Madrid, Armando

§ f _ 7@,6(03?#03 july 9, 2015 , Armando Madrid 1425800 * ` l James A. Lynaugh Unit 1098 S. Highway 2037 _ Fort Stockton, Texas 79735 Honorable Abel Acosta, Clerk Texas Court of Criminal Appeals Pl O. Box 12508, Capitol Station Austin, Texas 78711-2508 Re: Objections to Habeas Court's Findings of Fact and Conclusions of Law, pursuant . to Tex» R. App. Proc. 73.4(b)(2). Dear Clerk: _ Enclosed please find Applicant's Objections as stated above as well as the following items which the trial court may not have forwarded you or may not forward you. Please put these items in the habeas record for the Court's consideration. ' Your assistance in this matter is greatly appreciated. Sincerely, A mando Madrid Applicant Pro Se cc: file RECE|VED iN coum oF comm APPEALS JUL 13 2615 AbelACOS?a,C|Srk No. WR-79,062-O3 Cause No; 4079-A EX PARTE d § IN THE DISTRICT COURT' n § 109TH JUDICIAL DISTRICT ARMANDO MADRID § ANDREWS COUNTY, TEXAS ' COURT OF CR|M|NAL AFPEALS APPLICANT S OBJECTIONS TO THE HABEAS COURT:S JUL. 1 3 2015 FINDlNGS OF FACT AND CONCLUSIONS OF LAW , Ab@lé©@§?a,@€@i‘§< TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Armando Madrid, Applicant, pro se, by and through Petitioner, David Lightfoot Hernandez, pro se, hereinafter styled: '"Petitioner," and respectfully files these objections to the habeas court's findings of fact and conclusions of law, and would respectfully show the Honorable Court the following: , . 1 . k yBACKGROUND 1. On March 24, 2015, Applicant, Armando Madrid, hereinafter Styled: "Applicant," mail-filed his Art. 11.07 writ application to the Clerk of the 109th Judicial District Court of Andrews County, Texas, along with Memorandum of Law in Support and Affidavit of Fact in support, to include Criminal Docket of Cause No. 4079; Indictment in Cause No. 4709; and Judgment of Plea of Guilty in Cause No. 4079. 2. The 109th District Court forwarded Applicant's writ application to the Court of Criminal Appeals without making any findings of fact nor conclusions of law and the Court of Criminal Appeals pursuant to an Order filed on June 8, 2015, ordered the trial court to make findings of fact and conclusions of law, hold an evidentiary hearing, obtain affidavit£s) from trial counsel explaining his trial strategy, or do whatever else is necessary to resolve all l controverted facts at issue in this habeas action. 3. Applicant received the Findings of Fact and Conclusions of l-Objections Law on July 3, 2015, from the Lynaugh Unit Mailroom personnel. Pursuant to Rule 73§4(b)(2), Tex. R. App. Proc., these objections are timely if mailed or filed with the District Clerk of the 109th Judicial District Court of Andrews County, Texas by July 13, 2015. ' IL. GENERAL OBJECTIONS 4. v Applicant's habeas corpus application states facts which, if true, would entitle him to relief. Applicant would show that the habeas court's findings of fact and conclusions of law are not based on live testimony taken at an evidentiary hearing, despite disputed fact issues which were more appropriately resolved through such a forum, especially given the time under consideration. 5. Any findings made without a live evidentiary hearing necessarily requires credibility determinations made upon evidence taken without confrontation and/or cross examination and without judicial observation attendant to that choice. Credibility choices made without live examination but, instead upon prior judicial or legal relationships, acts to insulate those, who routinely practice before the trial court and create a non-level playing field. lt is for this reason that the credibility choices, and all findings and conclusions which rest, even in part, upon such flawed credibility choices, must be re-examined, ln that the entirety of the findings entered by this Court, except for those factual findings supported by the record, rest upon the credibility choices made without resort to live evidence, or even an affidavit from trial counsel, and Applicant objects generally to all. 6. All findings of fact