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_^____________ Applicant f#0 5f
Jeremy Crespin
TDCJ No. 1807429
Hughes Unit
Rt. 2, Box 4400
Gatesville, TX 76597
Clerk
Court of Criminal Appeals of Texas
P.O. Box 12308
Austin, TX 78711
February 28, 2015
RE: WR-82,141-04 and W^-82,141-03
Dear Clerk:
PLEASE FILE THE ENCLOSED MOTION IN BOTH OF THE ABOVE REFERENECED
CASES (WR-82,141-04 and WR-82,141-03).
I
Please find enclosed one original of "Applicant's PRO SE
Motion for Leave to Suggest Court to Reconsider, On Its Own Initiative,
the Denial of Relief in These Writ Application."
Please FILE it in both cases and present it to the Court for
action.
Thank YOU for your time and assistance in this mater
Respectfully,
Jerer^ CrespinJ'
Applicant PRO SE
JC/swd
cc: FILE
DA
CCA WRIT NO(S). WR-82,141-03 AND WR-82,141-04
§ IN THE COURT OF CRIMINAL
EX PARTE §
.§ APPEALS OF TEXAS
JEREMY CRESPIN §
§ AT AUSTIN, TEXAS
APPLICANT'S PRO SE MOTION FOR LEAVE TO SUGGEST COURT TO RECONSIDER,
'TTg OWN INITIATIVE, THE DENIAL OF RELIEF IN.THESE WRIT APPLICATIONS
TO THE HONORABLE JUDGES OF THIS COURT:
Applicant, Jeremy Crespin, first received a copy of the convicting
court's Findings of Fact and Conclusions of Law ("Findings")
on Monday, February23, 2015. This Court denied Felief in these
writ applications on Wendsday, February 25, 2015. Those 2 days
were not sufficient time for Applicant to file OBJECTIONS to
the convicting Court's Findings.
Priorly, in a "motion to stay", Applicant had asked this
Court to require the convicting court clerk to' provide Applicant
with a copy of the Findings. It appears that, rather than resolve
that concern in the open, this Court utilized back channel (and
ex parte) communications with the convicting court officals and
"dismissed" the motion to stay. The result being, that while
Applicant (thankfully) received a copy of the Findings, as a
pratical matter Applicant was not given 10 days to file OBJECTIONS
to those findings (as was requested in the motion to stay). See,
Tex. R. App. Proc, 73.4(b)(2).
Thus, Applicant request leave to suggest that this Court
RECONSIDER, on its own initiative, the denial of relief in these
article 11.07 writ cases. See, Tex. R. App. Proc., 79.2(d).
And, that upon reconsideration, or rehearing, that this Court
consider Applicant's OBJECTIONS to the convicting court's Findings.
Primarly, this Court had previously determined that Applicant
had alleged facts -that, if true, might entitle him to relief and
that additonal facts were needed. See, CCA Order in Writ No.
wr-82,141-03 (12/17/2014). Yet., the only additonal facts gathered
was trial counsel's "answer" which contains no facts reg-lative
to the grounds raised in the writ applications.^ Thus, the Convicting
court's Findings are not supported by the writ record before
this Court. See. Ex parte Evans, 964 S.W.2d 643, 648 (Tex.Crim.
App.l998)("Although the findings indicate that documents ...
corr-obrat.e^Appl.ican.t.'.s allegations, our recordjioes not include
any such documents. The record is devoid of anp evidence..."
to support the trial court's findings.) Worse still, the convicting
court puportsto make a credibility determination about, trial
counsel; however, even if the convicting court were privy to !
confidential attorney-client communications between trial counsel
and other defendants, the advice given to other defendants does
1
not.support Findings on what advice counsel gave to Applicant.
