The opinion
HX.5-15
CAUSE N0:PD-0425-15
IN THE COURT
OF
OF
TEXAS
CRIMINAL APPEALS ORIGINAL
ZIULIO TORRES PALOMO
V.
STATE OF TEXAS
ON APPEAL FROM THE COURT OF APPEALS FOR THE SIXTH
DISTRICT OF' TEXAS AT TEXARKANA '
AND
ON APPE'AL FROM THE 196th JUDICIAL DISTRICT COURT
OF HUNT COUNTY, TEXAS
TRIAL NO. 28777"
BRIEF FOR PETITION FOR DISCRETIONARY REUIEL)
3ULI0 TORRES PALOMO
#192 3341 court of cmm appeals
Mc Cbnnell Unit
3 0 01 S. Emily Dr :.; OCT 23 2015
Beeville, Texas 78102
Petitioner- PRO-Se
Abel Acosta, Clerk
FILED IN
COURT OF CRIMINAL APPEALS
OCT 23 2015
Abel Acosta, Clerk
LIST OF PARTIES
APPELLANT- 3ULI0 TORRES PALOMO
ATTORNEY FDR APPELLANT DAVID"KETTH" UILLFORD
LINDEN'S UILLFORD
P.O. BOX 1T
Greenville, Texas '; "••
75401
ATTORNEY FOR DIRECT APPEAL CARIANN ABRAMSON
P.O. BOX 1683
Forney, Texas 75126
PROSECUTORS STATE KELI AIKEN
ASSISTANT DISTRICT
ATTORNEY (af- trial)
GEORGE'CALVAN ' GROGON
ASSISTANT DISTRICT
ATTORNEY(at trial)
NOBLE D'. WALKER
DISTRICT ATTORNEY
(ON APPEAL)
Hunt County District
Attorney's Office
2507 Lee Street
Greenville, Texas
75401
(i)
Table of'Contents
Index of Authorities pg.iv-v,
Statement of the Case pg.1&2.
Issuses Presented pg . 2 .
Statement of Facts • p g . 3 & 4 . ,<
Argument pg .5-14,
Point of Error One pg.-5.
Insufficient Proof of Appellant Committing Continous Sexual
Assault on Nancy Ramirez:
Poiratof Error Two- pg.6.
Insufficient Proof of Appellant Committing Con tin bus ^-Se.xual
Assault on Kary Ramirez:
Point of Error Three pg.6.
Nancy Ramirez statements are inadmissible under the outcry
exception rule when the translator did not accureterly trans
late the questions& answers to/of the Forensic interviewer who
testified as the outcry witness whmo was actually a third party
witness under Texas 'Code of Criminal Procedure art.38.072 and
eligible to testifiy as original outcry witness
Ms.Claudia Alavrado is the first person over the age of 1B years
to be told of the alleged incident. The trial court abuse it's
discretion when it allowed Ms.Charlene Ralph who Is officially
a Forensic Interviewer to testify u'dder the Hearsay Rule
pursuant to T.C.C.P.art.3 8s0 72.
Point of Error Four pg.6.
Nancy Ramirez& Kary Ramirez statements are inadmissible under
the outcry exception when the translator Claudia Alavardo did
not accrately translate the statements (qliesti-on & Answers)of
the Forensic Interviewer who testified as the outcry witness.
Point of Error Five pg.10.
Appellant was prejudiced by the trial's court's failer to appoint
New Trial Counsel when conflict of interest arose under discip
linary rules about Trial counsel and Appellant, see, State Bar
Rules of Texas "Ethical Consideration on Code of Professional
Responsibility", EC7-8.
Point of Error Six . P9-11
Appellant is entitled to New Trial because the State, through
it's Child Advocacy Center, faied to provide mitigating or
exculpatory material after requested by appellant on numerous
occasions.
Point of Error Seven pg.13.
Appellant was deprived of his sixth amendment rights of effective
a s s i s t a n'@ e of counsel because defense counsel:
A:Alloued Appellant to file a sworn statement of his criminal
history(without proper investigation of all the facts, a mini-
trial duty) that resulted in a perjury charge indictment and
which thus created a conflict of interest.
(ii)
(see Texas Bar Rules of Lawyer Profession Conduct).
B: Attorney failed to request a continuance when state's agent
Hunt County Child Advocacy Center failed to produce requested
mitigating evidence and/or- exculpatory material reqested several
times ,which finally became apparent at trial.
Prayer . pg.14
Certificate of serviee _ P9-1 5
Unsworn Declation P 9 •1 5
(iii)
Index of Authority
Cases:
Anderson \l . State, 159S.w.3d 102-03
Bone V . State, 77S.W. 3d 828,835(Tex.Crim . App. 2002)
Brooks U .State ,323S.W .3d 893 ,912(Tex .Crim .App . 2010)-
Brady \l . Maryland, 373 U.S.B7 , 83S.CT .1194--- ---
Cas sidy V.State,14 9S.w.3d 712 ,715(Tex.Crim.App.2004)-----
Cuyler V . Sull i van ,466'U .S .335 ,348-50--; ------
Ex Parte Battle, 81 7S .w .BT ,88 (Tex .Crim .App .1 991 )--' — --
Ex Parte Briggs, 1B7S.w.3d 458 ,469(Tex . Crim.App.2005)---
Ex Parte Duffy, 607 S .w .2d:"'507 ,51 4 ,51 9(Tex . Crim .App .1980)
Ex Parte Felton,8T5 S .w .733 ,735 -36'CTex .Cr im. App .1991 )
ExParte Martinez, 330S .w .3dB91 ,900(Tex .Crim .App.201T)
ExParte Uilborn ,724S.w.2d 391, 393(Tex .Crim .App .1990) --
Ex Parte Wilson,7245.w.2d72,74(Tex. Crim. App.1987)--;
Ex Parte Ybarra ,629S .w .2d94 3 ,'946 (Tex . Crim .App .1 982 )
Ford V . State ,305S.W. 3d 5 30 ,5 33 (Tex .CT im••'. App'. 2009 )• ----
Garica y .State ,792S .w .2dB8 (Tex .Crim,. App '•. T9 99 )----- ---
Garica V .State ,871 5 .w .2d279 (Tex .App;. EL 'Pasdl 994 ,rio ,pet .)-
GallegosU.State,756S.w.2d4 5, 4B'(Tex .App .-San Antonibl 9 88 ,pe t .ref Id
Gay. V .State,98S.w.2dB64,86 6(Tex.App.rWous. [1st .Dist .]1998)
Garza \l. State ,21 35 .w .3d'33'B ,34 7(Tex .Crim .App .2007 )
Hernandez V .State,7265.w.2d53,57,61 (Tex .Crim .App.1986)^-- .