and conclusions of law rely on facts which elude the main issue, that being trial counsel's failure to invoke the affirmative defense of statute of limitations in a case which Obviously was over two years beyond said statute of limitations. No affidavit from trial counsel was produced because trial counsel is suddenly a victim of selective Alzheimer's and allegedly the transcripts of the case can't be found. This is a case involving an issue of time not testimony or other evidence contained in any record of the Court save the charging instrument and arrest record. These records, the Court alleges are available from the Court. Z-Objections -III. SPECIFIC OBJECTIONS Findings Related to the Courtfs Contentions 7. Applicant objects to Findings of Fact at lll of the Statels Findings of Fact and Conclusions of Law, where the State contends that "Cause No. §lii, was indicted as a Third Degree Felony and CausehNo. §Zéi, was indicted as a Second Degree Felony." lt was either one or the other, but not both. 8. Applicant agrees with the State that Cause No. 3744 was never prosecuted and that the District Attorney dismissed Cause No. 3744 On or about July 1, 2002. Dismissal was filed into record on July 3, 2002 and there are no court records to indicate any activity in this matter until it was dismissed on or about July 1, 2002. 9. What Applicant would like this Court and the Court of Criminal Appeals to take Judicial Notice of is lndictment in Cause No. 4079 which was generated from the same arrest and/or "events" ;as were originally cited in the indicted Cause No. 37444 (See State's Findings of Fact and Conclusions of Law at lll), contains an Enhancement Paragraph which clearly states: "And it further presented in and to said court that, prior to the commission of the aforesaid_ offense, on the 25th day of June, 1996, in Gause'No. 3744, in the 109th Judicial District Court of Andrews County, Texas the defendant was convicted of_the felony offense of Driving While Intoxicated; against the peace and dignity of the State;" 10. Surely the Court`can see the problem here! The Cause No. 3744, which the District Attorney dismissed on or about July l, 2002, was Used to enhance Applicant's charge(s) in Cause No. 4079. This is a fundamental defect, as Applicant was convicted of a Second Degree Felony Driving While lntoxicated charge relying on a void dismissed charge to enhance Applicant's charge(s). (See lndictment in» Cause No, 4079, attached). 11. The State correctly cites that Applicant was originally indicted under Cause No. 3744, for an alleged crime committed on or ' about October 25, 1998. Driving While lntoxicated as a crime has a three (3) year statute of limitations. See Art. 12.01 TCCP. 3-Objections 12. The State has until October 24, 2001 to convict Applicant of the crime for which he was arrested and charged, or even if going by the indictment date, November 11, 2001, or Applicant could lawfully invoke the affirmative defense of statute of limitations bar. 13. Trial counsel, the Honorable Michael McLeaish, should have had a full command of the facts and the law to know that advising his client, the Applicant, to enter into a 5-year plea bargain, over 2 years after the statute of limitations in this case had run out is just ludicrous and cannot be deemed as sound trial strategy. Thereiis no reasonable explanation that trial counsel can come up with to explain away his selling out of the Applicant to the State or "attorningv of the Applicant to the State when Applicant could have simply walked due to the State's failure to prosecute»the case before October 24, 2001 or even November ll, 2001. 14. To add insult to injury, trial counsel didnit even catch the gross error of allowing Applicant to enter a plea of guilty to an Indictment that contained a void enhancement, as Cause No. 3744, had been dismissed by the prosecution on or about July'l, 2002. 