offense a further jurisdictional defect of itself.
 See, Holly v.State//i469 S.W.2d 136 ,137 (Tex .Crim.App. 1970) . See/ Exhibit
 "A" Pet- Appelate Brief). T-C-C-P- art- 21.21(a)/ Lacy V-State/ 160 Tex.
 Crim. 95/ 267 S'^;]W-2d 139/141(1948)- Because Petitoner is in need of aJity.
 at every stage of the proceeding it is emphasized here that attorney's
 knowledge and skill of the law and practices of the criminal trial and
 proceedings. Criminal Law Keynote-641.13(2): Performance of defense coun
 sel was not only unconstitutional unreasonable and ineffective, but coun
 sel abandoned required duty, of loyalty to his client; Counsel he acted with
 reckless disregard -for his client's best interest and at times, appearantl^
 to weaken his client's case. Just simply poor strategic choices. U-S-C-A-
                                  7.
GROUND FOUR CONT:

Const- Amend- 6th- It is emphasized that a "defendant need not show that
counsel's deficient conduct more than likely altered the outcome of the
case." Instead the defendant bears the burden of showing "that there is
reasonable probability that/ but for counsel's unprofessional errors, the
results of the proceeding^-/would have come /out different. A reasonable
probability sufficient to, undermine, confidence in the outcome." Id-/ 694/
104 S-Ct- at 2068/ T-C-C-P- art-1.14 Waiver of Rights: Punishing a lawyer's
intentional and unintentional errors by closing the courthouse door to his
client is both senseless and misdirected method of deterring the slight of
State rules. It is senseless because unplanned and unintentional action
action of any kind generally is not;, subject to deterrance; and to the
extent that it is hoped that a; threatend sanction addressed to the defense
     induce greater care and caution on the part of trial lawyers, thereby
forestalling negligent conduct and errors The potential loss of valuable
State remedies would be sufficient to this end. And it is misdirected
sanction because even if penalization of incompetence or carelessness will
enciourage more legal trianing and trial. preparation / the Petitioner / \as
oppossed to his lawyer, hardly is the proper recipient of such a penalty.
Espicially with fundamental constitutional rights at stake, no fictional
relationship of principal-agent or the like can justify holdingthe crimi
nal defendant accountable for the naked errorscg^ his attorney. This is
espicially true when so many indigent defendants are without any realistic
choice in selecting who ultimately represents them at trial. Indeed, if
responsibilty for error must be apportioned between the parties, it is
the State through its attorney's admissions and certifications policies,
that is more fairly held to blame for the fact that practicing lawyers
too often are ill-equipped to act carefully and knowledgeably when faced
with decisions governed by State procedural requirements. Hence, Petitioner
agrees with the proper functioning of our system of criminal justice,
necessarily places a heavy reliance on the professionalism and the judgment
of trial attorneys. A system that ascribes absolute forefiture of Petition
er's constitutional claim where his lawyer manifestly excercise no pro
fessional judgment at ail-where carelessness, mistakes, or ignorance is
the explanation of the procedural defaults. It is regrettable that certain
errors/.that might have been cured earlier had trial counsel acted expediti-
ously, must be corrected collaterally and belatedly. Hence, Petitioner s
attorney was was deficient and such deficient conduct prejudiced the
 outcome of the trial. Because of attorney's acts and ommissions said cause
 should be reversed and remand with instructions-
                                 8.
GROUND   FIVE:


             INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT FILING

         MOTION FOR CHANGE OF VENUE          IN HIGH PROFILE CRIMINAL

       PROSECUTION IN ACCORDANCE WITH V-A-T-C-C-P.          ART-    31.03.

         SAID WAIVER BY ATT0RNEY:EEFSUL"TED PETITIONER' S          RIGHT

                  TO RAISE   GROUND   FOR APPELLATE REVIEW.

