Lewis, Aundri D AKA Aundri Lewis ( 2015 )

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1 recently attempted to file a noiton for Appointment of Counse11vith the
Dear Hr.>Acoata:
Court 0£ Criminal Appeale under Cause No¢ 1024294~0 due to the 230th Judicia1
Distric Court of Harris County, Texas° a 1etter to inform me that my Writ had been
forwarded to your court.
0n Auguat 07 2015 I recieved a 1etter iron you dated August 05 2015 informing
mthat a thorough search had been performed and that there was no record of a
Writ 1107 Cause No# 1024294-¢ being filed and in which case my motion for Appointnent
Of counsel was being care hecht P~
Of Counsel was being sent back to me.
Then on Auguet 10 2015 I recieved a card from you dated August 03 2015 saying
that on this day the epp1icetion fora
1107 Writ 02 Habeae Corpus had been recieved
and presented to the Court. WR-GS, 716-04.
Becueee of the conf1icting correspondence 1 am once again sending a copy of my
Uoiton !or Appointnent 0£ Couneel in the hopes that it lay be properly filed.
P1eaee: end Thenk you for your assistance in such a eituation.
.Sincerely
Auna;i L¢vis 91305555
!rench Robertson Unit
12071 rn 3522
Abi1ene,?eree 79601
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cause No. 1024294-€ >’W§tfl *?¥€§f#‘ `~
The State Of Texas § In The 230th
VS. g J d' ' l D' ' ,
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Aundri Lewis § Court Of harris Co NH/‘Ila_i§\s_;!h§
DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL FOR HABEAS CORPUS
UNDER TEXAS FAIR DEFENSE ACT, ARTICLE 1.051 V.A.C.C.P.
§§§§§§ `
Io The Honorable Court and Judge Thereof:
Comes now, Aundri Lewis, Defendant in the above styled and numbered
cause proceeding pro se and in pursuant to the Texas Fair Defense Act, codified
at article 1.051, texas Code of Criminal Procedure, and section 24.016, Texas
Government Code, and ask the Honorable District Court to appoint him counsel
for the specific purpose of raising his substantial cladns of lneffective As-
Sistance of Trial Counsel in an application for writ of Habeas Corpus relief
pursuant-to Article 11.07 Texas Code of Criminal Procedure in support of this
motion, Defendant will show the following:
I.
The Applicant, Aundri Lewis, is confined pursuant tothe judgement and
Sentence of the 230th District Court of Harris County, Texas, in Cause No.
1024294, where a jury convicted the applicant of Aggravated Assault with a
deadly weapon. The jury assessed punishment enhanced by two(2) prior convict-
ions, at forty-five(é§) years confinement in the Texas department of Criminal
Justice-Institutional Division.
The first Court of Appeals affirmed the applicant's conviction in the
lprimary case on December 21, 2006, LEWlS v. STATE, No..Ol*OS-OOSlS-CR, 2006
WL 3751408 (Tex. App.-Houston Llst Distj Dec. 21, 2006, no pet.)(mem.op. not
disignated for publication).
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The applicant's initial application for Writ of Habeas Corpus, Cause
No.1024294-A, was denied on April 23rd, 2008. The applicant's second writ for
Habeas Corpus, Cause No.1024294-B was dismissed on November 13, 2013.
ll.
The Honorable District Court is authorized by Article 1.051 (d)(3),
Code of Caninal Procedure, to appoint an attorney to represent the Defendant
in this matter if he is indigent and the Court concludes the interests of jus-
tice requires representation. Tex. Code Crim. Proc. Ann.,art.l.OSl Ed.E3 Everon
2014. See Beard vs. State, 2438;W.3d 783,786 & n3 (Tex.App.Amarillo 2007). Sec-
tion 24.016, Government Code, also authorizes the District Court to appoint
Counsel to represent an indigent civil litigant in exceptional cases in which
the public and private interests at stake are such that the administration of
Justice may be best served by the appointment. Tex.Gov'T Code Ann.,sec.24.016
Nernon 2014). See Traveler's Indem. Co. v. Mayfield, 923 S.W.Zd 590,5§3, (Tex.
1996), Spigener v. Wallis, 80 S.W.3d 174, 183(Tex;App.-Waco 2002); see also
{ Talbert v. Gibson, 67 S.W.3d 368;372 (Tex. App.#Waco'ZOOl) (incarceration of
indigent litigants "prdnary exceptioinal factor" warranting appointment of
counsel due to fact that incarceration creates significant limitation upon lit-
igant's ability to conduct adequate investigation and to obtain evidence supe
porting such claims); and see Ex parte Rieck, 144 S.W.3d 510, 515-16 (TeX.Crim.
lA;pp. 2004) (Habeas dorpus'proceedings, including those seeking relief from con-
finement in the criminal justice system, generally considered to be a civil f
nature).