15. `The State may claim that Applicant "voluntarily" entered a plea of guilty in Cause No. 4079, but the fact remains that trial counsel should not have even allowed for Applicant to enter any plea of guilt when he knew or should have known the statute of limitations had run out on Cause No. 4079. But for trial counsel's unprofessional errors, there is a reasonable probability the outcome of the proceeding would have been different. 1 16. How the Court can stand in the-midst of such clear and convincing evidence of ineffective assistance of trial counsel and even defend said attorney shows the lack of respect to the @athnof Affirmation taken by trial officials as they have sworn to God! 17. As for the claim that trial counsel is an attorney with many years of experience in criminal law, this, in and of itself, ought to be sufficient to damn said attorney for failing or refusing to protect the rights of his client and present every viable defense under the law to ensure his client gets the best defense possible. 18. To simply raise;the claim that attorney McLeaish has no res collection of this case and has no records that may refresh his memory, a simple calendar would suffice. Surely this attorney can 4-Objections count to 5! Once the statute of limitations of three`(3) years passed and the case became ripe for affirmative defense of state ute of limitations bar, trial counsel had no business making any deal with the prosecutor concerning Applicantis case. The fact that allegedly no transcripts exist in this matter and no other records, other than court filed documents, the ONLY document the Court needs is the Findings of Fact and Conclusions of Law or the lndictment/Judgment on Plea of Guilty, which both show Date of Judgment January.7, 2003 and Date;Offense €ommitted October 25, 1998. A 25¢ Calendar is all one needs to see that trial counsel `Michael McLeaish needs to have his license suspended if not revoked! See Findings of Fact and Conclusions of Law at lV and Vll. 19. On January 7, 2003, the State did confer upon the Applicant the benefits of a plea bargain, which.the State knew was being made to someone who is not well-versed in law, and the/State relied on trial counsel to attorn the Applicant despite the statute of limitations in this case had expired some 2 years and 2 months before Applicant stood before the trial;court to accept this plea bargainuof five (5) Years being promised to have his truck returned to him, which the City had impounded in 1998, and a promise to give him 297 days of jail-time credits toward that 5-year plea deal. 20. At.lX, the State tries to justify the unjust act of making a plea deal with the Applicant despite the expiration of the statute Of limitations by claiming that once a defendant accepts an agreement, he can not;then complain when the court complies with his request, citing State vt Yount, 854 S.W.Zd 6, 9 (Tex.Crim-App. 1991); Ex parte Shoe, 137 S.W.3d 100 (Tex.CrimtApp. 2004). No agreement can be binding when fraud and/or violations of constitutional rights occur. The State's silence regarding the statute of limitations bar is acquiescence to fraud upon the Court. Whatever happened to Art. 2.01 TCCP, which commands prosecutors not to secrete witnesses or other evidence by suppressing facts capable of establishing the innocence of the accused? 21. Finally, at X, the State attempts to invokesthe affirmative defense of the Doctrine of Laches, stating that the State will be prejudiced by petitionerls twelve year delay in filing the petition, and petitioner has not acted with reasonable diligence. S-Objections 22. First of all, Ex parte Carrio, 992 S.W.Zd 166, 168 (Tex.Crim. App. 1999) does not exist! Secondly, laches is an equitable doctrine and cannot be used to reward inequitable conduct nor to defeat justice. Hooks v. Brown, 348 S.W.2d 104 , ref, n.r.e. (Tex. Civ.App.-Austin 1961). "Defense of laches may be invoked only when enforcement of right asserted would work injustice," -Magnolia Petroleum Co. V. Railroad Commission.of Texas§ 90 S.W.Zd 659, modified 96 S.W.Zd 273, 128 Tex. 189 (Tex.Civ.App.