Hardy V. State, 246S.w.3d290,296 Tex. App.-Houst.114th.Dist.]2008)
Hooper V/.State,2T4S.w.3d9,1 3 (Tex .Crim .App .2007) -"-
In Re Posada usa ine .,100S .w .3d254 ,25 9(Tex'.•App .San Aintonio2001.)
Oackson \J . Sta te ,443U .S .30 7., 319 (1 979 ) --: •• • ---
]ackson \1. Uirginia ,776S. w .2d504 ,50-8 (Tex .Crim .App. 1 9'85)--- '
Johnson \1 .State ,304U .S.,45 B ,464 (1 938) -__..____.__ ---- '
Johnson \y.State,9 67S.w.2d410,41 7Tex .Crim. App .1998-----
Kyles U.Bhitley ,U.S.;4T9 ,4 37-38 ,1 1 5S .Ct .1 555(19950 :
Lankston \l .State ,827S .w ,2d'9'07 ,-91 1 (Tex .Crim .App .1 992) -----
L o ng \l .St at e ,B00 S .w .2 d54 5 ,54 7 _^U'
Montgomery V.State,B105,w.2d372,380(Tex.Grim.App .2002)^
Mo till a U.State,78S.w. 3d3 5'2 ,355 (Tex .Gri.m .App .20:0 2}:---
Monreal \]. STate ,94 7S .w .2d5 59 ,564 (Tex .Cr im .App .'1 9970
Moussazadeh \l . State ,361 S.w.3d6B5,689(TeX .Crim .App .201 '2) --
Payne U. State ,51 6S .w .2d675 ,677 (Tex .Crim. App .1 974) ~- — ----^
Saavedra U.State,297S.w.3d-342, 34 8(Tex .Crim. App..20 0-8)
Strickland V .Washington ,446.U .S .69 6 (1'9B4) -____--_
Thomas \l. State ,1 55S .w .3d1 40'7( Tex ';'A'pp.v;-Texarkana1:999 )''----:
United States \l .Bagley ;473U .S .667 ,1 OSS ,CT .3375 (1 9S0 )
Wiggins y .Smi th ,5 3 9U .S .51 0 ,5 21-22(2003) --^ __^_^
Yates W ..State ,941 S .w .2d357 ,364(Tex .App .-Wacol 997)
Statutes and Rule's
Tex . Pen.Code's 21 .02
Tex .Pen.Code S 21 .02(h)
fex: •; Discip'll nary R. Prof Conduct Rule 1 .06(b)(2)
(iv).
Tex.Code Crim. Proc. Art. 38.072
Tex.Code Crim. Proc. Art.38.072 § 2(a)(3)
Tex . R.App. P.44.2(b)
Constitutional Am end mehts
U.S. Const. Amend . \l, VI ,XIV .
(v)
To The Honorable Court of Appeals
Now comes Appellant, Julio Torres Palomo, and submits this
Petition for Discretiony Review on Appeal from a conviction
for alleged continuous, sexual assualt of a young child(ren)
in the 196th Judicial District court of Hunt County,Texas,
The Honorable Steve R. Title jr., Judge Presiding.
•Statement of Case
Appe llan t wa s i n d icte d on Jan uary 25,2013 for continuous sexual
assa ult alle ging two or m ore of the, following acts:
1 . I ndec ency with • ch i Id b y se xual contact by Appellant touching
the geni tal s of Ka ry R amir ez ;
2. I ndec ency with chi Id b y se xual'.contact: by Appellant touching
the geni t als of, K a r y Rani re z ;
3;-i ndec ency with se xual con'tact f..by ,causing. Kary Ramirez
chi Id ' b y
to t ouch :th e Appe llan t;
geni ta'ls of
4-.: A ggra va te d sex ual a s s a ult by p ene t]ration of the anus of Kary
Rami r ez by A ppell ant s e x u al o r g ah
5 . A ggra va te d sex ual a s s a u 11-••'• by A ppellantls sexual Organ to •; •••''''•-
con t act o r c ontac t an d pe n e t r ate anus of Kary Ramirez;
6Agg ra va ted sexua 1 as s aul t by pen etratlon of the anus of Nancy
Rami re z by a ppell ant ' s s e xual org an ;
7. A ggra vate d sex ual a s s a ult by P enetra'tiofl "of the sexual org^an
of Ka ry R amir ez by app el la nt o rgan i
8.Ag gra v ated s e x u al a s s a u It b y ca using the mouth of Nancy Ramirez
to:,c on ta ct t he se xual org an d f Ap pell ant;
9.Ag gra v ated s e x u al a s s a u It b y pe netra'tion of the mouth of Nancy
Rami rez by A ppell ant ' s s e xual org an;- '':-.
I 0. Aggr a vat ed se xual a s s aul t by causing the s-e-xual organ of
Appe llan t to con t act the a n u s of Nancy Ramirez ;
II . aggr avat ed s e xual a s s ult bye ausing the sexual organ of.
Appe llan t to con t act sexu al o rgan of Nancy Ramirez and/or.
1 2. Inde c e n c y wit h ch ild by s exua 1 contact by Appellant touching
the sexu al o Tgan of N ancy Ram ire z
On S eptember 1 2010, Tex. Pen. Code ''§:'". 21 \ 02:, the alleged offenses
are a degree felonies that are punishable by confinement
first
in t he In t i t utional Division of the Texas Depatment of Criminal
Just ice for Life, or any term of not more than' 99 years or less
than 2 5 year s. Se.e, Tex. Pen .Code |§ 21.02(h).