See, Pension v. Ohio, 488 U.S. 75,.. .n. '(1988)(very real
concern that-counsel can just be lazy in one case is one reason
an Anders.brief is necessary). Applicant's OBJECTIONS to the
convicin^ court's Findings^f ollow :
1) Irrespective of what happen in.the juvenile court,
the convicing court did not have jurisdiction to enter
the Judgment of convictin in writ No. WR-82,141-03
because Section 8.07 of the Penal Code prevents prosecution
and conviction ofrany one under the age of 15 for a
second degree s&d&©iyYand on the date of this offense,
as recorded in the Judgment, Applicant was under the
age of 15. See, Ex parte Waggoner., 61 S.W.3d. 429,
431 (Tex.Crim.App.2001)
2) An 11.07 writ application seeks relief from a
final felony Judgment and, therefore, it is the date
of the offense recorded in the Judgment that matters;
which, requires that the law in effect on the date
of the offense, as recorded in the Judgment, to be
applied (and in 1994 Applicant did not have to object,
prior to trial, to problems with age restrictions). See,
Waggoner, 61 S.W.3d at 431 n.2.
3) The express findings set out on the face of the
juvenile court Order limited the transfer to conduct
that happen when Applicant was 16 years old; therefore,
inspite of any "on or about" language the juvenile
court never waived its exclusive jurisdiction over
conduct that happen on the date of the offenses, as
recorded in the Judgment, and the convicting court
did not have any jurisdiction to enter the Judgments
of conviction in Writ No(s). WR-82,141-03 and WR-82,14104.
See, Moon v. State, No. PD-1215-13 (Tex.Crim.App. -
December 10, 2014)(PUBLISHED)(insufficiency of the
evidence to be measured by the express.findings set'
out on the face of the juvenile court Order); Taylor v.
State, 332 S.W.3d 483, 491-492 (Tex.Grim.App.2011) ;.
(language in jury instruction could limit the "on or
about" dates the jury could consider to dates when
the defendant was over 18 years old.) .
4)v Applicant :wasvNOT required to cite law in the writ
application, rather law must be cited in the memorandum
of law, and in his memorandum of law Applicant did
cite to Richardson.v. State, 7.70 S.W.2d 797, 799 (Tex.
Crim.App.1989) which relies upon Section 54.02(g) of
the Family Code to prohibit the separate prosecution,
or rather the retroactive separation of a companion
case out of the underlying juvenile court order. See,
"Instruction" for 11.07 writ application form (rev.' 01/14/2014)
5) The statue, Penal Code 3.01, itself threatened •
stacked sentences of these two separatly indicted cases
and, regaurdless of any other promises, by pleading
guilty in exchange for 5 years deferred adjudication
probation, Applicant avoided.the threatened result.
6) There, is a fourth category, that creates ex post
facto laws, mainly laws that "permit conviction on
quantum of evidence, where that quantum, at the time
the new law was enacted, would have been legally insufficient"
^and under the statue of limitations in effect on the
date of these offense^ at the time of trial there would
-have—been-"insltf-M-ci-en-t--evidence~t-o-"
-SeeT'XafmeTr^v; Texas'; 12 0~~StC r: ~16 2©7" 16"40 (2 000 )-; —-
Phillips v. State, 362 S.W.3d 606, 610 (Tex.Crim.App.2011),
(acknowledging fourth category); See, also, ie., Lemell v.
State, 915 S.W.2d 486, "488 (Tex.Crim. App. 1995) (failure
to prove statue of limitaions dates results in reversial
for insufficient evidence).
1. Moreover, while the convicting court is allowed to use personal, recollection
to resolve disputed facts (under Article 11.07 § 3(d)) — that provision refers
to personal recollection about the case at hand NOT any general knowledge the
Judge might have, especially when there is nothing in the writ record before
this Court to support those findings. See, Evans,. 964 S.W.2d at 648.