-Amarillo 1936)3 23. The burden is on the party raising the defense of laches to Show that Applicant's delay works disadvantage to another which changes the original position and creates a condition which cannot be returned to its former state. This case has nothing to do with witnesses, testimony, evidence, tangible or otherwise, transcripts, Or any other thing other than "TIMEV\to support Applicant's contention that trial counsel was ineffective in allowing for him to plea guilty to an offense which was "dead" and could have been dismissed through invocation of the affirmative defensesof statute of limitations bar. Any claim that the State suffered or is going to suffer prejudice for Applicant's delay in filing this writ app-' lication cannot be sustained when nothing has been lost due to the time delay. Trial counsel's selective Alzheimerfs does in no way affect "TIME" as a continuum and therefore any claim by the State that Applicant should be barred from presenting his claims before this_Court or the Court of Criminal Appeals is unpersuasive. IV. CONCLUSION, 24. Applicant alleges facts which if true, would entitle him to habeas corpus relief, he should have been provided with an opportunity to prove his allegations and an affidavit from trial counsel, in the very least, explaining his trial strategy in advising Applicant to take a 5-year plea deal over 2 years after the statute of limitations in the case had run out. The habeas court's findings Of fact and conclusions of law are not supported by facts or law, and only serve to demonstrate the need for an evidentiary hearing. 25. Applicant feels the issue of the statute of Limitations bar and trial counsel's ineffectiveness in failing to preserve it is 6-Objections trial counsel's ineffectiveness in failing to preserve it is clearly founded in the habeas record, despite trial counsel's lack of affidavit in support of his trial strategy. ` V. PRAYER WHEREFORE PREMISES CONSIDERED, Applicant, by and through Petitioner, David Lightfoot Hernandez, respectfully prays that the habeas court will withdraw its findings of fact, and instead find that Applicant has alleged facts and provided evidentiary support for those alleged facts and allegations, and that there exists no unresolved facts material the legality of applicant's confinement which need to be resolved, as Applicant has shown he is unlawfully restrained of his liberty due to trial counsel's ineffective assistance, and that Applicant is entitled to the habeas corpus relief he seeks. Respectfully Submitted, %MMA ,¢/M Armando Madrid #1425800 James.A. Lynaugh Unit 1098, South Hwy 2037 Ft. Stockton, Tx 79735 DECLARATION I, David Lightfoot Hernandez, Petitioner, being presently incarCerated at the James A. Lynaugh Unit and preparer or this foregoing Objections on behalf of Armando Madrid, Applicant, do hereby declare under penalty of perjury that the foregoing facts are true and correct. ,<?M:/,,w~ AM¢;?"` / _ David LigHthof Her dez 458230, James A. _naugh Unit 1098, South Hwy 2037 Fort Stockton, Tx 79735 ¢/M Az,;,¢¢a, ucc /»za-/ 7-Objections cERTIFIcATE oF sEvacE I, Armando Madrid, certify that a true and correct copy of the foregoing Objections was sent to the Honorable Martin B. Muncy, 109th Judicial Court Judge by placing the,same in a postage prepaid envelope and putting it in the U.S. Mail addressed as follows: Honorable Martin B. Muncy, District Court Judge 109th Judicial District Court of Andrews County, Texas `Andrews County Courthouse ` 201 N. Main Streetg Room 201 Andrews, Texas 79714 (432) 524-1419 FAX (432) 524-2272 away wait Armando Madrid Applicant Pro Se 8-Objections APPENDIX ITEM .' . ' l PAGE(s) 1. Affidavit of Fact of Armando Madrid . . . . . . . . l - 3 2. indictments in case NOS. 4715 and 4716. . . . . . . 1 - 2 3. Criminal Docket of Case No. 4709 (DWl, 3rd En, FZ). »1 - 2 4.' lndictment in Case No. 4709 (DWI, 3rd, Enhanced,FZ) 1 5. Judgment on Plea of Guilty, Case No. 4709 . . . . . 1_- 6 \ Appendix X-Objections sTATE oF TExAs ' _ § ‘V.