* '
-. . *'-.'.
arch 24, 2 014, Jury trial proceedings began . '
0 n '" M
Appe 1Iant pi ead not guilty to the charge of continuous se-xual
abus e of you ng child(ern) as charged>!ih" the' indictment.
Puni shment w as assessed by the Jury on April 1 20.14 at' Life,
not i ce of ap peal was filed
trial. on a motion for new
An otion for hew trial-on punishment and a motion in
a mended m
arre s t of j u dgment was filed on May 28, 2 014.
OnMa y2B,2014 the trial court heard Appellant's motion for new
tria 1 and to ok it under advisement, but ultimately denied the
moti on for n ew trial on June10,2014.
(1)
Issues Presented
Point of Error One
Insufficient proof of Appellant committing continuous sexual!
assault of Nancy Ramirez.
Point of Error Two
Insufficient proof of Appellant committing continuous sexual
assault of Kary Ramirez.
Point of Error Three
Nancy Ramirez statements are inadmissible under the outcry '.-.•'••'
exception when the translator did not accuraterly translate
the question and anwers to/of the Foresic interviewer who made
testified as the outcry witness who was actually ,third party
witness under Tex. Code of Crim . Proc . art . 3 8 . 072 and not
eligible to testify as original outcry witness.
Claudia Alvarado was the first person over the age of 18 years
to be told of the alleged incident.
Trial court abuse it's diseretion when it allowed Hunt County
Child Advocacy Center (hereinafter''HCCAC) .
Charlene Ralph who is officially a FoTesic Interviewer to testify
under the hearsay exception pursuant to art. 38.072 of Tex.Code
of Crimial Procedure.
Point of Error Four
Nancy Ramirez statements are Inadmissible under the outcry
exception when the translator Claudia AlVarado did not accurately
translate the statements (questions&answers)to the foresic
interviewer whom testified as the outcry wi t n e s s.
Point of Err or F"i v e •
Appellant was prejuiced- by Trial Court's: failure to-appoint 'new
Trial counsel (defense) when a conflict of interest1 arose under
disciplinary rules between Trial Counsel and Appellant.
See, State Bar Rule s' of -Tex . "Ethical Considerations of Profess--
ional Responsibility',' EC, 7-8.
Point of Error ;5ix
Appellant is entitled to a new Trial because the State,through
it's Child Advocacy Center, failed to provide mitigating or
exculpatory evidence material after' requested by Appellant on'
numerous occasions.
Point of Error Seven
Appellant was deprived of his sixth am.endment right to effective
Assistance of Counsel because defense counsel:'
(A): Allowed Appellant to file a sworn statement of fact concern
ing his criminal..record(uiithoijt proper investigtion of all facts,
simply a minstrial duty) that resulted in agrave error, which
(2) .
thus created a conflict of interest. See,Tex.Bar Rules of Lawyer
Professional Conduct).
(B) : Attorney failed to- request mitgating' or Exculpatory material
already requsted several times, which finally became apparent at
trial .
Statement- of facts
On Se ptemb er ; 1 7, 2012,' it is
alle-ged that Appellant's biolgical
daugh ter , comp 1 a in t ant Nancy
Ramirez-, made an outcry to a school-
ma te , n a m e d Ev elyn Re gel a do,
while riding the school bus home.
this schoo lfnat e told her mother ,Marib el Regelado,. who report's
it to :the Scho ol Counselor, Deborah Floyd, with the support of
Marib el ' s Past o't Carlos Mendoza. .••.'.
The T exas Depa rtment of Family and Prd-tect ive -Service s (herein •-•""
after ) "CPS "•) is called,however, neither complaintant Nancy or
Kary Ramir ez , w h'b is the step daugther of Appellant•'"', make outcry
to th e CPS Wot kers .
Ms . Ai sha C outa in with CPS aranges for a forensic interview- to be
condu cted at t he Hunt County Child Advocacy Center (HCCAC) the
folio wing day .
Ms . C harle ne R alph' is a Forensic Interviewer with the HCCAC which
alleg ally in terviews both .girls through a bi-lingu-al interpreter
Ms .CI audia ATv arado, wh;om -works .for the Hunt County Sheriff 's
Dept . as a ".. lay -person whom does clerk work as a back ground
resea rcher ,she is not trained, certifed, licensed,or educated
as a for en sic in ter viewer ,a 1 icensed peace office TV'*
On or about SeptemberT'B ,201 2 it's alleged complaintant Nancy-
Ramirez made an outcry to Charlene Ralph during a Forensic ••<-
interview .through Claudia Alvarado ,of having touched the ;
Appellant's penis and vaginal penetration.
Complaintant Kary Ramirez did not make an outcry of any abuse
on September 1 8 ,2012 .
On October 17, 2012 or about, it's alleged a second
_.„,,.. ,^^..o^..
Forensic
interview was set up for alleged Compliantant Kary Ramirez with
Cladia Alvarado as translator in which compliantant Kary Ramirez
allegally made an outcry that Appellant touched her chest, butt,
and vaginal area with his hands,.she is alleging to touched his
neniR.anH allpnal-lw Ar, r, o 1 1'= r, + r, =„•= + „ ~+ „ A u „ - with his penis.
'' "' t r i al day)'
examiner examination and Forensic interveiw
FILED", against Appellant.
Appellant knew of the interview due to it 's ref erence-'' in the
CPS reports, but no police report was provided nor was the video
of theTForensic interview .turned- over to the --Appellant,' until
the day of his trial.'
Multiple request- were made by Defense for the video. The state
attemped to retieve the video from It's' a^ent',- HCCAC informed -
the state the video did not exist.
It was not until Forensic interviewer Charlene Ralph with the
HCCAC(state Agent)was on the stand testifying in the instant
(3)
That the 2008 video' was located in the file Ms. Ralph brougt it
to the trial' court In Re: Nancy and- Kary Ramrlez.
