Harris, Lonnie Earl

§§w` ,U”-}D 114 Sept. 10, 2015 ABEL ACUSTA, ELERK TEXAB CUURT UF CRIMINAL APPEALS P.0. Box 12308, Capitol Station Austin, Texas 78711 In re: Art. 11.07 writ/Ex parte Lonnie E. Harris washington Eounty, Texas Cause No. 16,925-B T0 THE HUN. ABEL ACDSTA, CLERK: At the end of Augsut l received the State's reply to my Petition for writ of Habeas Eorpus. I thought by now l would have received a Notice by white Eard from your office that the writ had been received and filed so that I may file my Rebuttal. As this is not the case, enclosed for filing and challenge to the State's Reply please find an original draft of my "Applicant's Rebuttal to State's Reply to Petition for writ of Habeas Corpus" to be filed in the above referenced action. I would request that l be notified of receipt of this legal filing and be informed of what my writ number mill be please. I thank you in advance for your time in this most important matter. Respectfuly submitted, /S/ <D\emm> €i%W\l/\ l@\¢’)€)S'SS Lonnie E. Harris 1970355 C.T. Terrell Unit 1300 FM 655 Rosharon, Texas 77503 §@EWED ;QN @OMT @F CHHWNAL APPEAL§ SEP § 53 ?\i§ Ab@m@@§ia,©@@\rk Dated & documented IN THE 00URT 0F ERIMINAL APPEALS FDR THE STATE 0F TEXAS EX PARTE LUNNIE E. HARRIS, . § EAUSE N0. 16,925-5 Applicant. APPLICANT'S REBUTTAL T0 STATE'S REPLY T0 PETITIUN FDR wRIT 0F HABEAS EDRPUS AND REQUEST FOR DISMISSAL EUMES N0w LONNIE E. HARRIS, Applicant pro se, and files this his "Applicant's Rebuttal to State's Reply to Petition for writ of Habeas Eorpus" and the request to Dismiss the writ. Applicant holds that he is "actually innocent" of the charge alleged and files for writ relief pursuant to the Texas Constitution, Art. 1 §12 which holds the "writ is to be speedy and effective". To so DENY and dismiss it outright would constitute a Eonstitutional violation of Due Process of Law. The State relies on the decision of the Eourt of Appeals having wrongfully Dismissed Applicant's direct appeal holding Applicant waived his Rights to appeal by pleading guilty fall due to the ineffective assistance of counsel] now before the Court on writ of Habeas-Eorpus "AL£UwED" by the Texas Constitutiion in asking the Eourt to dismiss his writ. As such, Applicant holds to the Doctrine of Stare Decisis in matter of rebuttal. The Doctrine of Stare Decisis [requires] lower courts of appeals to follow precedent of superior court`(ln re Smith Barney, lnc., '975 5.w.2d 593, 597 (Tex. 1990)) and a pro se complaint.... Can only be dismissed for failure to state a claim if it appears be- yond a doubt prisoner can prove no set of facts that would entitle him td relief. Haines v. Kerner, LUA U.S. 519, 92 S.Et. 59& (1972) (quoting Eonley v. Gibson, 355 U.S. 41 , h5-h6, 78 S.Et. 99 (1957)). As Applicant has clearly stated a Eonstitutional claim of ineffective assistance of counsel that he can readily show facts of such action that prejudiced Applicant‘s defense to the state that he was illegally imprisoned, Applicant's writ of habeas corpus should not be Dismissed, but a published opinion entered. As Applicant has already showed that his attorney was ignorant of relevant Law in the matter of the video taping of the chemical test that [did NUT indicate] the presence of coaine, then that ignorance constitues as "identafiable lapse" in constitutional adequate representation. Eounsel who is not familiar with facts and law relevant to his client's case cannot meet the required minimum level for effective assistance of counsel (Trass v. Maggio, 731 F.2d 200 , 293 (5th Cir. 199&) intended by the 6th Amendment. The failure of the test to reveal "cocaine", as chargedih the Indictment, made for a fundametnally defective Indictment¢ Counsel did not provide objectively reasonable assistance for failure to research and investigate the Rules of Evidence to the point of counsel not functioning as counsel required by the 6th Amendment. Rompilla V. Beard, 5M5 U.S. 374, 125 S.Ct. 2 &56_(2005). An objec- tively reasonable attorney, keeping abreast of legal developments related to his case, would have been aware of cases involving the same presedent set by prior courts to the point that failure to cite such precedent rendered deficient counsel. U.S; v. william- Sun, 185 F.3d ass, uez (sth cir. 1999). with the "failure" of the test to reveal cocaine, then in essence, Applicant [is] actually innocent of the charge as set in .. l _ <~--¢-'-....__-- .-_- ‘1...\..., -. _. .» the Indictment and his attorney "should" have been aware of this fact of Law. The Sixth Amendment guarantees criminal defendnats the effective assistance of counsel, and that Right is denied when a defense counsel's performance falls below an objective standard of reasonableness and thereby prejudices the defense. Yarborough vs. Gentry, 5A0 U.B. 1, 12h S.Ct. 1 (20030; wiggins v. Smith, 539 U.S. 510, 521 , 123 S.Et. 2527 (2003). lf N0 actual assistance for the accused‘s defense is provided, the Eonstitutional guarantee has been violated. U.S. v. Cronic, h66 U.S. 648, 104 S.Et. 2039 (198#). Even the Texas appellate courts have found that "Eonstitutional error" means an error that directly offends the federal and state constitutions without regard to any statute or rule that might also apply as that term is sued in rule providing that appellate court [must] reverse a judgment of conviction if trhe appellate record in a criminal case reveals "constitutional error" that is subject to Harmless Error review; Flores v. State, 19& S.w.3d 3A (Tex.App. Texarkana 2006); Thompson v. State, 95 S.w.3d 537 (Tex.App. - Hous. [1hth Dist.] 2002). wHEREFDRE, Applicant would so pray after review of his rebuttal to the State's request, to so GRANT him relief and DENY the State their request to Dismiss Applicnat's Art. 11.07 writ of Habeas Eorpus and enter decision to acquit on all grounds. Respectfully submitted, /S/ 3@,,_;2§§2 Q[¢M 1900 355 Lonnie E. Harris 1970355 C.T. Terrell Unit 1300 FM 655 Rosharon, Texas UNSwDRN DECLARATIDN I, Lonnie E. Harris, TDEJ No. 1970355, being presently illegally restrained of my liberty at the TDCJ-CID E.T. Terrell Unit located at 1300 FM 655, Rosharon, Texas 77503 in Brazoria County, declares under penaltyof perjury that the foregoing document is true and correct to the best of my knowledge. 5igned this the IZ¥H day of September, 2015. /S/ zia/mw 619 WW Vq/>O;§'S;§ AFFIANT