`/> COUNTY OF PECOS ~§ AFFIDAVIT OF FACT OF ARMANDO»MADRID My name is Armando Madrid, 883 last 4 digits 4393; l am over 18 years of age and able to make this affidavit of fact based on personal knowledge of the facts stated herein. ` 11 l am currently incarcerated at the James A. Lynaugh Unit of the Texas Department of Criminal Justice, Correctional lnstitutionsDivision, TDCJ-ID, located at 1098 S. Highway 2037, Fort Stockton, Pecos County, Texas 79735. 2. l attest that on or about October 255 1998, at approximately '10:00 p.m., l was called on the phone by my cousin, Jorge, telling me to come pick him up at the Collision Bodyshop on Broadway Ave. in Andrews, Texas. c 3. l was parked on private property at that parking lot of the Collision Bodyshop near the back door. l was out of my truck waiting for my cousin to show up and suddenly a police officer arrived and asked me what l was doing and l told him l was waiting for my cousin. He then asked me if l had been drinking. l replied, "No." 4- l did tell the officer that l had taken some Nyquil because l had been sick with a cold. He made me do a field sobriety test by making me walk toe-to-toe and`then.he had me count from 1 to 100 and then count from 1 to 100 backwards. l have an injury on my left knee which makes it difficult for me to walk1 v _ 5. After l started counting from 100 to 1, l told him l couldn{t do it and doubted if he could. He told me to place my hands behind my back and l was arrested for driving while intoxicated. This Officer, nor anyone else saw me operate¢a motor vehicle in a public place and there was no evidence l was intoxicated to warrant my arrest for driving while intoxicated. 6. My truck was inventoried and impounded and l was taken to the police station. l was held there about 2 hours and they prepared to Affidavit of Fact; ' page 1 give me a breathilizer test, but the machine was broken. l was never administered a breathilizer test. The next morning l was taken before a magistrate by a jailer and bond was set at $3,000.00. l was allowed to call Dan Sullivan, a bailbondsman and he came to the jail to bond me out. After speaking with him l found out he was a lawyer also. He said if no one took my case he was willing to represent me on this DWI charge, but that l needed to come up with $2,000.00 up front, so he could get my file(s) from the D.A., John Poole. 7. After about 3 years, l was contacted by Dan Sullivan, my attorney, telling me l had to be in court, and 2 weeks passed by and~ _when l showed up in court they postponed the trial for six months. 8. After six months, my attorney Dan Sullivan sent me another letter telling me l had to be in court. Dan Sullivan wanted me to take a plea bargain of six (6) years. l told him l was not going to plead guilty and l fired him from my case. 9. The Honorable Judge James L. Rex, called me to the bench and told me that l had two weeks to find another attorney to defend me on the DWl case. 10. When l fired Dan Sullivan as my attorney he also got off my bond and about two months later l was arrested for bail-jumping. A new bond was set of $5,000.00 and l called my mother to help me pay for another lawyer, Michael McLeish, to represent me on the DWI charge, 11. Three days before we get ready to go to court he calls me and tells me to come to his office as he needs to speak to me about my case, and to be "sure to bring the rest of the attorney's fees due." 12. He told me we were going to jury trial so to go out and buy a good-looking suit because we were going to attack and establish a statute of limitations bar in this case, as 3 years had passed since the date of the offense and the time in which to file indictment and prosecute the'case. He asked what l thought about that and l told him l was okay with that, since he was my lawyer and knew what he was doing. l 13. On January 7, 2003, at about 9:00 a.m., we were getting ready to select a jury when l guess my attorney sold me out to D.A. John Poole, as l was called to speak with my attorney in a single visiting room and he told me that after speaking to the D.A. John Poole, and Judge James