Petitioner complains that deficient perforraace by attorney defaulted
his claim for appellate review, and prejudiced the outcome of trial.
Petitioner an Alice police officer was the subject of extensive media
coverage in the County and surrounding Counties wherein the instant
offense took place. Furthermore/ the Internet and Social Media followed
said case. Petitoner was the subject of a documentary/ wherein a series
of   local    television stations broadcast the       sventsrand circumstances

surrounding the case. See/ (App- Brief Bxh3)li>it "G"). Under art. 31.03 (a)/
a change of venue may be granted in a felony ©r5at.misdemeanor case punish
able by confinement on the written motion of the defendant. There was a
dangerous combination against him instituted by very influential persons/
by reason of which he canot expect a fair trial. Said publicity was per
vasive/ prejudicial/ and inflammatory. Here we aiee concerned with the
attorney not filing motion for change of venue/ after it became apperant
that Petitioner could not recieye a            fair and impartial trial/     and if
atorney's deficient performace prejudiced Petitioner? The court asked the
panel anyone knows about the case? (RR'iVol .2/pg.30/ line:6-23) Over 70
jurors raised their hands who had:personal knowledge of the case- In
VoJ'.2# pg.30/ line: 23S25.) 27 people had already made up their minds
      could not be fair and impartial. In (RR.Vol.2/ pg-58/1-25/pg.59/1-25 &
pg.60/1-25)/ juror no.2 explains in detail about the coverage in the Callei
Times. She describes the kidnapping of Petitioner's son/ wherein she has
formed an opinion as to the violence of the case. Also defense attorney
Woener Stated: "he never seen so many people who have made their minds up
in a case/ even with more publicity. fVol.2/pg.56/23-24). Defense counsel
should immeadiately filed a Motion for Change of Venues Kealizing from
the percentage of potential jurors that had already formed an opinion
about the guilt of the Petitioner/ that his elient could not recieve a
fair an impartial trial, "a defendant must show an ability to obtain a
fair an impartial trial." Coupled with counsel's disenchanment Petitioner
could not have recieved a fair and impartial trial because defense counsel
a'lready given up. See/ Williams v- State, 897 S.W-2d 351 {Tex-CriM*App.^
cert, denied/ 516 U.S. 946, 116 S.Ct.385, 133 L.Ed.2d 307 (1995). To

                                        9.
GROUND FIVE CONT:
•gastify a change of venue based on reGen.tfarid'significant ^amounts of
media coverage and that publicity regarding similar cases had the effect
of creating greater prejudice/ bringing "some afore-thought to people'
and making it "very hard" to find a fair and impartial jury. Petitioner's
attorney could, have called upon a number of potential witnessesa that
were listed on the prosecution's witness Irist for this eventuality. The ,
prosecution was prepared to fight a'change of venue motion/ witnesses from
several television stations/ newspapers/ and other social media outlets
were prepared to testify to the number of potential jurors exposed to these
segments. See/ (Appellants Brief Exhibit "C"). Petitioner's attorney could
have produced the requisite affidavits need to bolster his Client's positior
See/ (C.R. pg-30/32/ and 43). Here you have .77 members of the array who have
followed the case in the media, who have extensive knowledge of the case,
including kidnapping of Petitioner's son/ (ah offense he was not on trial
for), which further excebarrated the coverage and the amount of times this
coverage was repeated in a course of a year was-astronomlcal- Therefore,
even after the court conducted its vlbr.dire, it was clear from the record
that the trial court tried to rehabilitate the remainder of this poisoned
panel, we must also bear in mind, that the court was in a unique position
of hearing the testimony of the .jurors and guaglng the. siacerity of ,their
responses in light of the publicity about the case. Petitioner was entitled
to a change of venue if he could show that the there;.was influences in the
commiiiity which could affect answers on the vior dire. There are two
things that distinguish this case from others in which a majority of the
venire is familiar with- the case.. First the nature of the publicity is
quite different because/ Petitioner was a police officer/ there was a
buiglary/ a murder/ kidnapping/ an Amber alert went out/ there was a school
lockdown/ there was a Swat-standoff/hostage situation. NewsrStationsrreport
ed widely and did extensive coverage on the day of the offense/ and for a
year after until the date of trial. Potential jurors had the oppertunity to
watch it unfold. Second/ a large number of potential jurors could not set-
aside their opinion. This strongly indicates that pretrial publicity result
ed in actual identifiable prejudice to Petitioner. Also media coverage was
not accurate and objective/ because it reported an actual kidnapp were
there was none. Because Petitioner's attorney not filing the motion for
 change of venue, it rendered him deficient in his performance/ and because
 of -the ommission/ it is a probability that the outcome of the trial would
 have been different. It must be remembered that the court ordered a Gag
Order on the case. See, (CR.pg.30). Here we have the acts and ommisssions
                                10.
GROUNDdFIVE CONT:

of said attorney / who effectively abandoned his his Client. Said
cause should be reversed and remanded.

GROUND   SIX:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING A CHANGE OF VENUE
   AFTER IT BECAME IMPOSSIBLE TO SBAffiCMJURYVTHIST WASiiHNBTASDCiNi'HIGH
 PROFILE CASE.

 In change of venue cases; T.C.C.P. art.31.01/ the trial judge should
 have filed her own motion to change venue after the vior dire revealed
 that Petitioner could not recieve a fair and impartial trial. Because
 the jury that was actually seated was tainted by the rest of the array,
 along with the fact that this case was tried in the media before the
 actual jury was pooled. The Sixth Amendment gives the Petitoner the
 right to, a fair and impartial trial/ it is the presiding judge who condu
 cts the vior dire. It was impossible to seat a- jury in this high profile,
 media driven trial, trial judge abused her discretion. The large number
 of venire panelist were disqualified for cause, because they could not
 not set aside their opinions of the. Petiioner's guilts See, (RR-vol.2/pg.
 30/9,22/ & pg.31/13-25). See/ 14th Amend U.S. Const. Also/ V.T-C.C.P. art.
 31.03 (a)/ Mayola v. Alabama/ 623 F.2d 992/ 998 (5th Cir.l980)/ Von Byrd
 v. State/ 569 S.W-2d 883/ 890-91/ Russel v. State/ $46 S-W.3d 705/714
 (Tex,4App.Texarkana 2004) pet. ref d) / Crawfeord V. State, 685 S.W-2d 343/
 349-r350. The number of jurors that were unable to serve on the jury in this
 case demonstrates the extent of the pretrial publicity had permeated the
 community. Here out of 100 a large percentage more than %could be- impag/
 tial and already formed their opinions. See, (RR.Vol.2/pg.31/22-25). These
 panelist could not set aside their opionions is reasn enough to consider
 the entire community 'infected" by the pretrial publicity and prejudice.
 Thp inflammatory atmosphere and those actually seated were polsioned by
 the others. For this reason said cause should be reversed and remanded,
 and said former trial judge should be taken on vior dire for her acts and
 ommissions.                 GROUND SEVEN:

     INEFFECTIVE ASSISTANCE OF COUNSEL FOR ABANDONING PETITIONER
     ACTED AS NO COUNSEL AT ALL: ACTING AS MERE FRIEND OF COURT.
  Said counsel abandoned his Client at critical stage of the proceedings.
  In the toality of representation by defense counsels', Mr. Mark Woerner,
  Mr. Steve Schiwetz, and Mr. Mark Gonzales abandoned their client. Mr.
  Woerner at the orjset of trial was not concerned about shackling of Client,
  nor did any othei: attorney object- Furthermore, Mr. Woerner told the
                                   11.
GROUND   SEVEN CONT:

that his client was guilty, which nullified any defense in regard to
Count II/ and resulted in the jury bein^ biased. A strategy the Petitioner
did not approve of/ nor able to communicate his disbelief about such
remarks that infringed upon his persumption of innocence, the Supreme Court
has longed recgonized that   'the right to counsel is the right to effective
assistance of counsel'" under the Sixth Amendment/ Strickland v. Washington
466 D.S. 688 (1984); In this case, We find that the defease counsel did
not put up any meaningful defense during the punishment phase/ nor file
any,pretrial motion that Petitioner was never convicted of any felony in
this State or any other State/ See, V.T.C.C.P. art.42-12(d)(8)(c) states:
A defendant is eligible for community supervision under this section only
if before the. trial begins the defendant files a sworn ai6£i6ft"to the judge
that the defedant has not been previously convicted of a    felony in this or
any other state/ and the jury enter in the verdict a finding that the infor
mation is true. See,   (RR.Vol.2/pga9/l-I7). Because of the forceful argument
by State's attorney Mr. McCaig that Petitioner was not eligible for proba
tion/ Petitioner's attorney should have researched further in the same
code to ascertain that Petitioner was eligible for probation. Furthermore/
counsel did not reasonably argue on his client's behalf during punishment
phase/ espicially in regard to Count II. See/   (RR.Vol.5.pg.126/3-13). Furthe
-more/ defense counsel failed to investigate the extensive media coverage/
Television Documentary which featured Petitioner in family violence^ failed
to adequately prepare a defense/ nor subject the State's case to the advesa
rial testing process/ by having fellow police officer's who were having
illicit affairs with his wife there to testify. Nor did he interview them/
nor have them appear before the court/ Officers Noe Roel/ Emede Reyes/ Buzz
esparza/ Luis Rene Ozuna/ and Frank Estrada. Defense Counsel did produce
phone records.-See/ petitioner's appeal brief Exhibit "14-16"). That was
the extent of the preperatxon:for..the capital murder trial. Eortheraore/
although court ordered physcological testing of the Petitioner/ there was
no report by the psychologist included in the record/ nor was he called to
testify as to the Petitioner's mental state at the time of offense. Once
the attorney told the jury his client was guilty/ he was wholly unprepared
to make a platable defense of his theory/ and effectively undermined the
persumption of innocence in Count I and Count II. This was no defense at
all/ but a tactical retreat/ and pure abandoment of his client. Even grant
ing deference to counsel's choices/-   we cannot conclude that he need-not
undertake further investigation/ "before proceeding with an argument he
was wholly unprepared to make. Burger/ 107 S.Ct. at 3126. The Court should
find elSarly established that Petitioner's counsels' so abandoned their
"overarching duty to advocate the Petioneir's cause/ that the State proceed-
                                 10
GROUND   SEVEN   CONT:

-ing were almost non-adversarial. Informing the jury that his client
was guilty/ permeated that guilt thru both counts and destroyed               any
persumption of innocence        f or Gccurit: II - Counsel's actions in regard
to sentencing in Count II even more clearly indicate the abandonment
of his duty of loyalty/ by switching -from the jury to sentence/ to
judge/ and failed to put on any mitigating factors/ and failed to advo
cate his client's position. The most striking indication of counsel's
performance and failure to fufill his duty of loyalty to his client is
from his behavior at     the t r i a l   itself.    "Counsel at the summation of the

trial    / counsel reffered to the difficulty his client had presented to
him. See,   (RR.vol.5.pg.99 / line 20-25/ Pg.lOOllilne 1-20) . Counsel is in
fact telling the jury he could not present any mitigating eirCQmstances/
when evidence against his client is so overwhelming. In closing counsel
lamenated :      (RR.Vol.5/pg.102/13-16). Petitioner's attorney did not simply
make poor choices; he acted with reckless disregard for his client's case.
Whatever the reason the record supports that counsel turned against his
client. There is no apperent reason for counseil's behavior/ although he
repeated many times that his client was guilty and how difficult this
case was. This conflict in loyalty               unquestionably affected his represen
tation. A defense attorney who abandons his duty of loyalty to his client
and effctively helps the State in an effort to obtain a conviction suffers
from an obivious conflict of interest^ Sich an attorney/-like unwanted
counsel/ ''represent' the defendant only through a legal fiction." See/
Faretta v. California/ 422 D-S- 806#821 (1975). In fact an attorney is
burdened by a conflict between his client's interest and his own sympa
thies to the prosecution's position is considerably worse than an attorney
with loyalty to other defendants/ because the interests of the State and
the defedant are necessarily in opposition. As the Supreme Court has
assereted: "The right to effective assitance of counsel M thus the right
of the accused to require the prosecution's to survive the crucible of
meaniningfuii adversarial testing. . . [i]f the process losses its character
as confrontation between adversaries/ the constitutional guarantee is
violated." See# Cronic# 466 U.S. at 656-57. Petitioner urges the Court/
that reversable error has appeared from the record because of sadd coun
sel's deficient performance that prejudiced the outcome of the trial.
Said cause should be reversed and remanded.

