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SIIAIWN KELLEH AIIEL ACOSTA !'RESIDING JUDGE COURT OF CRIMINAL APPEALS I CUli\K ()12)41>J·I~SI P.O. 130X 12308, CAPITOL STATION LA WHENCJ~ E. MEYEHS CIIEHYL .IOIINSON AUSTIN, TEXAS 78711 SIAN SCJJII.IIAII MIKE KEASU:I{ GENERAl. COJJNSI(I. (~12)41>)-1600 HAIWAHA 1'. IIEHVEY ELSA ALCALA HEHT RICIIARDSON KEVIN 1'. YEARY DA VII) NEWELL JUDGES

. July 23, 2015

Gerald W. Mitchell # 1608296 Robertson Unit 12071 FM 3522 Abilene, TX 7960 I

RE: Trial Court Case #1175727-A

Dear Mr. Mitchell:

After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus filed in the Court of Criminal Appeals at this time. If you have any further questions or concerns, please direct them to the District Clerk in the convicting county where you originally filed the application.

I am herewith returning your documents.

AA/kd ( Enclosure

SUPREME COURT BUILDING, 201 WEST 14TH STREET, ROOM 106, AUSTIN, TEXAS 78701 WEBSITE WWW.CCA.COURTS.STATE.TX.US

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EXPARTE In The 174TH District Gerald Wayne Mitchell _Court Of Applicant (Pro , Se) Harris County, Texas RE: 'Cause ,, -No. 1175727

Applicant's Objection Tb The State's Original Answer And Findings Of Facts And Conclusion Of Law, And Order

To the Honorable Judge of said Court:

Comes now Applicant Gerald Wayne Mitchell, Pro, Se by way of objection

to the State's original answer and Findings of Facts and Conclusion of Law,

and Order, for the following reasons:

I

Applicant argues that the State in its reply and Findings of Fact and

Conclusion of Law, has failed to Rebutt, Applicant's alleged Facts that the

indictment failed to. meet the requisities of an Ordance with Texas Const.

Art 5 § 12(b) in the light of Exparte Thomas 234 SW 3d .. 656 (Tex App Beau-

mont 2007) or Nix Vs. State 65 SW 3d. 664 (Tex Crim App 2001). Therefore,

it would be unreasonable in the light of Exparte Adams 768 SW 2d. 281, 288

( Tex Cdm App 1989) For the Tex. Court. Of.. Crim. Appeals to adopt the State's

Findings of Facts and Conclusion of Law in light of the Facts before the

Stat<:! and Habeas Court proceedings, which the State Court failed to legally

suppoLt they had jurisdiction over, also such action would result in a compl-

ete fundamental miscarriage of Justice.

II

Such Application if adopted would also be unreasonable in the light of Exparte Maldonado 688 SW 2d. 114, 116 (Tex Crim App 1985) and Exparte

Torres 943 ::;w 2d. 469, 4)4 (Tex Crim App 1997). Because Applicant has alleged facts surrounding a invalid indictment that failing to list a offense that

.1 *2 can be pr-osecuted by 'l'exas Law, a lack of -jur-isdiction and er-r-oneous -jur-y char-ge also alleq~tions of ineffective assistance of counsel, which if tr-ue

would entitle Applicant to r-elief. As set out in Expar-te Adams 768 sw 2d. 281, 288 (Tex Cr-im APP 1989).

Applicant would like to br-inq to the attention of this Cour-t that State, in its or-iqinal answer- under- Cause No. 1175727-A (at 2-7); In r-esPonse to Applicant's First and Third Grounds for relief. (ar. 2) Asser-ts that Applicant claims that the iudgement in the pr-imar-y case is void because it is based on a defective and invalid indictment (Applicant's Wr-it at 6-7). Specifically, Applicant claims that the State's indictment fails to to allege an offense defined by the Texas Penal Code, namely, the possession with the intent to deliver a controlled substance, weighing more than Four- (4) and less than Four Hundr-ed (400) grams by agqr-eoate, weiqht, includinq any adulter-ants and dilutants Id.

In his Thir-d qr-ound for- relief, Applicant claimed that the Tr-ial Court er-red in the -jur-y char-ge by failing to pr-oper-ly char-oe the iur-v pursuant to the indictment (Id at 10-11).