L. Rex, that they would give me 297 days credit jail-time Affidavit of Fact _ page 2 which l had spent in the county jail and also return my truck which had now been at the City lmpound Lot for nearly 5 years¢ 14. Attorney McLeish told me l only had ten (10) minutes to make up my mind. l decided, that since he was not going to help me get the case dismissed for lack of subject matter jurisdiction based on statute of limitations bar, that l would take my losses and handle this matter later. At the time l had no idea l was waiving any type of affirmative defense to statute of limitations bar. _Trial counsel should never have allowed such a defense to be waived or forfeited. l took the five (5) year plea deal offered met Further affiant sayeth not. Executed this QEZ day of March, 2015 in Fort §tockton, Pecos County, Texas. ` getaway MMM Armando Madrid 4 Affiant Pro Se DECLARATION Pursuant to Title 6 of the Texas Civil Practice and Remedies Code, §132.001, l, Armando Madrid, TDCJ-CID #1425800, being pre- sently incarcerated at the James A. Lynaugh Unit of TDCJ-CID, de- clare under penalty of perjury that the foregoing facts are true LLMM/ja /Y?WZ¢/a/. Armando Madrid and correct. Affidavit of Fact page 3 of 3 The State of Texas vs. Armando Madrid l Cause No. j{/Z/,j Date lndicted 74.:15;45’ Bond Amount ?JM Felony Charge: Indecencv with Child~ Sexual Contact 521.11 (al(l-l PC 36010001 F* Habitu`al Offender In the 109"‘ ]udicial District Court of Andrews County, Texas lN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized GRAND ]URY of Andrews County, Texas, presents in the District Court of Andrews County, Texas, that in Andrews County, Texas, Armando Madrid, hereinafter styled Defendant, heretofore on or about the 2““l day of ]uly, 2005,l did then and there with thezintent to arouse or_gratify the sexual desire of said defendant intentionally or knowingly engage in sexual contact with ME89 bv touching the genitals of ME89, a child younger than 17 years and not the spouse of the defendant COUNT TWO And the Grand ]urors aforesaid do further present in said Court that in said County and State, heretofore on or about the 2"d day of ]uly, 2005, did then and there with the intent to arouse or gratify the sexual desire of said defendant intentionally or knowingly engage in sexual contact with ME89 by touching the breast of ME89, a child younger than 17 years and not the spouse of the defendant And die Grand ]urun' aforesaid do further present that all the offenses alleged above arose out of the same criminal episode, _ ENHANCEMENT PARAGRAPHS And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafier styled the primary offense) on the 25"‘ day of June 1996, in cause np_n_ibet 3:264 in thej 09"‘ Judicial District Court of Andrews County, Texas, the defendant was convicted of the felony offense of Driving While Inioxicated third or inoi"e. . And it is further presented iri and to said Court that, prior to the commission of the primary offensc, and _ gaf n'r' '~» ~.., _./ ......,.. ,---~'~~z ~,,~..l.mu =~‘-`\ after the conviction in cause number 3264 was final the defendant )committed the felony offense of Driving ""“-»M.. ,..`.. » ..` . While Intoxicatcd third or more and was convicted on the 7‘h day ofJanuary, 2003, in cause number 4079 iii the 109‘h Judicial District Court of Andrews County, Texas. O`J`ll:i against the peace and dignity of the State. LU=l Hcl 23 lill`§llllZ Foreln‘ian of the Grand ]ui'y § § The State of Texas vs. Armando Madrid Cause No. `$/Z/d Date Indicted %=¢-A$’ Bond Amount ?QCVOO Felony Charge: Sexual Assault - Child §22.0ll(alf2l 11990002 F* Habitual Offender In the 109‘h judicial District Court of Andrews County, Texas 'IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized GRAND ]URY of Andrews County, Texas, presents in the District Court of Andrews County, Te)<as, that in Andrews County, FI`e)<as, Armando Madrid, hereinafter styled Defendant, heretofore on or about the 2'1d day of ]uly, 2005, did then and there intentionally or knowingly cause the penetration of the sexual organ of ME89, a child Who'was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's sexual organ; ENHANCEMENT PARAGRAPHS And it is further presented in and to said Court that prior to the commission of the aforesaid offense (hereafter styled the primary offense) :on the 25th day ofJune 1996 ii_i cause number 3264 in the' 109"‘ .ludicial‘ ' District Court of Andrews County, Texas, the defendant was convicted of the felony offense of Driving While . lntoxicated third or more. 