Ground Eight:

S>fiT!DafM®^R;';S counsel for direct appeal FRED JIMINEZ COMMITTED           lENEFFEC-
ASSISTANCE OF COUNSEL BY BLACING A FRAUD BEFORE THE COURT BY FILING

                                          1 3.
GROUND      EIGHT   CONT:

FRIVOLOUS BRIEF, FOR SUCH ACTIONS                    MOTIVATED BY POLITICAL ASPIRATIONS^
NEPOTISM/      AND THE HIGH PROFILE NATURE OF THE CASE.           THE COURT ASSIGNED

STEPHEN W.      BYRNE AS APPEAL ATTORNEY/           RENDERING FRED JIMINEZ'S BRIEF MOOT

BY OPERATION OF LAW. STEPHEN W.               BYRNE FORCED INDIGENT PETITIONER TO FILE

PRO/SE BRIEF WHO IS NOT EDUCATED IN THE LAW-
Erejudice/ whether necessary or not/ is established under any applicable
standard. Petitioner was.charged with several crimes/ the State assi^^edf
counsel Fred Jiminez to represent him on his direct review of convictions.
Fred Jiminez's wife was the District attorney for Nueces County/                  (Anna
Jiminez)/ whose office prosecuted the Petitioner. Becausg -of the conflict
of interest ,.iand the high profile nature of the case, said attorney filed
a frivolous            v, brief/       knowing well that Petitioner's case was filled
with meritorious claims. Such insidious intent is demonstrated by the
fraudulent document foisted upon the Court as an Anders brief. Because
of the political aspirations of Attorney's wife and the high profile nature
of'.: the case/ who was at the time of the filing of brief embattled with
the State over corruption charges while she was in office/                said attorney
did not bring his legal-skill and knowledge to bear. Petitioner would
have succeeded . Because Stephen W.. "Brynd was the counsel chosen to repla
ce Fred Jiminez / because the court was not satisfied with               Fred .jiminez's
representation.        -The purpose of the SiuxaarAiriend guarantee: is to insure that
defendants are represented by counsel and not have to face lybrinth of the
criminal justice system unawares. Judicial scrutiny of cioxttk®!''^ performance
must be differential (highly)^ Petitioner urges the Court because -the
record was fully developed/ Petitioner should be allowed to proceed with
ineffective assistance of counsel claims as postulated by the opinion in
Trevino v. Thaler/569 U.S._(2013)(citation ommitted). Because of the con
flict of interest (See/ Exhibit "D" Appellate Brief)/ and attorneys abandon
ing     etitioner there is a probability that the outcome would have been
different. Because revers.ible              error has appeaared in the record,/   Petitione
urges the Court to allow him to take said attorneys on vior dire to further
develop the record/ as well as reverse and remand said cause. .
GROUND NINE:        PETIiETIONER' S     COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY                INSANITY,

AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL STATE AT THE
TIME   OF   OFFENSE.