7) Trial counsel's "answer" contains no facts relative
to the grounds raised in the writ application and,
thus, the convicting court's Findings concerning ineffecitve
assistance of counsel are not supportted by the record
before this Court. See,' Evans, 964 S.W.2d at 648;
See also, Perillo v. Johnson, 79 F.3d 441, 4.45, 451
(5th Cir 1996)(additional discovery and evidentiary
hearing were required, in part,, when counsel's affidavit
did not squarely address the relevant issues).
8) The convicing court made imporoper jumps in logic
in its Findings, to include:
a) Trail counsel's conduct in other cases
proves what knowledge of the law counsel
has -g-e-n-e-r-a-1-l-y--,—w-h-at—i-nv-e-s-t-i-ga-t-io-n—co-un-s el
"did"itr-t"h"e~s~e-case'syan'd"what— advice- counsel
gave to Applicant.
b) The fact that trial counsel discussed
some unspecified strategies with Applicant
proved that counsel actually discussed matters
of law that Applicant complains counsel did
not in the writ applications.
c) The fact that trial counsel was ready
to proceed to trial proves that counsel correctly
advised Applicant about the guilty plea.
d) The fact that Applicant choose to plea
guilty proves that trial counsel either did
not have to provide adequate advice about
the guilty plea or that counsel did provide
correct advice.
e) That just because Applicant was prescribed
anti-psychotic medications that it proves
trial counsel was aware of that fact^ and
that counsel investigated that fact#$ impact
upon Applicant's competency.
9) The convicting court never resolved numerous controverted
previously unresolved facts, to include:'
a) Was the complainant present and available
to testify on June 15, 2010? See, Applicant's
Exhibit "A" (Affidaivt of Debra Crespin).
b) Did trial counsel tell Applicant whether
the complainant was or was not available
to testify on June 15, 2010?
c) Did trial counsel advise Applicant that
the State could obtain a conviction without
the testimony of the complainant?
d) Did trial counsel advise Applicant that
the State could use the "out-cry" statement
against Applicaitvt (to obtain a conviction)?
e) Did trial counsel advise Applicant that
the State could use the recorded phone call
between Applicant and the complaintant to
either help convict him or at the sentencing
hearing to obtain a harsher sentence?
f) Regardless of what the plea papers state,
did trial counsel advise Applicant that the
defferred adjudication probation had severe
disadvantages that the 5 years in prison
plea bargain did not have?
g) Did trial counsel investigate at all
the problem with the dates between the juvenile
court Order and the indictments and did counsel
advise Applicant that if the State only proved
at trial the 1994 dates and the defense made
the State "elect" which dates it was seeking
a conviction for -- that there was a chance
to prevent the convietion(s), or at least
to prevent a stacked sentence.
h) Was trial counsel aware that Applicant
had mental helth problems and was taking
prescribed anti-p.sychotic medication AND
did trial counsel perform any investigation
into Applicant's competency?
10) The police believed that Applicant's demeanour
during the recorded phone call between Applicant^and
the complainant was incriminating and the recording
could have been used at sentencing; .therefore, the
recording should have been supressed when Applicant
had invoked his right to counsel and, thereafter,
never waived his right to counsel. See, Rhode Island v.
Innis, 100 S. Ct. 1682, 1689 (1980)(anytype of incrimination
is suffienct to require suppression).
11) No where does Applicant claim that the registration
requirment was an ex post facto violation; rather,
at all times,, beeuase Applicant was under the age of
17 on "the date of the offenses., Applicant was only
required by law to register once a year -- never every
90 days -- and the appeal was affirmed soley upon the
failure to register.. every 90 days (the amendment of
the statute of limitaions was a separate error of counsel)
AND, insufficient, or no evidence, claims may be raised
for the first time on appeal. See, Tex.Code. Crim.
Pore, art. 62.001(6) and 62.058.
12) Yet, the convictingc;:crourt failed to aquire a response
from revocation counsel or revocation appellate counsel.