Applicant asser-ts that the State has misconstrued both of Apolicant's grounds (one) and (thr-ee).

Applicant awares that Court that in gr-ound one, Applicant never referred

to the indictment containing a defect. Requiring a review under Studer- vs. State 799 SW 2d. 263, 267 (Tex Crim App 1990).

Applicant alleqed in ground one, that.his judqement is void due to a lack of jur-isdiction, because the complaint (at cr-, 2) and the indictment (at cr,5). Which the State in its r-esoonse attached as Exhibit (A) failed to satisfy the Constitutional requisites of a charaing instrument.

Applicant suppor-t these contentions under- the Tx-Code.Crim.Pr-oc.Ar-t. 27.01 in the light of Peterson Vs. State 781 SW 2d. 933,935 (Tex Crim App

1989) which states: an infor-mation is a wr-itt-en oleadina in behalf of the State dr-awn, filed and pr-esented by a pr-osecuting attor-ney char::-ginq an accused with an offense that may be pr-osecuted under- the Law. An infor-mation must be based on a complaint, and the offense stated in the for-mer- must he character::-ized by and cor-r-espond with that stated in the Affidavit.

Also in Expar::-te Peter-son 740 SW 2d. 766, 775 (Tex Crim App 1987) and Exparte Beck 769 SW 2d. 525 (Tex Crim App 1989) states that an indictment ser-ves as a dual function. On the one hand it is the wr::-itren srnrP.ment of a Grand Jury accusing a person ther-ein named of some act or ommission which, by Law is declared to be an offense. On the other hand, the indictment is is the primary pleadina in a [Felonv] criminal action on the nart of the State. Thus the indictment serves interest of both the State nnd thA Accusen.

Which Petitioner alleqed and suonorted with facrs that- thA r.()mnlainr (at cr::-,2) and indictment (at cr,5) also shown bv the State in it.s attached Exhibit (A) under cause No. 1175727. Failed to satisfy the Constitutional requisites of a charqinq instrument. Because the St.ate of Texas as shown in both the (cr,2) and (cr,S) clerk records and in the States attached Exhibit

(A) does not have a legal penal code statute '- of Law for a offense of possess-

ion with intent to deliver a controlled substance, weiahina more than Four (4) and less than Four Hundred (400) grams by aggregate weiaht, includina any adulternats and dilutants Id.

The State in its response (at 2) conceded that the indictment as shown in their attached Exhibit (A) reflected an illAaal offense of (4 to 400) and asserted that following voir .dire and prior to the commencement of testimony. Applicant's trial counsel ·objected to the Form of the indictment, and objected to the State's, request to Amend it or abandon the Four Hundred .

(400) gram upper weight limit it (III rr, at 5-13) Apolicant's trial counsel argued that, as is, the indictment "alleges an impossible and nonexistant

offense" and that consequently, the (at,3) trial couct could not pcoperlv chacge the jucy because no applicable punishment canqe existed (III cc at 6-8). 'l'he tLial couct ovecculed tcial counsel's obiection and ultim~telv ' culed that the indictment would cemain as is, but that at the end of tcial the couct would chacge the jucy based on the evidence at tcial (III cc, at 14-15). Applicant acgues that the State's Findings (at 4), which allege that the indictment gave Applicant suuficient notice of the chacge against him, (7) that trial counsel failed to file oc show a pcetcial motion to quash and culed on prioc to the commenced trial. (8) that the objection to the indictment was timely.· (9) Applicant failed to show was claim of invalid indictment oc void judgement, which could have been, but whece not caised on dicect appeal. (10) Applicant's cecocd claims are not cogniable on habeas, and (16) that Applicant has failed to show that his conviction was impmperly obtained oc that he is being i~pcopecly confined. Also the State Conclusion of Law (at 3) which the State alleges that Applicant has waived and forfeited allegation in regards to defects and icregulacities in the indictment. Applicant also brings to the attention of this couct, that the State's ceply and indings of Facts and Conclusion of Law in regacds to the indictment have been misapplied to the Facts and Applicant's acguments undec the T.C.C.P. Act .27.01 which Applicant asserted in the light of Peterson Vs. State 781 SW 2d. 933,935 (Tex Cdm App 1989) and Exparte Petecson 240 SW 2d. 766,275 (Tex Crim App 1987) also the couct in Studer vs. State 799 SW 2d. 263,267 (Tex Crim App 1990) which speaks of a_substance defect, which is consideced fundamental er:cocsince a a charging instcument with such a defect failed to confer jucisdiction upon the trial couct and any conviction had upon that instrument was tcecefoce void. This court has used the teems substance defect, "Fundamental ecror", and fatally defective intecchangably when addressing errors in charging instcuments which led. to void conviction at 268; A sub- stance defect is among other things, a failuce to allege an element of an offense ih the charging instrument. Applicant further assects that the State's response, Findings of Facts and .Conclusion of Law in regards to the indictment shown in State's Exhibit (A) is unreasonable in the .light of Nix Vs. State 65 SW 3d• 664 (Tex Crim App 2001) which Applicant asserts that the State failed to oveccome Applica~