The 201:4 Dire ctorof HCCAC, Holly Robinson', to1d the trial court
that she did not recall receiving the subpoe na , but,.- did not deny
she could ha v e been se vr-ed one•-.•.( emphsi s mine )and it got loat
on h er de sk?
If s he di 'd Id ok for the v I d e-o tap e o f th e int erview., she would not
have been abl e to 1 ocate i t sine e it ha d bee n removed from the
orig inal vie t ims -fi le for', Jazmln -Cos te 1 1 o :an d .pl.an-ced' in the • -•"-•'
newe r vie t ims file of Nanc y and Kary Ra m i r z;- which was' in-'' posses^--
ion of Ms •' . R a lph,(l t seems' Ms . Ro bin son was a ware' of this 'much,
as i t was un v eiled atcourt)'(' emphs I s -mi'ne•)•'•.'see ,( RR-; 1 2 4)
the trial
The inter veiw s that Ms . Ra Iph co nducted ' were done through -the use
of a Hunt Cou nty Sh eriff E mploye e CI a u d la Al var'ado•'( whbm' is- not
a li cense d Pe ace-Of ficer , but a cler k/b aokgr ourid reseacher whom
happ ens t o be His pa n i c )t o ; ass ist in the tran slation . "
Ms .A 1 vara do h as no for ma1 traini n g 1 n t ransl at ion., Law Enforce- .
ment or F o r e n s ic in terview ing ,no r is sh e ere den ti-'aled;.or cer t'- <l '
if ie d in tran slatio n ,by ah y 11 ce nslng a uthor II y , Ms. A1 a-v a r d o
Admi ts th at s he mod ified q ue'stin s' and a n s w e r s that were asked
and a n s w e red from b o t h i ri t erview er and compl ian'tants' in order to
aid the i nter view . (more 1 ike ci rcumven t the issuses), emphsis i':--'
mine
The state's "Notice, of intent to introduce outcry', statement of
chil d abuse complaint-'s pursuant to art. 38.072 Tex. Code of
Grim inal Proc. filed for Charlene Ralph(sould have been for
Clau dia Alvarado ) as shewas the first person over the- of 18
year s to be given notice/outcry of sexual abuse of Complaintant's
youn ger than 14 years of age), see, T.C.C-.P. art.38.072.
It is recorded both complant's refered(spoke to) Claufla Alvarado
whom in-turn refered to Forensic interv ieiiier Charlene Ralph,
only there were many misquotes,circumvented questions and answers
as Ms. Alavarado stated"She modified question and answers in
order to aid'the interview" unquote.
Ms.Alavardo ;cliams on record"She is hot Technically qualified to
interview the allg'ed victims of child abuse".
Prior to trial, Appellant Is said, to h'ave executed a' swore state
ment he was eligible for 'probation(community' supervision)at the
urgencies, of his Defense Attorney, which was prepared by him ,
notarized by his staff. This statement is said was among other
filings. The state thus filed"Aggravated Perjury charges" on
the Appellant, as he was"not eligible for probation" .
As lead to believe by his Defense counsel, due to- a prior convlc-'-
tion .
The trial, counsel filed a motion to with draw as Attorney of
record; 'wanting no respon s i.bi ty for his error..
Trial counsel argued on his behalf -he must be a "Fact -Witn-e-es"
for the state on the new indictment against his client1.
The state' g a ve further notice it would use this .new charge as
an exterous offense. To add further injury, Trial court denied
Trial Counsel's request to withdraw from/as Attorney of record.
(4)
ARGUM'ENT.
' Pibnt'of Error One
Insufficient proof Appellant committed continuous Sexual
Assault on Nancy Ramirez.
Piont of Error Two
Insufficient proof Appellant committed continuous Sexual
Assault on Kary Ramirez.
Evidence must show more than a mere modicum of proof on the
elements of actual sexual, abuse. Appellant presents points of
error One & Two together since they are based on a common nexus
of fact and.Law.
During trial, both complainant t' s , Nancy& Kary Ramierz-, testified
via close circuit. The outcry witness is said to be Charlene
Ralph and not Claudia Alvarado for both cdmplianarit 's .
Ms. Raplh testifed that Nancy Ramirez touched Appellant 's penis
with her hand and some part of the'Appellant's body touched her -
vagina.
Nancy Ramirez herself did not -testify -before the jury that .. •'
Appellant's penis touched her vagina, she did testify that her
mouth touched Appellant's penisvand that Appellant touchher
vagina. (Although no' specifics) .
Ms.Raplh slso testified that Kary touched Appellant1's penis,
that his penis penetrated- her a-hus and -vagina, (or is this Ms.
Alvarado's distorted, no wait, Ms. Alvarado's "modificaton "of
the questtions and answers to aid the interviewv'" for"the
state.
Kary Ramirez' did testify the Appellant' touched her vagina"- with
his hand,"but did not,penetrate it with his penis./.
(RR. :7-63-1 32) Who's lying ,Who!»"distor ting.-" the-'- truth ?
Standard of Review
IriTexas, the' Jackson•V. Virlnia, standard- is the only standard
that a reviewing court should that a reviewirig court should
apply in determining whether evidence is sufficient':to- support
the elements of a criminal -offense, the state is required- to prove
"beyond a.reasonable doubt"'. See, Brooks v. 51ate,323s.w.3d 893,
912(Tex.Crim .App .2010) ; also, Jackson V.Vlrgina.at 443U .5 .307 ,319
(1 979) . ..........
On review "direct and c ire urns tan tial-evdidence can.be treated-
equallyV that circumstantial can be sufficient to establish guilt.
See, Hooper v. State, 214s.w.3d 9,13(Tex .Crim .App .2007) .
A conclusion must reached on a certain degree of•speculaton
which cannot be unreasonable in an ordinary sense , but a matter
of Law. speculation -along, cannot/should not be treated/tested
solely based on "Heresay Trans 1-ation',' which claims to' have been
"Modified to aidi in th-ga Stages behalf".
