Gonzales, Sergio Daniel ( 2015 )

WR-62,485-03
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/12/2015 11:33:08 AM
Accepted 6/12/2015 11:42:21 AM
ABEL ACOSTA
CLERK
CAUSE NUMBER WR-62,48S-03
RECEIVED
COURT OF CRIMINAL APPEALS
6/12/2015
IN THE ABEL ACOSTA, CLERK
COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
EX PARTE
SERGIO DANIEL GONZALES,
Applicant
FROM THE 197th DISTRICT COURT
OF CAMERON COUNTY, TEXAS
TRIAL COURT CASE NUMBER 03-CR-278-C
STATE'S SUGGESTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW RESPONDENT, THE STATE OF TEXAS, by and
through the Honorable Luis V. Saenz, the Cameron County District Attorney,
and files this Suggestion for Rehearing of Applicant's Application for Writ of
Habeas Corpus, and in support thereof, would respectfully show this
Honorable Court as follows:
State's Suggestion for Rehearing Page 1
I. STATEMENT OF THE CASE
This proceeding involves a Third Application for Writ of Habeas Corpus
filed by Respondent, SERGIO DANIEL GONZALES, seeking relief from a
judgment of conviction, and sentence, in cause number 03-CR-278-C, out of
the 197th District Court of Cameron County, Texas. Said Application was
dismissed by this Court on September 17, 2014.
II. BASIS FOR SUGGESTION FOR RECONSIDERATION
In Ex Parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008), Presiding
Judge Keller set forth, in her concurring opinion, the elements which must be
present in order for this Court to reconsider an application for writ of habeas
corpus:
Reconsidering an application for writ of habeas corpus after a
significant passage of time should be a rare event, and should not
become a means of circumventing the statutes [concerning
subsequent writ applications]. At a minimum, two conditions
should be present. First, the reconsideration must indeed involve
a claim that was originally raised in the application. Second, an
indisputable mistake of fact or law that the reconsideration seeks
to rectify must have been made by this Court.
fd. at 431 (Keller, PJ., concurring).
In accordance with the above stated conditions, the State respectfully
suggests that the claims originally raised in Applicant's Third Application for
State's Suggestion for Rehearing Page 2
Writ of Habeas Corpus (dismissed by this Court on September 17, 2014)
should be reconsidered by this Court, because a mistake of fact has been
made herein. The allegations supporting the State's suggestion are as
follows:
(A) This Court dismissed Applicant's Third Application for Writ of
Habeas Corpus herein, stating that Applicant's sentence has been discharged.
(8) The undersigned counsel for the State has determined, through a
review of T.D.C,J. records and conversation with counsel for T.D.C,J., that
Applicant's sentence in Trial Court Cause Number 03-CR-278-C has not been
discharged. In support of this statement of fact, the State attaches hereto
an affidavit from the Program Supervisor for the T.D.C,J. Classifications and
Records Department. Specifically, Trial Court records reflect that, on
November 29, 2005, Applicant's sentence in 03-CR-278-C was imposed and
ordered to run consecutive to an earlier imposed sentence in 04-CR-1586-C.
In cause number 04-CR-1586-C, Applicant was sentenced on three different
counts to a term of confinement for 50 years, 25 years and two years.
Accordingly, Applicant has not yet discharged his sentence in 04-CR-1586-C;
and therefore, Applicant has not even begun to serve his sentence in cause
State's Suggestion for Rehearing Page 3
number 03-CR-278-C. Because Applicant has not yet begun to serve his
sentence in 03-CR-278-C, the State suggests that it was a mistake of fact for
this Court to dismiss Applicant's Third Application for Writ of Habeas Corpus,
stating that the sentence has been discharged.
(C) Accordingly, the State requests, and suggests that it would be
proper, that this Court reconsider this matter, and that Applicant's Application,
the State's answer, and the Trial Court's findings and recommendation all be
considered by this Court. The State further requests and suggests that upon
reconsideration, that the relief requested in Applicant's Third Application for
Writ of Habeas Corpus should be DENIED.
(D) The reason for the filing of this suggestion by the State is that the
undersigned counsel's duty, as prosecutor, is to see that justice is done. Tex.
Code Crim. Proc. art. 2.01. Additionally, the State believes that a
consideration and adjudication of the merits of Applicant's Third Application
for Writ of Habeas Corpus would benefit the parties herein in subsequent
post-conViction proceedings.
State's Suggestion for Rehearing Page 4
CONCLUSION &. PRAYER
Therefore, based on the above, RESPONDENT, the State of Texas,
requests, and suggests that it would be proper, that this Court reconsider this
matter, and that Applicant's Application, the State's answer, and the Trial
Court's findings and recommendation all be considered by this Court. The
State further requests and suggests that upon reconsideration, that the relief
requested in Applicant's Third Application for Writ of Habeas Corpus be
DENIED.