nt' s alleged facts 1n gmund one (1) • Also in the absence of jurisdiction and a legal charging instcument no objection is cequired as set out in Nix

vs. State: A judgement of conviction fo~ a c~ime is void when (1) the document pu~po~ting to be a cha~ging inst~ument, that is the indictment, infor-mation or- complaint does not satisfy Constitutional r-equisites of a char-ging instr-- ument, thus tr-ial cour-t has no jur-isdiction over- defendant (2) tr-ial cour-t lack subject matter- jur-isdiction over- offense char-ged, such as when a mis- demeanor- involves official misconduct is tr-ied in a cour-t of law. (3) Recor-d r-eflect that ther-e is no evidence to suppor-t the conviction or- (4) an indigent defendant is requir-ed to face criminal trial proceedings without court app- ointed counsel when such has not been waived (at 667) our- cases r-ecognize two exceptions to general r-ule, which exceptions we shall call (1) the void judgement exception and (2) the Habeas Corpus exception. The void judgement exception recognizes that there are some rar-e situation in which a tr-ial court's judgement is accor-ded no respect due to a complete lack of power- to render the judgement in question, a void judgement is a nully and can be attacked at any time. Exparte Patterson 969 SW 2d. 16,19 (Tex Crim App 1998) therefor-e r-ebutting the State's contention that a objection was nec- essary if not any indictment er-r-or was waived. Also Studer Vs. State is a misapplied as well in the light of Exparte Thomas 234 SW 3d. 656 (Tex App Beaumont 2007) which lays out the 1985 Amend- ment for Studer vs. State 799 SW 2d. 263 (Tex Cdm App 1990) which Expar-te Thomas reads: The Amendment to the Texas Constitution and.the Tex.Code of Cr-im. Pr-oc. 1n (1985) change the Law see; Cook 902 SW 2d. 476. The Legislatur-e is author- ized to prescribed by statute the effects of substantive defects in charging instruments. A defect of form or substance in ari indictment or information is waived if no objection is made before the date commences tr-ial; and the pr-esentment of an indictment or- infor-mation vest the cour-t with jur-isdiction over- the case see Tex.Const.Ar-t. V § l2(b); Tex.Code Cdm.Pr-oc.Ann Ar-t. 1.14 (b) Vernon 2005. The Constitutional Admendment allowed the specific requir-e- ments of indictments and informations to be deter-rmined by statute see Tex. Const.Ar-t. V § 12(b). Teal Vs. State SW 3d. 172,178 (Tex Cdm App 2007). Studer Vs. State SW 2d~. at.272. The.change in Law shifted the focus from whether a defect was a fundamentaL substantive defect to whether- the defend- ant objected to the defect. before trial, see Teal Vs. State 230 SW 3d. at 178; Cook Vs. State 902 SW 2d. at 477. The r-ule as stated ear-lier regarding the allegations 1s an indictment