Ciriminal Law Keynote-773: If evidence from any source raises the issue of
insanity, the trial court must include an instruction on insanity defense
in jury charge.V.A.A.C.P.art.46.03; V.T.C.A., Penal Code §8.01.
                                   u


                                             14.'
GROUND NINE   CONT:

When considered with the facts and circumstances concerning an accused
and defense/ lay opinion testimony may be sufficient to raise the defense
of insanity. V-T.C.A./ Penal Code § 8.01. During the trial on the merits/
Petitioner's counsel raised the issue of Petitioner's mental state that
lead up to the commission of the offense. See/(RR.Vol.5/pg.99 line 25#pg.
100 line 1-2G).From the foregoing by Petitioner's counsel demonstrates
that he was of the opinion that his client "snapped." Which is eln off color
remark of insanity.Petitioner's attorney filed motion for psychological
testing which was granted by the court. See/ (CR-pg48). It appears from
the record that counsel was headed towards this defense/ then abandoned thi,
defense/ even thou that was the agreement between Petitioner and attorney.
Knowing that; Petitioner was a former Border patrol Agent/ got hurt on this
assignment/ suffered from Post Iraumatic Stress snydrome from this assign
ment. Also/ as an Alice Police Officer/ which greatly effected his physco-
logical well being/ coupled with the fact that Petitioner's wife was having
multiple affairs with Petitioner's co-workers who were Police Officers.
Also/ the amount of stress that police officers' experience on a day to day
level/ such amount of stress police officers' on a national level is well
documented, and the amount of domestic violence involving officers' and
members of the armed Forces in like situations. Petitioner's attorney was
derilict in his duty for not preparing for this defense, soi if by moral
insanity it be understood only a disorder or perverted state of affections
or moral powers of the mind/ it cannot soon be disgarded as -affording any
shelld from punishment for crime: if it can be truly said that one indulges
in violent emotions/ such as remorse/ anger/ shame/ grief/ and the like is
afflicted with homocidal insanity/ it would be diffucult/ yes/ impossible/
to say. where sanity ends/ and insanity begins* We say to you/ as a result of
our refelections on this branch of the subject/ that if the prisoner was
actuated by an irresistable inclination to kill/ and was unable to control
or subjugate his intellect... he is entitled to acquittal. (|te Justice
PaxsoH/ 88 PA.291/Jan.20/1879). What then is that form of diease/ Dominated
Ho'irtocidal Mania/ which will excuse one for having committed a Murder?
Cheif justice Gipson calls it that unseen ligament pressing on the mind
and drawing it to the consequences which it under coecerion which/ while
it results are clearly percieved-/ is incable of resistance-aii invisible
inclination to kill. It was error for trial counsel not ask for instructione
punishment stage of trial due to insanity/ furthermore/ Petitioner's attor
ney and State's attorney Ms. Dorsey put the charge together/ so it was
 ineffective assitance of counsel that his attorney subjected his cl
to such eregrious harm both great and apperant. Ex parte Duffy/ - /
                               is:.
Ground Nine Cont:
S.W.2d 507 (T6x.Criin.App.1980) . This standard requires that the court
evaluate complaint of;ineffective assistance at the punishment Stage deter
mining first/ whether counsel was reasonably likely to render ineffective
assistance of counsel/ and second/ whether counsel reasonabley rendered
ineffective assistance.      The record is replete with the litanies of the
grave and fatal errors committed by counsel in this case- These errors
jctp^ged    by the totality of the repesentation / denied him a fair trial. Mer-
ly showing that they had some conceivable effect on the proceedings is
inadequate. Strickland/ 466 U.S. at 693. Petitioner urges the Court to
rev.-      said cause and remand with instructions            . ,
                                 CONCLUSION

Petitioner would urge the Court/ that he falls under the narrow ruling in
Trevino        Th4ier/ wherein the record was fully developed and the errors
of his attorney were plain and apperrant. Said trial was overwhelmed by
media and public pressure/ which resulted in the impossibility to seat a
fair and impartial jury^/Petitioner was forced to wear leg shackles during
the entire trial with no demonstrative reason by trial                       judge/ and counsel
did not even object/ because he was assisting the State in helping to
obtain -a conviction - Counsel rendered     ineffective assistance on numerous
occasions/ destroying Petitioner's persumption of innocence when he decided
to abandon the temporary insanity defense and just throw his client to the
wovles. Petitioners appellate attorney completely missed the double jeopar
dy issue/and affadavit and information not being signed, as well as was
motivated by nepotism and other factors and filed a frivolous brief.
From the numerous litanies and acts and ommissions of counsels'                       in this
case.'     Said cause should be reversed and remanded.
                                   PRAYBB
Petitioner Prays that the Court grant him this PDR and any and all relief
requested herein.
                           CERTIFICATE OF   SERVICE