Thus, not.only are the convicting court's Findings not supported
by the record, they continually misconstrue Applicant's grounds
forvreliefrand:the applicable law. This Court should not have
denied relief based upon the Convicting court's Findings. Indeed,
it would be a denial of DUE PROCESS to deny relief based upon
such poor Findings. See ie., "Eownsend v. Sain, 83 S. Ct. 745
(1963) (state habeas court must provide full and fair opportunity
to develope facts and have the factual basis of calims considered),
overruled in part on other grounds, Keeney v. Tamayo-Reyes, 112 S. Ct.
1715 (1992)(n.5 still requires full factual develope in state court
proceedings), Ex parte Young, 418 S.W.2d 824 (Tex.Grim.App.1967)
(same); See also, (Michael) Williams v. Taylor, 120 S. Ct. 1479 (2000).
DISCUSSION OF ONLY TWO OBJECTIONS
Rather than represent arguements on each and every one of
Applicant's OBJECTIONS, Applicant will ;focus on the convicting
court's lack of jurisdiction to enter the Judgments and that
the writ record before this Court does not support the convicting
court's Findings. (Applicant has filed numerous pleadings addressing
the content of the OBJECTION^ to include, a REPLY to the State's
Response, A REPLY to this Court's Order of 12/17/2014, a Motion
to STRIKE Trial Counsel's Response, and, of course, the original
memorandum of law.)
JURISDICTION TO ENTER JUDGMENTS
The convicting court's Findings appear to conclude that
because the "proper" date for the offenses are in September 1996,
when Applicant was 16 years old, that these is nothing wrong
with these convictions. It is correct that it will be important
to focus on the conduct when Applicant was 16 years old. However,
the Findings (or conlcusions) overlook that it is the date in
the Judgment(s) that will determine if these convictions are
improper. Especially, when the only evidence to support the
Judgments are the judical confessions that admit to offenses
in Septmber 1994 (over which the convicting court had no jurisdiction)
Applicant is entitled to RELIEF.
Date In Judgments Matter
An 11.07 writ application seeks relief from a final felony
judgment. See, Tex. Code Crim. Proc, art. 11.07 § 1. The Judgments
in these cases record the dates of the offenses, as .required
by law, as September 1994. See, Tex. Code Crim. Proc, art.
42.01 §1(14). The only eviednce introduced" at trial were the
judical confessions, and they admit to the offenses happening
in September -1-9-94-. Thus ,~ the dates, -that, mater in thes.e cas.es — ..
2
are the dates in the Judgment. At this point, the dates in the
juvenile court order and the indictment are immaterial.
Date in Judgments = Applicable Law
The law is already establishes by this Court that for offense^
that happen in 1994, there is no requirment to object to a district
court's lack of jurisdiction based upon age-related reasons.
See, Waggoner, 61 S.W.3d 431 n. 2. Thus, this Court, and the
^oncivting court, were incorrect to consider whether Applicant
objected under Article 4.18(b)(1). That statue does not apply
to these Judgment that Applicant is seeking relief from.
Judgment in WR-82,141-03 is VOID
Moreover, no matter what happen in juvenile court, the convicting
court had no jurisdiction to convict Applicant of an offense
that happen when he was under 15 years of age. See, Tex. Penal
Code § 8.07; See also, Acts 1975, 64th Leg, p. 2158, ch. 693.
Thus, this Court's own case law establishes, that the Judgment
in Writ No. WR-82,141-03 is VOID. See, Waggoner, 61.S.W.3d at 431.
Did "White Card" Overrule Waggoner?
This Court should not summarly overrule Waggoner, this Court's
established precedent, with a "white card" denied without written
order.
Application of Legal Theories = WR-82.,141-04 VOID
Thus, established precedent requires reflief from the Judgment
in WR-82,141-03. Yet, it does take some application of leagal
theories to determine that the Judgment in WR-82,141-04 is VOID.
There are several legal theories under which to determine that
this Judgment is VOID (which have been discussed in privious
pleadings); but, only one legal theory will be.addressed here.