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, Fourth Floor
Brownsville, Texas 78520-7123
Phone: (956) 544-0849
Fax: (956) 544-0869
By: Is/Rene B. Gonzalez
Rene B. Gonzalez
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Attorneys for the State of Texas
State's Suggestion for Rehearing Page 5
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State's Suggestion for Rehearing
was mailed to Sergio Daniel Gonzalez # 01342241, TDO - Wynne Unit, 810
FM 2821, Huntsville, Texas 77349 on the 12th day of June, 2015.
/s/ Rene B. Gonzalez
Rene B. Gonzalez
State's Suggestion for Rehearing Page 6
AFFIDAVIT OF CHARLEY VALDEZ
STATE OF TEXAS
COUNTY OF WALKER
BEfORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day
personally appeared Charley Valdez, who, after duly sworn. deposes as follows:
"My name 1s Charley Valdez. I am over twenty-one years of age, of sound mind; capable of
making this affidavit; and personally IlCquainted with the facts herein stated.
I am employed as Program Supervisor III for the Classltkation and Records Department
("eRn") of the Texas DElpartment of Criminal Justice-Correctional Institut!ons Division, and my
office is located in Huntsville, Texas. I have reviewed time records kept the eRD
Offender Sergio Daniel VIJ'II,,"U""e.., TDCJ II 1342241. eRD maintains these records in the regulIiT
course of business of every offender confined; and it was the regular course of business for an
",.... ,,'A'''''' or representative to TDCJ-CID With knowledge of the act, event, condition, opinion or
diagnoses, recorded to make the record or to transmit information thereof to be reasonably soon
thereafter. Based on my review of these records, the following table contains the current sentence
infonnation for Gonzalez
6£E:l9£62~sr6: 01
Gonza)ez t Sergio Daniel TDCJ# 1342241
2
il3..(;R·278·C 5-3-2054 wilh
ConsoX14lv8 to CIluse IO-)'e;m il c23·2002 11·29·2005 469-di1:1'~ of )·20-2063
1# 04-CR·I:5S6·C pre'5~nUmCtl
Coonl2
0·3-2004 ! O·15·200S I J()-;)-~!OO4 10·3·20211
469-dIIyS of
pte,seolcncc
'ilil aredit
Offender Gonzalez was re<:eived into TOC) custody on 1-11-2006 from Cameron County. Offender
Gonzalez wss convicted by the 197t~ District Court for the fol lowing:
j> Assault Public Servant, under CBuse number 04-CR-!SS6-C (colillt-2), and sentenced to
Gonzalez was COI1ViCtf'A for this offense occurring on 10-3-2004, with
sentenoing on ] 0-15-2005, and sentence to On 10-3·2004.
,.. Aggravated Assault Public Servant, under cause number and sentenced to IO-years,
Offender Gonzalez was convicted for this offense occurring on 8-23-2002, with sentencing On
I 1-2:9-2005, With sentence to run consecutive to cause number 04-CR-1 SS6-C, with 469-days of
pre~sentence jail credit.
)- Aggravated Assault Public under cause number 04·CR-1586-C (count-}), and sentenced to
Offender Gontalez was convicted for this offel)se occurring on 10-3-2004, with
sentencing on 10·15-2005, and sentence to begin On 10·)-2004.
,l;> Assault Public Servant, under cause number 03-CR-278-C, and sentenced to IO-years.
Gonzalez was convicted for this offense occurring Of! with sentencing on
with sentence ro run consecutive to ¢IlU$e number 04-CR-1586-C, with of
pre-sentence jail credit
When an has consecutive sentences, the second sentence will begin when the first sentence ceases to
A sentence "ceases to when it is served out in full day-far-day Or on the date a parole
tlp"i<:ttH.tJ'" as the date the offender would have been released to parole but for the second sentence, Texas
GovemmentCoae § S08.150(b), Cowan, 171 S.WJd 890 (Tex. Crim. App. 2005), Kue.ster,
21 S.W.3d 264 (Tex, Cr. App. 2000).
Offender Gonzalez's time was adjusted on 6-3-2015 to reflect that he is consecutive sentences and not
concurrent sentences.
This office has not received any Time Dispute Resolution Forms from Gonzalez,
:WQJ.:/ 6S:£j: Sj:02-H-Nnr
Gonzalez, Sergio Damel rOCJ# 1342241
Pagel
Classification aad Records
Tens Department of Criminal Justice
Correctional II'I!!tirutions Division
SUBSCRIBED At'll> SWORN TO before me, the said Notary Public on thls the 11th of
June, 20i 5, [0 certifY which witness my hand and seal of office.
Notary Public In and For
The State of TexAS