(5)
Ultimately the modified circumstantial(Modification of ;Translat-
lation) evide-nce, especially those of cumulative' Lri ferenc'e s^i is- •
there no actual evdience should be Insufficient to support this
conviction, since there Is -no act ual'evidence- probative of any
element but a mere modicum piece of evidence which does -not up
to a mere preponderence of evidence needed .to sustain a rightful
conviction. Therefore, it 's conclusively established that the •
state failed to meet it's burden of proof. It is therefore asked
that this conviction and sentence thereby, be set-aside, in
alternative , Reverse and Remand f or a - new itrial;';-'-- ' '' '--:«..•••?•
Point of Error fn-e ( restated )
Iriuffieient proof of Appellant continuous sexual assault on
Nancy Ramirez. • -' -.
It is said that neither Ms. Raplh nor Nancy (said cOmplal'ntant) -
testified about alleged acts 6 or 10,- which claimed Appellant's
penis made contact or penetraton 'of the anus of Nancy Ramirez .
(see. RR.7:10-63;RR.9:85-104) .
There is an implication(no proof) that Appellant perils"may have"
(conjucture) contacted the anus or. the vagina of complaint Nancy
Ramirez. For these reasons,this Honorable court should-sustain
point of error one and aquit this Appellant . In'- alternative
reverse and remand with instruction.
Point of ErrorTwo('res't-ated)
Insfficent proof of Appellant continuous sexual assault on
Kary Ramirez .
It is said neither Ms.. Raplh(allaged outcry witness) nor Nancy
Ramirez testifed to act one of alleged touching of the anus
of Kary Ramirez. Itis also said on record that act seven was, • '
also abandoned by the state for "lack of proof',' during the trial
For these reasons,this Honor court should sustain -error Two.
Point of error Three
It is said that Nancy Ramirez statements are inadmissible ' under
the outcry expection'"rule due to the translation is an inaccu-'. •
rate one, as the translator "modified " the'- actual ,!|'questions";
and answers) to aid in the interview for the state.' - .
Ms. Alvarado, not Ms . Ralph is the first person over the. age of
!8 years of age the complainants told of the allaged sexual
abuse .
Can a minor child in Texas have authority to give consent to a
third party (alleged outcry witness) to' testify, on h:er behalf?
Point of Error Four
To the point of redundence, Kary Ramirez1, stat erne -nts are inadm
issible under the outcry exception rule -whenp the trans-la'te>r
did not/had not accurately translated the question and answers
yet admitted that''-'she- madifid^ the -is seies'sto "aid lri'the; interview
for the state'.'
P;y::tsw of statue 38.072 T.C.C.P. "outcry witness "shall be the
(6)
first person(does not make an exception for translation), shall
be the first person over the- age of 1 8 years of age ,.besides the
pr epatrator',' Ms.Alavaradd being the first person as the statute <?'
is clear and makes "no excp'ectlon "because- of the language barrier
Ms. Alvarado did not testify on the the behalf of either Nancy or
Kary Ramirez, as did Ms'. Ralph, which becomes hearsay with no
exceptions, but inadmissible of Legislature intent ,an d the .-'
Therefore, Appellants' point of error four, should be sustained.
Arrest the judgment of the c onv i c t i on.-.
Additional Facts
It is said, that during all of the interviews relating to" this.
case, Forensic interviewer Charlene Ralph "only spoke english1.'
Nancy & Kary Ramirez are Spanish speaking individuals, Spanish
being their primary language (purpose of translator) 'I
Ms. Raplh Forensic interviewer- for Hunt County Child Advocacy
Center (HCCAC') used Claudia Al'avardo whom is employed with the
Hunt County Sheriff 's' off ice as a clerk whom happens to be '•
hispanic by birth, she has no other special 'qu.iliti.es to assist
Ms. Raplh in translat ion ,if complaints are- bi-lingual as alleged •••
... why the translator,?
The state offered Ms.Raplh as an outcry witness under T.C.C.P.
art .3B.072(defense counsel did not object to preserve error)
another claim for constructive ineffective •assistance of counsel
in/of a long list ,(emphsis mine),which perj'ustlee my trial.
Ms. Alvarado stated on her accord that' she has no •f drmalCedu'eat^"--
ion ,training or qualifications as a'-bi-i-'-l'lngual translator and
had to modifiy the' questions & answers to aid the Interview for-
the state. Thus- denying Appellant a fair trial, to add further
injury and harm to Ap'pell ant ,no where in the record does it
indicate that this trial court " cert if ied ", Ms .Alvarado as an .-•-.
"exp-ert"" qualified to interprete in/of a Forensic interview in an
alleged child abuse:-case.
Let the record reflict a', misinterpretation video was also i,'.';::'.'''
admitted,which prejudice this Appellant. Ms. Alvarado neither
translated properly,, but' also modified' the .-questions & answers
of all parties involved in instant case. ' •
Ms.Raplh supposely asked complaint's open-ended que st ion s, some-
non-leading questions which brought back modified answers and
half-truths or no' truth at all 'as Ms'. Alvarado "-modified-answers
and questions to aid in the interview for 'the state.
With Ms. Alvarado's own-r te st imony to the jury she answered she
mislead the jury by explaining that she'substantially expounded
on what was asked by Ms. Raplh to make sure that Nancy & Kary
understood what was being a'ske'd'.
Standard of.Review;
An "Error"of this great magnitude affects a "substantial right
and injustice of this Appellant.especially;when an Appellant
has been denied a fair and just trial which affected the outcome
of the verdict, see, King V. State,953s.w .2d266-271 (Tex.Crim.App .
1997).
(7)
Application of Facts
Translation Statements
- of Law
It is said "Translated Statement" are admissible "-so long as the
statement quality under the hearsay rule exception;1'
It is clear that Ms. Raplh does not speak Spanish, therefore
not eligible underthe hearsay rule exception T.C.C. P.1 art. 38.072
Ms .Alavarado had "every reason ',''. motive ,to misle/ad or distort and?
make inaccurate translation she is a low—level clerk employee
by the Hunt Count Sheriff's office with"No Eduaction"in/of trans
lation skills,, and totally not qualified ,-to '(be an expert trans- ,.
l@tar~she herself admits "she had to modifly the translation"..',
qialified experts "do not modify1.' To'aidv the interveiw.