Recent decisions by the U.S. Supreme Court indicates that the interests
of justice warrants the appointment of counsel in this case by the District
Court for the purpose of representing the Defendantt in meaningfully seeking
collateral review and the_adjudication of the merits of his substantial claim
_of lneffective Assistance of trial Counsel as well as ineffective Assistance
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of Appellate Counsel¢
ln Martinez v. Ryan, 566 U.S,l (2012), the Supreme Court held that a
"procedural bar" by default would not prevent a Federal Court from hearing a
substantial claim of lneffective Assistance of Counnsel if the State's initial-
review collateral proceedings of a prisoner's ineffective assistance of trial
counsel claim is in many ways the equivalent of his direct appeal as to that
claim, if the State does not appoint an attorney to assist the indigent prison-
er in the initial-review collateral proceeding, he is and has been denied fair
process and the opportunity to comply with the state's procedures and obtain an
adjudication on the merits of his claims, similar to instances in attorney ap- `
pointed to purue the direct appeal is ineffective.
Subsequent to the Martinez decision, the Supreme Court decided a Texas_-
case similar to that of Martinez wijithe same results. See Trevino v. Thaler,
569 U.S. 1911,(2013). ln Trevinoj_the Supreme Court concluded that where, as in
Texas, the state procedural framework, by reason of it's design and operation,
makes it highly unlikely in.a typical case that a defendant will have a meaning-
ful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal, the Court's holding in Martinez applies. See also, lbarra v.
Stephens 723 F3d 599 (5th Cir.2013).
v III.
SUBSTANTIAL CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
EXTANT IN THIS CASE
A substantial claim of ineffective assistance of trial counsel exists
in this case§ due to the facts that trial counsel did not adequately investigate
this case, giving erroneous advice refusing to use the defendant's only viable
defense and neglecting to object to inadmissible hearsay statements that were
placed in front of the jury for the improper use of substantive evidence to ob-
tain a conviction.
If the defendant's trial attorney/counsel would have done a proper or
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thorough investigation of the time(s) given in this cause, to compare with the
time(s) of the defendant's school record and withthe hospital admission's record,
it would have been obvious that all time(s) given were conflicting and if shown
to the jury they would only show that the defendant could not and was not the
assailant which would have meant there was no way possible to convict the defen-
dant beyond a reasonable doubt.
Prejudicing the Defendant's defense by refusing the only viable defense
available (alibi) while giving erroneous advice about the situation "because
' *: the complainant was never exact" on the time of the incident the defense was
not the end of all defenses.
ln which case to make such a decision places the burden of proof on
the Defendant and takes it off the State and brings question to the skill and
knowledge of the trial counsel.
Trial counsel also failed to object to the prosecutions use of inad-
missible hearsay statements in spite of the clear reason for the prosecutor's
actions being to place such statements in front of the jury as substantive
evidence of truth to gain a conviction.
IV.
DEFENDANT IS INDIGENT
Defendant continues to be indigent and unable to retain the services of a
Licensed attorney to represent him in pursuit of appellate review of his sub-
stantial claim of ineffective assistance if trial counsel (See attached Dec-
laration of lnability to pay costs.)
V.
GUlDANCE OF OUR FOREFATHERS
Defendant respectfully expresses his ernest desire for the District Court to
remain mindful that the paramount focus in this particular judicial matter
"is not the (defendant's) innocense or guilt, but solely whether (his) con-t
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stitutional rights have been preserved." Accordance Moore v; Dempsey, 261 U.S.
86, 87-8 (1923); See also Irvin v. Dowd , 366 U.S. 717,722 (1961) (Habeas Corpus
relief available to redress due process violations "regardless of the heinousness
of the crime Landj the alledged guilt of the offender"), Ex parte Millingan, 71
U.S. (4 wall) 2, 118-19 (1866) ("Lljt is the birthright of every American citizen
when charged with a crime, to be tried and punished according to the law. The
power of punishment is alone through the means which the laws has provided for
that purpose, and if they are ineffectual, there is an immunity from punishment,
no matter how great an offender an individual may be, or how much his crime(s)
may have shocked the sense of justice of the country, or endangered it's safety.
By the protection of the law, human rights are secured; withdraw that protection,
and they are at the mercy of wicked rulers, or clamors of an excited people.")
VI.
CONCLUSION
For the foregoing reasons, the Honorable District Court should appoint counsel
for the specific purpose of investigations of Defendantls claim(s) of Ineffec-
tive assistance of Trial Counsel, developing the record as necessary, and pre-
paring that claim in a form adequacy to insure meaningful appellate review of
that claim on the merits.
PRAYER
Wherefore, premises considered, Defendant respectfully prays the Honorable
District Court grants this motion and order the relief requested. Defendant
prays for general relief.
Respectfully subnitted,
Aundri D. Lewis b
TDCU'No._1305555 _
French M.Robertson Unit
12071 FM 3522
Abilene, Tx. 79601
Devendant/Movant, Pro-se
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