Moon v. State = Face of Juvenile Court Order Matters
Just recently, this Court has held that the express findings
set out on the face of the juvenile court's Order are controlling.
See, Moon, PD-1253-13 (applying Family Code § 54.02(h)). The
face of the juvenile court's Order in these cases expressly set
out that the juvenile court was only transfering conduct that
happen when Applicant was 16 years old and that happen on or
3
about September 1, 1996.
Conduct Not Person Transfered
While it is true.that an indictment, and conviction, following
a transfer from the juvenile court may be based upon any conduct
that the juvenile court transfered -- it is only conduct, not
a person, that is transfered. See, Livar v. State, 929 S.W.2d 573,
574 (Tex.App. - Ft. Worth 1996)(following Ex parte Allen,
618 S.W.2d 357, 361 (Tex.Crim.App.1981(Op. on reh'g). Thus,
2. See, Ruiz v. State, 499 S.W.2d 299 (Tex.Crim.App.1973)(under prior version
of Article 42.01 the date of the offense did not matter unless it reflected the
conviction was barred by statute of liomitaion AND AS LONG AS THE DATE WAS IN
AGEEMENT WITH THE JUDICAL CONFESSION).. It could be argued that under the present
version of Article 42.01 the date of offense does matter and espcially when it
is necceassary to determine the applicable law and other material matters AND
that the date in the Judgement must match the JUDICAL CONFESSION.
the express findings set out on the-faee of the juvenile court's
Order work as limiting language that limits the conduct that
is transfered. See, Taylor, 332 S.W.3d at 491-492. Therefore,
inspite of any "on or about" language in either the juvenile
court's order or the indic^imrt -- the only conduct the convicting
court had jurisdiction over was from when Applicant was 16 years
old. Id. The juvenile court never waived its exclusive jurisdiction
over any conduct that happen in September 1994 (the dates in
the Judgments and Judical Confessions). Therefore, the Judgewfrt
in Writ No. WR-82,141-04 for an offense that happen on Septmeber 1,
1994 is VOID (as well as the Judg&wrrt in WR-82,1.41(B). Applicant
is entitfiled to RELIEF.
FINDINGS UNSUPPORTED BY' THE RECORD I.
Is there any doubt that even when the state does not have
to offer any post-convction relief, that once the state chooses
to offer post- conviction relief procedures applicant's are entitled
to DUE PROCESS in using those procedures? Applicant has not;i>©e^
^ afforded DUE PROCESS when the trial court continualy misconstrued
his grounds for relief and failed to allow Applicant an opportunity
to gather additional evidence to support his grounds for relief.
For instance, this Court had priorly determined that Applicant's
grounds that revocation and revocatior\fiappellate counsel were
ineffective to fail to object to the revocation of probation abased
upon the sex offender registration requirments "if true, might
entitle him to relief." See, CCA Order in WR-82,141-03 (12/17/2014).
Yet, when the convicting court's Findings misconstued that ground
as some type of complaint about an ex post facto law, this Court
did not revisit its original determination that there was a vaild
-VVvose
calim made in that grounds*
No Facts in Trial Counsel's "Answer"
The simple fact is that trial counsel's "answer", that is
devoid of any supporting facts, can not support any Findings
of Fact. See, Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.
2008)(no deference to findings and conclusions that are not supportted
by the record). The only "fact" in trial counsel's "answer"
is that counsel "was able to secure -[Applicant] a five year probation
which he quickly violated." (emphasis added). This fact only
serves to affirm, not refute, Applicant's grounds. Applicant's
most basic complainant is that trial counsel was so pleased with
himself at securing the most lenient, plea bargain allowed by
law, that counsel did not fall the need to explain to Applicant
little things like the differences between regular "probation"
and deferred adjudication probation. In short, counsel's
response, shows that, once again, this ease is not impo_-ant enough
to merit his precious time to explain the relevant facts and
law. How on earth such an "answer" from counsel can support
the Findings is lost upon Applicant.