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V’M~w 15 :;j ;€- The State of Texas vs. Md x _ z Cause No.‘ LlNlQ uaw Indicted la 1 314 §§ send Amoimc _§,;W__Qg_ " - Felony Charge: ' ` =__ 7 p_ ' 411 l_n the 109th Judicial Distn'ct Cotn't of Andrews County, ”_I`_-¢sx_as7 _ _ _ ` v IN THE NAME AND BY AU'I'HORI'I'Y OF __-_THE ST_.ATE OF 'I'EXAS: The duly organized GRAND JURY ofAndrem County, Texas,- presents inthe District Court of Andnews Coimt`y, Texas, that 111 Andrews Co\mty, Texas, Armando Madrid, hereinafter sty1ed Defendant, heretofom on orl_'about_ the 2_5_th day of October, l99;§'did then and there operate a motor vehicle m a public place wh1le the Defendant was mtoxicated, - \ Lna_niely by not having the normal use of the fendant’ s mental or physical iiiculnesby rem § 1112 introduction into thetDefendant’s body of alcohol a controlled subsmnce, a dmg, a dangerous drug, and a combination of two or more 01 ......... _.51'~¢'-- of 0 1001 more, Cause No. 2641, in a District Court of Ochiltrec County, Texas, on the 9"' day of hannan/1991 and m a County C01111 ofo¢hilire¢ county, T¢xas, on the 13'h day ofJanuary 1987,111 owe No 12299, " » ENH.ANCEMENT PARAGRAPH And it is fiirther presented 111 and to said court that, prior to the commission of the aforesaid offenseJ on _th_e _25 day o_f June, 1996, in Cause No. 3744 in the]lOQ”1 Judieial District Court of Andrews County Texas the defendant w_ . convicted of the felony offense of Driving While lntoxicated; ‘ l n l against the peace and` dignity of the State; ~ ~~9'-1_~;=_11111 12~‘1¢@~ 4Q1144/01110111121 0€4§10/§ 01101 5000/11510115 0§10111 F1011140Q711/D0,1‘F00010F 1401/1105 C_Ou"/`ff» 7EXQS 1111 711\<0110\1\©1'0_10112_ C011\01 0€/]111117/170/ /1/0/000/5 ap 751111&1/\101\/\113-70 006100§. 110111_§@11/0a 4077,,51. l. 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PO A'ITORNEY FOR_ DEFENDANT: Micha OFFENSE CONVICTED OF: Driving V PENAL CODE _§_M DEGREE: Second CHARGING INSTRUMENT: lndictmen PLEA: Guilty TERMS OF PLEA BARGAIN (IN DETA FINDINGS ON ENHANCEMENT: _tr_1_1 FINDINGS ON DEADLY WEAPON: PUNISHMENT & PLACE OF CONFINI ~ DATE SEN'I`ENCE IMPOSED: lanua;y DATE TO COMMENCE: M TIME CREDITED: Qnuar)/ 1], 1 CONCURRENT UNLES§ ******** vol 3(1 PAGE %?>0 DATE OFFENSE COMMITTED: [4079] IN THE 109TH JUDICIAL DLSTRICT COURT OF ANDREWS COUNTY, TEXAS PLEA OF GUILTY \TE OF ]UDGMENT lanua;y 7, 2003 OL el McLeaish Vhil€lnt____&<ifif§_i October 25 1998 t [L): five (5) years TDC and Court Costs E_. 01‘1€ §MENT: five (5) years TDC], ID 7l 2003 COSTS: $ ML _ »OTHERWISE SPECIFIED ********* .__LMLQ hi ’é'f§nélénf'.$?a'vfi>rffey` ‘I`hé ibt':jréy the*Defendant, a,rijcl~;fth_'eT Bef;h@mf'§ .: tder C;<>:u:t;,;a.nf`d;iéhél¢our ;¢¢izsér;teq gsth 'w;aiv ¢. "p'l_,'m_$hmj¢n'eanothde 911 the ~ 1 Thecontents of_. th§ plea agre _I_nen_ tbetW€€n the State andth'~°: Defendant, and " vi .-, `, ,the.naru:e*ahd_conséq.ugii¢¢s:@fsui:h a_`g`;€,eni!ehr';qhou;a»néf¢riaanr'¢ 'I'he factthat the Defendant wou guilty should the Court reject such agre ` the Defendant had entered a plea of Defendant at the hearing on the plea of ld be permitted to withdraw said plea of ement, in which event neither the fact that guilty nor any statements made by the guilty could be used against the Defendant on the issue of guilt or punishment in any subsequent criminal proceedings,' The fact that if the punishment as punishment recommended by the pros¢ the Defendant's attorney, the trial Court before the Defendant may prosecute an matters raised by written motion filed y The fact