A true and correct copy was hand delievered to the Nueces County district
attorney Hark Shurka on 7/ /15. At the litieces County Courthouse/ 901
Leopard      St- Corpus Christi# Texas 78401/         also Atty/General P.O.Box 12405/
Aastin/     Texas 78711.
                                              Respectfully ^ubnj^tte^
                                              By:
                                              Jose (^nzales All #1832029
                                              James      v.   Allred        unit
                                              201   FM    369 N.

                                              Iowa Park/            fexas    76367
                                     16-.
APPENDIX
                                                                             NUEOES COUNTY COURTHOUSE
CHIEF JUSTICE                                                                901 LEOPARD. 10TH FLOOR
  ROGELIOVALDEZ                                                              CORPUS CHRISTI, TEXAS 78401
                                                                             361-888-0416 (TEL)
JUSTICES                                                                     361-888-0794 (FAX)
  NELDAV. RODRIGUEZ
  DORI CONTRERAS GARZA                                                       HID/M.GO COUNTY
  G!NAM.BENAV!DES                                                            ADMINISTRATION BLDG.
  GREGORY T. PERKES
  NOPAL LONGORIA                      Coitrt of                              100 E. CANO. 5TH FLOOR
                                                                             EDINBURG, TEXAS 78539
                                                                             956-318-2405 (TEL)
CLERK
  DORIAN E. RAMIREZ                tS^irteentj) Bisttrict of tlDexasi        956-318-2403 (FAX)



                                            August 14, 2014

      Hon. Adoifo Aguilo Jr.                         Hon. Fred Jimenez
      Assisfent District Attorney                    Attorney At Law
      Nueces County Courthouse                       509 Lawrence, Suite 301
      §©TteDprard - Room 206                          Corpus ChristIi TX 78401
      Corpus Christi, TX 78401                       * DELIVERED VIA E-MAIL
       * DELIVERED VIA E-MAIL *
                                                     Mr. Jose Gonzales III
       Hon. Mark Skurka                              TDCJ #1832029
       District Attorney                             James V. Allred Unit
       901 Leopard Street, Room 205                  2101 FM 369 North
       Corpus Christi, TX 78401                       Iowa Park, TX 76367
       * DELIVERED VIA E-MAIL *

       Re:         Cause No. 13-13-00.011 -CR
       Tr.a.No. 11-GR^14W            ,
       Style:      JOSE GONZALES III v. THE STATE OF          rEXAS




                Enclosed please find the opinion and judgment issued by the Court on this date.
                                                 Very truly yours,


                                                 Dorian E. Ramirez, Clerk

       DER:dsr
       Enc.
       cc:      State Prosecuting Attorney (DELIVERED VIA E-MAIL)
                105th District Court (DELIVERED VIA E-MAIL)
                Hon. Patsy Perez, District Clerk (DELIVERED VIA E-MAIL)
                Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region,
                (DELIVERED VIA E-MAIL)
                  THE THIRTEENTH COURT OF APPEALS


                                   13-13-00011-CR



                                 JOSE GONZALES III
                                           V.
                               THE STATE OF TEXAS


                                 On Appeal from the
                    105th District Court of Nueces County, Texas
                            Trial Cause No. 11-CR-4141-D


                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.

      We further order this decision certified below for observance.

August 14, 2014
                            NUMBER 13-13-00011-CR

                                        OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


JOSE GONZALES III,                                                          Appellant,




THE STATE OF TEXAS,                                                         Appellee.