Ms.Alvarado has admitted several times on record she is not
qualifed, not educated, licensed or certifed in •spanis'h'/english
translation of Law. Ms. Alvarado has self 'admitted, she is ,-,
sometimes requested to translate for the ;Hunt County Shelff's
office,also that she takes liberties .with the translation?,
which can only serve to injure the dependent and cause perjudice.'
Because whatever to whomever was said was taken as fact which
only serve to negitively influence., distort and mislead the jury
and perjudice the out-come of this trial, see, Jonhson V .State ,
967s.w.2d410,417(TeX.Crim. App .1 99B) ;Motiila V. State, 78s .w .3d
352,355 (Tex. Crim. App.2000). also Cassidy V. State,149 s.w. 3d
712(Tex .Crim .App .2004) .
Toconsider admissibility of a translated statement, Four factors
mustbemet:
1. which party supplied the interpeter?(HCCAC&Sheriff dept.)
2.whether interpeter had motive to mislead or distort, yes.
3.AssesS interpeters qualific atl ons (n.o ).
4. Whether action was taken to subsquently assure the translator
was consistent with questins & 'answers being translated. (no) .
see, Saawdra V.5tate,29 7s.w.3d342,3 4B (Tex. Crim .App .200B) .
Application of Facts'
Outcry Hearsay Exception
It is said that Child Forensic interviewers are not norally
admissible ,due to the"Hearsay Rule'.' However., when it meets the
requirements(this applicatin does not) which is an abuse of 11 .-:
Discreetion 'hv the trial court, as the Fourpabdve requirements
were no tr'm,e:'t:•>' Accor din g to T.C.C.P. art. 38.072,"the first person
over the a'ge'of 18 years was not Ms.Raplh but Ms . Alvarado.
The chain of out cry goes like this: "Nancy Ramirez first told
her friend&schoolmate Eyelyn Regelado, whom tells- her mother
Maribel Regelado.whmo tells her pastor Carlos Mendoza,togther
they report it to the School Counselor, Debra Floyd, whom
decides to call the Texas Depart, of Family and Protective
services(here after known as "CPS") Neither complaintant Nancy
or Kary Ramirez tells-; or reports this allaged inciid-nt (makes out
cry )to CPS investigator, Aisha Coutain, Therfori,Ms. Coutain
arranges with HCC'AC to have the girls the following day, u ..
(B).
At which point Ms. Raplh met with the girls the following day
at the HuntCounty Sheriff's Office so she could provide a
interpEeter whom speaks spanish/english, Ms.Alvarado took the
call,and made herself available.
It is alleged complainant's made a statement in a discernible
manner alleging a sexual offense(or did they, reason doubt)
or did Ms.Alvardo misunderstand? it has already been determined
that Ms. Alavardo took liberties with the translatins. see,
(RR.9 :1 57-1 58) .
Ms.Alavardo knew what -was at stake for herself and the Hunt
County Sheiffls Office. Ms.Alvarado kfieiils'tfiereRthere was a
possiftle promotion for a job well done(conviction of the Appeal-
ant)she had gygry thing tq^gain and notingto lose by distorting
the facts misleading the jury"taking liberties of the true
facts',' distorting (complainant's)answers by her own admissions
under oath, see, Garcia V. St ate,792s.w.2d BB(Tex.Crim.App. 1 990)
and Tex.Code Crim. Proc. art.38.07282(a)(3).
T.C.C.P. art. 3B.072 suspends the hearsay rule and allows what's
commonly refered to as "outcry" to testify on the behalf of
childern of sexual abuse. ^"Provisions of this statute include
notice and hearsay requirement's" are mandantory and must be
complied with in order for the the statue to be admissible over
the hearsay o-bjection (state' 'did not meet the requirements) .
see, Long V . St ate ,BBOsi^w .2d 545 ,547 (Tex .Crim . App.1990);
Gay V.State, 9Bs.w.3d 864,866 Tex.APP.Hous. [1st .Dist .] 199Bpet.
ref'd.)
The Defendent must be given notice of content and scope. ID.
Statement to be more then a mere allus|on in general to a alleged
sexual abuse, general allusions are vague and arbitrary, see,
Thomas V. State, 155s .w .3d138 .140 (Tex.APP. Texarkanal999,pet.
Ref'd.) Notice- must describe offense in discern able manner,
see,Garcia V.State,792s.w.2d88,91 Tex .Crim .Apo .1990) .
No one question the skills of Ms .Alvarado,. as ifac r.Sourt certified
Interpreter, this court did not go through Ms.Raplh's credent
ial's either to demonsrate the importance of how tointerview
a child of sexual abuse, and the significance of a-'s'king opened-
ended questions. However,Ms.Alvardo on a number of occassions
self adimitted she took"liberties" with the translation onher
own accord, thereby nullifying and undermining the Law and the
standards of the statdtessofft.C.C.P. art.3B.072 and the total
significance of the Foernsic interview there canbbe no assurance
that this jury or anyone else this Appelant was tia-mie-d by Ms.
Alavrado's modified translations. hMt^ied
It's on record that Appellant objected tPtfthe Spanish portion
of the video being admitted on the grounds that it was not
transcribed when offered by the state, which violates statue,
of T.C.C.P. art. 3B.072 which clearly states "Defendant must be
givemi adquent notice of the content and scope", to prevent
violation of Due Process of the Fifth & Fourteenth amendment
of the United States Constitution.
(9)
A Def e ndan t ha s a righ t to know,to be informed what he's charged
with , in 0 r der to prep are for an affirmative defense, see.
Garica ftv.s ta te ,792 s . w . 2d88 ,91 (Tex.Crim. App.1990).
The t rial uled the objection, the Sixth Court of
c ou rt o verr
Appeal s st ated e r r or w as "not presevred frfr viewing',' video was
admitt ed a nd s hown to the jury, which prejudiced the verdict,
as it w a s oneb i te of t h e p o i s o n a p p 1 e .