that if the Defendant is n¢ a plea of guilty or nolo contendere for th§ the exclusion from admission to this cor federal law. And before accepting said plea, it so found and does now so find: That the Defendant at the time of consult with Defendant's attorney i understanding, and had a rational as we sessecl by the Court should not exceed the ecutor and agreed to by the Defendant and must give its permission to the Defendant appeal on any matter in the case except for »rior to trial; and l )t a citizen of the United States of America, offense charged may result in ,deportation, lntry, or the denial of naturalization under appeared to the Court, and the Court then the trial had a sufficient present ability to ¢vith a reasonable degree of rational ll as factual understanding of the proceed- ings against~the Defendant, who was in all respects mentally competent to stand trial; y § That the Defendant was fully aware of the consequences of said plea of guilty; That the Defendant was fully aware of the Defendant's right to a jury trial, the right to confront and cross-examine thle State's witnesses, the right to subpoena witnesses, the right against self-incrimination, and the right to require that the State prove the Defendant's guilt beyond a reasonable doubt as a prerequisite to the Defendant's conviction, all of which rights the Defendant voluntarily, knowingly and intelligently waive`d; and That the Defendant's plea of guiltywas and is free and voluntary. After hearing all the evidence submitted by the parties, the Court is of the opinion, and so finds, that the Defendant is guilty as confessed in the Defendant's _ plea of guilty. IT IS THEREFORE CONSIDERED, ORDERED, AD]UDGED and DECREED by the Court that the said Defendant is guilty of the offense of Driving While lntoxicated and that said Defendant committed the said offense on 25th day of October 1998 as confessed in the Defen dant's plea of guilty herein made, and that punishment be fixed, as now determined by the Court, ata fine of § " and confinement in the Texas Department of Criminal ]ustice, lnstitutional Division ' for a period of five (5) years . The Court further finds that said Defendant did not use a deadly weapon during the corn.mlission of the offense or during immediate flight therefrom. The Court further find s there was in existence a plea bargaining ' agreement between the State and the Defendant and that the punishment assessed does not exceed the punishment recomr The Court asked the Defendant a sentence should not be pronounced, and whereupon the Court pronounced sente nended. nd attorney if there was any reason why the Court received no reply in bar thereof; e, in the Defendant's presence, as follows: c IT-IS ORDERED by the Court th‘lt the said Defendant be delivered by the Sheriff of Andrews County, Texas immed ]ustice, Institutional Division where the l five (5) years , in accordance with the lav Defendant pay the Clerk of this Court th¢ against»the Defendant, and in addition tl IT IS FUR'I'HEI;)/CZRDERED that tl with §§ §§c/ 7 //`days, which is t since the Defendant's arrest as a result c Defendant is remanded to the custody of t can obey the directions hereof. iater to the Texas Departrnent of Criminal Defendant shall be confined for a period of v governing such department and that the a amount of any fine hereinabove assessed nereto, all Court costs of this prosecution le Defendant be credited on this sentence he actual amount of time spent in custody ~ )f this charge, until the date hereof. The he sheriff of Andrews county until sheriff IT IS FURTHER ORDERED that all sums of money paid by or for the Defendant on account of the money assessments hereinabove'imposed upon the Defendant, regardless of to whom su<:h sums are delivered, shall b'e paid and applied first to payment of the Court costs until paid in full, then to the fine, if any, until paid in full, and then to restitution, if any. SIGNED this the 7th day of |anuaggl 2003 . 7§§ Presiding / `_( rs Fingerprint from Right thumb v of !-fendant /