Not About Credibility
All the convicing court did was. find that trial counsel
was creditable. Okay, great. But, what facts did counsel diclose
that were creditable? Only the one.-- that he secured the most
3. The juvenile court's Order limits the conduct in WR-82,141-03 to exactly
happening on September 1, 1996 (not "on or about").
4. The record also does not support the convicting court's'finding that,the
plea papers explained that if Applicant was placed on deferred adjudication
probation he could be sentenced anywhere within the applicable range. First, at
the time of the plea Applicant did NOT know the correct termilogy. And what the
plea papers actually say is that Applicant was pleaing to "Deferred community
supervision for 5 years" and if "unadjudicated community supervision" were violated
he could be sentenced anywhere within the range. NEVER DO THE PLEA PAPERS
COMBINE THE TERMS "DEFERRED" and "UNADJUDICATED". Thus, Applicant did not
understand, from the plea papers, that the "probation" he was agreeing to
could result in a LIFE sentece if revoked. ; . -,nnow , . ,.
5. See, Ex parte Imoudou, 234 S.W.3d 866, 871 n.4 (Tex.Grim.App.1992)(a lenient
sentece does not refute ineffective assistance), Ex parte Langley, 833 S.W.2dl41,
144 (Tex.Crim.App.1992).(same).
lenient plea bargain allowed by law. Thus, the resolution of
these cases is NOT about credibility. It is about the lack of
facts to support any Findings made by the convicting court.
Sure, there are some facts disclosed by the trial record.
But, it is those exact proceedings that Applicant has.raised
as being Consitutinally infrim. Meaning, whatever, was said on
the record and in open court is NOT inline with the previously
unknown, and confidential, communications between Applicant and
trial counsel. Thus, the trial record does not resolve the disputed
facts -- it only makes the facts disputed. It is' the convicif^
court's duty to gather additonal. facts to resolve the disputed
facts.Townsend, 83 S. Ct. at 757.
CONCLUSION
And, that is just what this Court has already had to Order
the convicting court to do' -- gather additional.facts. Yet, \
trial counsel's "answer" is not sufficient additonal facts to
resolve the controverted, previously unresolved facts material
to the legality of Applicant's confinement. Thus, the writ record
doeSnot support the Findings made by the convicting court. This
Court should reject the Findings of Fact and Conclusions of Law,
and rather than deny relief, ORDER the conviciting court to gather
additonal facts to resolve the disputed facts (ex. was the complainant
present at court and available to testify on June 15, 2012).
The failure to do so is a denial of DUE PROCESS (for which the
federal courts may. resolve).
PRAYER
Thus, Applicant, Jeremy Crespin, asks for this Court's LEAVE
to suggest that this Court, on its own intiative, RECONSIDER
the denial of relief, based upon the convicting court's Findings
of Fact and Conclusions of Law WITHOUT A HEARING, :in both Writ No(s).
WR-82,141-03 and WR-82,141-04; AND, ANY AND ALL OTHER RELIEF THIS
COURT FINDS PROPER IN THE INTEREST OF JUSTICE.
Respectfully Submitted,
Jeremy-'Crespin )
TDCJ No. 1807429
Hughes Unit
Rt. 2, Box 4400
•Gatesville, TX 76597
APPLICANT PRO SE
VERIFICATION / CERTIFICATE OF SERVICE
I, Jeremy Crespin, TDCJ Id No. 1807429, being presently
incarcerated in the Hughes Unit of TDCJ-CID, in Coryell County,
Texas, do declare under the penalty of perjury that the^facts
inthis motion for leave are true and correct and that I have
caused a copy of this motion to be served on the Dallas^County
District Attorney on the date executeAbelow by placing it into
the prisonmail system to mailed 1st class USPS.
EXECUTED on this the Aft day: of Pi ,\q/Way^\ , 2015.
Jeremy Crespin A
Applicant PRO S:©