Let it be note d fo r th e record that Ms.Alvarado's translation
for Ms .Ral ph , shou Id n pt have been admitted as the state failed
to pro vide a"n_ai'tr al I interpreter','to Assure the "outcry" statement
en j oye d " N n o 'j mo ti v-e "t o be sircu m~ve dted,distorted or misapplied
for tr ansl ator s ow n personal benefit.
The inabil ity , n o attempt by the state, to obtain a fair and
impartial , neu tra'l ,1nterpr e't- e r e i(: s e e tf o o t n o t e (3 ) of the original
Appellant b-rT'l'e f as it states on pg. 29 of44) If this cqux.t finds
that Ms.Al v a r a do d id not had,not acted in the capacity of a
neutral pa rty as argued in points of error one & t w q , ,th e n by
statue Ms . Ala vard o becomes the "outcry" and not Ms.Raplh by
default, d ue t o th e fact'that both Nancy & Kary Ramirez spoke
of the all eged inc ident only in Spanish directly to Ms. Alvarado,
had they t he a bili ty to speak to Ms.Raplh she could/would not
have neede d an int erpreter to understand.
The testim ony of b oth Nancy & Kary Ramirez the modified trans-
lated stat e m e n ts t o Ms.Raplh is actually third party hearsay
outside th e he arsa y exception rule.and harfn1 displayed of this
admission lays in the bolster of the girls testimony,
For these fact s an d admissions this court should sustain points
0 f ?. e r'ror T hree and Four, arrest, the judgment.y sentence and con-
viction in alt erti ve Reverse and Remand for new trial.
Point of Error Five
Appellant was perjudiced by continued appointment of counsel
and trial failure to appoint new counsel when their was a
confict of interest under disciplinary rules ofthe State Bar
bewteen Appellant counsel and Defendant.
Additional Facts
Defense trial counsel had Defendent sign a sworn application
in request for cBmmurtiity supervision in which Appellant was not
eligible,trial counsel should/could have maed the effort to
assure self and client about eligibility as it would simply a
mini'sfbrial duty as it's attorneys duty to investigate all the
issuses pertaining to his/her clients.
Standard of Review
Once the Attorney finds themselfs in confict with a client,
they shouid withdraw from representipn immediately the court
shall than permit Attorney to withdraw so the court can assure
the Defendent a fair trial, see,In Re Posada USA Inc. inQs.UJ.3d
254 at2.59(Tex .App . San Antonio 2001 pet.granted) ..-,.".-:;.-y v -.-;
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Standard of Review
The "Brady Rule" doe:s-. (lot. differ from "suppression of the evid-t:
ence by the state or it's agents, it simply states "All"
exculpatory evidence shall be made available to the Defense
otherwise it violates the Fifth&Fourteenth Amendments of the
United States Constitution, Due Process, where evidence is mater
ial;', of guilt/inno.qence or punishment, irrespective of good
faith or bad of the prosection. see, Brady V.Maryland,373 U.S.
B7, B3 S.CT.1194. A full and complete disclosure by the state
it's agents is.necessary to avoid Sri unfair trial.
Also see, T.C.C;-'P. art.2.01 "not to convict, but to see justice
is done'.' A prosecutor shall not suppress evidence or secrete
witnesses, capable of establishing the innocence of the accused,
"quote from:Texas District and County Attorney's Association.
Brady and Bagley ,supra , Provide it's a "re versatile error"when:
Tl the state/it's agents fail to disclose exculpatory evidence
regardless of procution 's good or bad inteltions.
2: withheld evidence that is favorable to the- defense.
3: evidence which is material,there is a reasonable probability
had the evidence been disclosed the outcome of the trial would
have come out different, see, Brady V. Maryland,3 73 U.S. 87,;
U.S. V.Bagley ,473U.S. 667, 1 OSS .CT.3375(1990) .
State prosecution it's agen t 's( include HCC AC ),h a ve a duty to of
Brady evidenee ,known to others acting for the state's behalf in
a particular- 'case, see, Ky 1 e s V .UJ h i 11 e y ,51 4 U .5 .419 ,4 37-3B ,
115S.CT;1555(1995).
The state It's agents have a duty to produce recordings of
interviews ,videos , should they contain ex.Gulpatory/mitigating
materials. This Appellant filed motion requesting the production
of any recordings w.|ich secures a ruling by the- court as production
materials see, Garica V.State,B71s.w.2 79,2B3(Tex.App.-El Paso 1994)
A continuance, once Brady material is disclosed at trial a
defendent is assured adquate protection of Due Process, see,
Mates, 941 s.w.2d||.7 ,364 (Tex .App .Waco" 1997) ; Payne V. State,51 6s.w.
-2d'675,677 (TEX.Crim. App.1974). "NO MIGIC WORDS'^',' are needed
to ask for a continuance, see, Ford V. State,305 s.w. 3d533
TEX.Crim. App.2009. An objection(in slant case)is considered in
content in which the complaint was made and the partie's share
an understanding of the complaint at the time, see, Lankston V.
State,B27s.w.2d907,911 (Tex . Crim .AppVl 992) .
Application of Facts
Although it's alleged that HCCAC is a neutral party.
They are for all practicle purposes an agent for the state as
they collect evidence at direction Df!;^ Enforcement for the sole
benefit of the state prosection, although it may be a direct
arm of the state (funding must come from the state or other
federal agencies to function), as for the purposes of Brady
ma teiial,they are required to turn over all f,vidence that maybe
ting affects especilly
exculpatory, or have mitigating espec upon request
b^ the state or subpoena from the Defense. Id
(12)
Defense requested an opportunity for an expert to review Oazmin
Costello's video, trial court denied request for a continuence-
or expert witness.
Had alleged complainant's video been timely released in accord
ance with statue, this Appellant could/would have showen a fab
rication which was/is the crux of this Defense.
Defense counsel had to/forced to change his Legal strategy , due
to denial to denial to withdrawal ,1 ack of Brady material ,for -L-
trial, and cross-examination ,denial continuance,other mitigation
factors. Appellant was still incapable of getting a fair trial.