also qenecally apply to an infocmation see Tex.Code Ccim.Pcoc. Ann Act. 21.23 (Vecnon 1989). The Statute defines an infocmation as a wcitten statement filed and pcesented in behalf of the State by the distcict oc county attorney chacging the defendant with an offense which may by law be so pcosecuted Tex.Code Crim.Proc.Ann Art. 21.20 (Vecnon 1989). An information is presented when it is filed by the proper officec in the proper court, Tex.Code Ccim. Pcoc. Ann Act. 12.07 (Vemon 2005). A charging instrument that charges a person with committing an offense once presented involves the trial court's jurisdiction is no longec contingent on whether the charging instcument con- tains defects of form or substance. Teal Vs. State 230 SW 3d. at 178, see also Exparte Patterson 969 SW 2d. at 19; and Duron Vs. State 956 SW 2d. 547, 550-51 (Tex Crim App 1997). Applicant further concludes in reference to the State's reply on App- licant's ground three. Which .Applicant asserted earlier that the State had misconstrued, .which the State (at 2) in its reply contend that Applicant claims the tcial couct erred in the jucy charge by failing to propecly ch~rge

the jucy pucsuant to the .indictment. ( Id at 10-11). Applicant points out that the complained eccoc in which the State's speaks of, Applicant alleged that the trial court erred in submitting the jury chacge before the court over Applic~nt's objection, because the charge failed to instruct the jury on the Law of the case as set out under T.c.c.P. Art. 36.14. Which the State in its original answer (at 2-7) allege that the indictment shown in State's Exhibit (A); in its Findings of Fact under No. 3,4,5,6,16 and its Conclusion of Law under No. 1,2, and 10. Contends that the jury charge was a variance from the wording of the indictment, the evid- dence presented at trial in the primary case was not material and did not prejudice Applicant's Right's, that the indictment gave Applicant sufficient notice of the charge against him, in order to prepare a defense to prevent the State from a later prosecution, also that Applicant failed to show how his preparation or defense strategy was harmed by any variance between the indictment and the evidence presented at trial, or how he recieved a harsher punishment. Applicant asserts that the Facts and J.<'indings and.Conclusions of Law, in relation to .Applicant's thicd gcound of relief. Which the State ask to be adopted would be unreasonable in the light of the Tex.Code Crim.Proc. Art. 36.14. Amanza vs. State 686 SW 2d. 157 (Tex Crim App 1984) causing App- licant egregiuos harm. Because the indictment shown in the State's Exhibit(A) and the jury charge shown in State's Exhibit (B) of its original answer failed

to meet the Constitutional requisites of a charging instrument in accordance with Tex.Const.Art. V § 12(b) in light of Exparte Thomas 234 SW 3d. 656 (Tex App Beaumont 2007) and Nix Vs. State 65 SW 3d. 664 (Tex Crim App 2001) to provide the court with jurisdiction or invoke the 1985 Amendment under Studer vs. State 799 SW 2d. 263,267 (Tex Crim App 1990). Requiring an onjection to the indictment prior to commencement of trial, presentment of the indict- ment or information, as set out under Tex.Code Crim.Proc.Ann Art. 1.14(b). Applicant further asserts that the jury charge fails to meet the Constitut- ional requisites under In Re Winship 397 u.s. 358,364, 90 Set. 1068.25 L.ed 2d. 368 (1970). Also the Constitutional.requir.ements by the Judge under the Tex.Code Crim.Proc.Art. 36.14 in the light of Vasquez Vs. State 389 SW 3d. 361,366 (Tex Crim App 2012). Which states that the charge is the instrument by which the jury convicts, it .must contain an accurate statement of the Law and must set out all the essential elements of the offense. Which goes back to Applicant's trial counsel's argument about the indictment alleging a nonexistant offense and. that consequently the trial court could not properly charge the jury because. no law applicable exist to either the charge or pun- ishment (III rr at 6-8). Therefore making it impossible for the court to meet the Constitutional requirements under the (Tex. Code Crim.Proc. 36.14). Which the State has failed to overcome Applicant alleged Facts which if true would entitle Applicant to relief on this ground three. of error as well. Applicant now concluded this objection in good faith and undue delay, asserts that the State in its original answer, Facts and Findings and Conclusion of Law have unreasonably applied Gollihar Vs. State 46 SW 3d. 243,257 (Tex Crim App 2001) alleging that the jury charge shownin its attached Exhibit(B) is a variance, because a variance onlyapplies to a charge to the court in which jurisdiction has been involved. However Applicant will supply a few factors, in case this court was to stand by the State's allegations of a variance, Applicant asserts: ·A variance between an indictment ·and proof at trial will be fatal to a conviction only if.it. is material. A variance is material if it prejudices defendant's substantial Rights. Rickerson Vs. State 138 SW 3d. 528 (Tex App Houston 14 Dist 2004). a variance between the indictment. and the evidence at trial Generally is fatal to a conviction. because due process guarantees the defendant notice of the charge against him u.s.c.A~Const. Amend. 14. Greeno Vs. State SW 3d. 495 (Tex App Houston 2001) and Moore Vs. State SW 3d. 495 (Tex App 2000).