                 On appeal from the lOSth District Court of
                              Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza and Benavldes
                 Memorandum Opinion by Justice Garza

      Ajury found appellant Jose Gonzales III guilty of capital murder, a capital felony
offense, see Tex. Penal Code Ann. § 19.03(a)(2), (b) (West, Westlaw through 2013 3d
C.S.), and burglary of a habitation to cpmn^it afelony (aggravated assault), a first-degree
felony offense. See id. §30.02(a)(3), (d)(1) (West, Westlaw through 2013 3d C.S.). The
trial court assessed appellant's punishment for the capital murder offense at life without
parole, see id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.), and assessed
punishment for the burglary of a habitation offense at life Imprisonment, with the
sentences ordered to run concurrently. Appellant's court-appointed counsel has filed an
Anders brief. See Anders v. Califomia, 386 U.S. 738, 744 (1967). We affirm.
                                           I. Anders Brief

        Pursuant to Anders v. Califomia, appellant's court-appointed appellate counsel
has fired a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of error upon which an appeal can be predicated. See id.
Counsel'sbrief meets the requirements ofAnders as itpresents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 262 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief
need not specifically advance 'arguable' points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503,510 n.3 (Tex. Crim. App. 1991).
        In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.
June 25, 2014), appellant's counsel carefully discussed why, under controlling authority,
there is no reversible error inthe trial court's judgment. Counsel has informed this Court,
in writing, that counsel has; (1) notified appellant that counsel has filed an Anders brief
and a motion to withdraw; (2) provided the appellant with copies of both pleadings; and
(3) informed the appellant of appellant's rights to file a pro se response, and review the

        1The Texas Court of Criminal Appeals has held that "the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
 court those issues which the indigient appellant believes thecourt should consider in deciding whether the
                                                     2
record preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 2014 WL

2865901, at *3, Stafford, 813 S.W.2d at 510 n.3: see also In re Schulman, 252 S.W.3d at

409n.23.

       The record shows that appellant was provided a copy of the record on October 21,

2013. After this Court granted several motions for extension of time in which to file his

pro se response, appellant filed his pro se response on May 23,2014.


                                       II. Independent Review


       Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75,80 (1988). When an Anders brief and a subsequent pro se response are filed, a court

of appeals reviews the entire record, and: (1) detemriines that the appeal is wholly

frivolous and issues an opinion explaining that it finds no reversible error; or (2)

determines that there are arguable grounds for appeal and remands the case to the trial

court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826^

27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not

review those grounds until after new counsel has briefed those issues on appeal. Id.

       We have reviewed the entire record, counsel's brief, and appellant's pro se

response, and we have found nothing that would arguably support an appeal. See id. at

827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that itconsidered

the issues raised in the briefs and reviewed the record for reversible error but found none,

the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.");



case presents any meritorious issues." Inre Schulman, 252 S.W.Sd 403,409 n.23(Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693,696-97 (Tex. App.—Waco 1997, no pet.)).
                                                3
Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the

judgment of the trial court Is affinmed.

                                       III. Motion Tb Withdraw

        In accordance with Anders, appellant's attorney has asked this Court for

pemiission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jefferyv. State, 903 S.W.2d 776, 779-80

(Tex. App.—Dallas 1995, no jaet.) ("[I]f an attorney believes thei appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attomey must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's

motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered

to send a copy of this opinion and this Court's judgment to appellant and to advise him of

his right to file a petition for discretionaiy review.^ See Tex. R. App. P. 48.4; see also In

re Schulman, 252 S.W.3d at 412 n,35: Ex parte Owens, 206 S.W.3d 670,673 (Tex. Crim.

App. 2006).

                                                            DORI CONTRERAS GARZA,
                                                            Justice
Do not publish.
fEX.-R.App.P.47.2<b).
Delivered and filed the
14th day of August, 2014.




         ^ No substitute counsel will be appointed. Siiould appellant wish to seel<further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attomey to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals, see Tex. R. App. P. 68.3,
and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See Tex: R. App. P.
68.4.
                                                       4
^ms.




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