2:Failed to request a dontinuence when Brady material was
finally became apparent at trial.
Standard of review
Under the Sixth Amendment the Fourteen Amendment of the United
States Contitution, all Defendent's are entitled to "reason
able" assistance of counsel, see,U.S. Confct. Amend.6&14th.
StrictlandV. Maryland,466U .S.. 696(1984) ;HendersonV .State ,
726s .w .2d53 ,57-61 (Tex .Crim .App .1986) .
L e g a1 Background
A lawyer must havea firm command on the facts and issues of
thier case. The govering laws before he can ren der reasonable
effective assistance of counsel.
May the record reflict greatly in this respect. see,Ex. parte
Duffy,607s.w.2d507,514n.14,519(Tex.Crim.App.198 0).
Trial counsel has an.obligation to his client t o make a
reasonable attempt at investigation every fact of every case.
As one never knows which fact may just be the o ne to make
y'rjfr case. Is it not better to safe than soory later^
This is only a ministrial that will only take a second, see,
LJigginsV .Smith , 539U .S .51 0 ,5 21 -22 (200 3 ) ; Ex Par te Briggs,1B7
s.w.3d 458,469 (Tex.Crim. App.2005).
Trial counsel can make the decision to limit hi s investigatioj,
Although it cheapens his obligation to his die nt and violates
the attorney's ethics code, "Can it really be as certained that
it would/could be wasteful to fully investigate %'i,the issues .
No investigation can be said to be wasteful,as it is better to
know all of the facts then to surprized by the unknown .
In, according to the Texas Rules of bar: "A defe ndent has a
right to effective assistence of counsel which include but no
less than making affirmative decision based on correct information
which are personal to the client, see,Ex parte Martinez,330s.w .
3d 891,900 (Tex.CRIM.App.2011 ) ; Jackson V. State ,766s.w.2d_5 04,
50B(Tex.Crim.App.19B5). The Defense counsel has a duty to v; exert
his efforts to ensure his client decisions are based on correct
information about the law.
(13).
Caus ing on client to CO mmit aggra vat e d pe rjury certainly
cap ot be said Irto be in e i ther of th ier best interest(emphsis
mine ) . see , Ex parte LJ 11 s o n_, 72 5s .w .2 d72 , 74 ( Tex. Crim .App .1987) .
Surl y this c o u l d not have been comp t Bn t advi se. Alawyer frjus.t give
act in a r e aso nable reliab le a nd ad v ersi al m anner and substa-
ntia lly as sis t his c lien t to s tay ou t of jai 1 not commit then
f uth er . Wh e the
^\
r tria 1 coun s el was re a s o n able effective is thus
jugd. ed by the terms of the rep r es r| n t ion . Thi s counsel had this
def e ndent indi cted o n a ne w ch arget'o f ag gava ted perjury unbe-
know ing to the cl ien t , if this does not show a construtive
deni al of as s i s t antie of CO unse 1 , the re i sn ' t any.
All allega tipfei, must be fir mly rooted in the recordyand not base
on m ere sp ecu! ation. The t his ins tan ce I ' 11 allow the record
to s peak f or i t 's s elf. s ee ,B one V . Sta te,7 75s.w.3d82B,B35(Tex.
Crim . App.2 007)
Appe 11 ant can not b to jus tify
the trial counsel's motives
e gin
at t rial . Tria 1'rid e f i cienpy's alone are an affirm-
cou nsel ' s
ti ve demon srat ion f or the r e c o rd.See.Mata V.State, 226s.w.3d
425, 430(Te x.Cr im .Ap p.2007 ).
This revie w of tria 1 coun sel p erform ance will show that no r e a ^
sona ble tr ial strat egy co uld j ustify counsel's performance.
see . Andrew f_1 '&9. s . w . 3 d102-0 3.
This ""IrJpeT lant cour t sure ly
ca n<pers ume that defense counsel's
acti ons fa 11 w ithin the n of eff ective represent ion.
orms
Is it the norm for Defens e c o u nsel it, o obtain a new indictment
for his 'ip'l ien t , I c ertain ly pr ay not !
Conclusion
For these and other reasons,this court should sustain all points,
of error and arrest and vacate this conviction,sentence. In
alternative this Honorable court should reverse and remand, for
a new trial.
Prayer
Wherefore all premises considered,this Appellant prays to
almighty God, before this Honorable court, htat it shall sus
tain all points of error, one,two, three ,four, five, six,
seven. To include but no less than constructive denial of
assistance of counsel at a very critical point of my trial.
May this Honoable court grant relief and arrest and vacate
the Judgment,conviction,sentence,in alternative,
Appellant, further prays for any and all other relief this A
Appellant may be entitled too. So,';hel*pr,-me' .God !
Executed on thisig day of
October 2015. Respe cJbf.u lly
0|diL io Torres Palomo
T^D.E.0.#192 3341
^01C'§?^ilyU3i?
Beeville,Texas 78102
(14)
Cerificate of Sevice
I hearby certify to mailing a copyof this Petition foi
Discretionary Review to the Appellant Divison of The Hunt
County District Attorney's Office at 2507 Lee Street,
Greenville, Texas 75403-0041.
Executed on this 19th , day of
October 201 5. respectfully submitted
fiiJmr^
orres Palomo
T.D.C.0.#1923341
Mc.Connell Unit
3001 S. Emily dr.
Beeville, Texas 78102
Unsworn Declaration
I, Juilo Torres Palomo, T.D.C.0.# 1923341, hereby declare
urjder the penalties of perjury that I am presently inconfine-
ment at the William G. Mc.Connell Unit at 3001 S. Emily dr.
Beeville ,Texas 78102. I further declare that facts and state
ments are true and correct to the best of my knowlegde and fact
so help me God. Amen.
Palomo
Executed on this19 day of
0ctgber2015 T. D.C.Oj#19 2 3341
Mc . Connell Unit
3001 S. Emily dr.
Beeville, Texas 78102
(15).