Which Applicant alleges that the State neve~ had a charging instrument. Applicant further a~gues that the State's reply to Applicant's second and fourth ground for relief, on Applicant's claim of ineffective assistance on Appeal, due to Appellate counsel failure to raise on Appeal the issues of an invalid/defective indictment, invalid jury charge, and void judgement shown in Applicant's Writ (at 8-9, 12-13). Applicant argues that it would be unreasonable in the light of Exparte Adams 768 SW 2d- 281,288 (Tex Crim App 1989). For this court to adopt the -state's contentions ·in·· its r~ply bri-ef- (at 7..::9) ot fEs Fihaihgs o-CFacts and Conclusion of Law under No (11) stating Applicant failed to show a reas- onable probability that but for Appellate's counsel allegedly deficient con- duct of not raising the defective or invalid indictment, improper jury charge and void judgement, he would have .prevailed. (at No 12) That these claims were clearly stronger than the insufficientcy of the evidence to support the punishment enhancement shown at Mitchell slip up (at 2-4) citing Exparte Madn 2008 WL 902143, 4 (Tex Crim App April 2, 2008) and Smith Vs. Robbins 528 u.s. 259,285-86 (2000)(Also No 13). Also that Appellate counsel provided effective assistance of counsel, is clearly unreasonable as well as the State Conclusion of Law under No.s (4-10). Which Applicant argues that the State · contention about the significants of the errors raised, Applicant points out that Applicant alleged challenges .on the guilt/innocence phase, which is a grave error than the punishment challenged error by Appellate counsel as referred to by the state and shown at Mitchell slip op. at 2,4. Also App- licant asserts that the State's contention that such error in a Habeas Corpus application is not cognizable on habeas as stated in the State's Facts arid Findings (at (10) and (11)). Its also unreasonable in the light of Applicant's ground two, which Applicant asserted that Appellate counsel was ineffective for failing to challenge the void judgement on Appeal, due .to a lack of juris- diction and also that such errors is not barred on Habeas Corpus in light of Coleman Vs. Thompson 501 u.s. 722,ll5 L.• Ed. 2d. 640,lll Set 2546 (1991) and had the State court on habeas review considered Applicant's alleged Facts as set out under Exparte Maldonado 688 SW 2d. ll4,ll6 (Tex Crim App 1985). The Habeas court would have come to the conclusion that had Appellate counsel gathered the Law and Facts and challenged such alleged errors by Applicant. No Apppellate court would have come to the conclusion that the State court ever had jurisdiction, nor was the conviction valid, or the jury charge was correct and would have agreed with Applicant that his conviction is void

and rest. On a co1riplete fundamental miscarriage of justice, therefore entitl- ing Applicant to relief on Appeal as set out in Exparte Daigle 848 SW 2d. 691,692 (Tex Crim App 1993). Prayer Applicant prays that this court would review the State original answer Findings of Facts and Concltision of Law along with Applicant's objections and then find that the State contentions and Facts is unreasonable and that jurisdiction was never established, nor did the juror charge satisfy the T.c.c.P. 36.14. and thereafter grant relief. Certificate Of Service Applicant, Gerald Wayne Mitchell, do hereby state. that the foregoing is true and correct and free of perjury.

Executed date -----------------------------------

Gerald Wayne Mitchell #1608296 French Robertson Unit 12071 F.M. 3522 Abilene, Texas 79601

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

~;~~~fAJ;f3T~~~3~L ~T PENALTY FOR PRIVATE USE 7/27/2015 MITCHELL, GERALD WAYN WR-41,379-03 On this day, the application Corpus has been received and presented to the Court. Abel Acosta, Clerk

GERALD WAYNE MITCHELL ROBERTSON UNIT - TDC # 1608296 12071 FM 3522 ABILENE, TX 79601

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