The opinion
-.
JOANNA STATON
District Clerk
BELL COUNTY, TEXAS
BELL COUNTY JUSTICE COMPLEX
1201 Huey Road • P. 0. Box 909 • Belton, Texas 76513
(254) 933-5197 • Fax (254) 933-5199
Joanna. Staton@ co. bell. tx. us • www. bellcountydistrictclerk. org
This document contains some
pages that are of poor 4uality
August 12, 2015 at the time of imaging.
ABEL ACOSTA
CLERK OF CRIMINAL APPEALS
\RECE~VED ~ij\ij
P.O. BOX 12308
AUSTIN, TX 78711
!COURT OF CRIMINAL APPEALS
NO: 57558-D 61 I(~ 1 ') 2015
EX PARTE
THOMAS RAYMOND CARR
•.·.~
DEAR MR. ACOSTA:
ENCLOSED PLEASE FIND THE ORIGINAL TRANSCRIPT IN THE ABOVE ENTITLED
AND NUMBERED CAUSE.
IF WE CAN BE OF FURTHERASSISTANCE, LET US KNOW.
SINCERELY,
~-
••• ,:,o·
• Postconviction Writ of Habeas Corpus
Cause No. 57558-D
.1
EX PARTE
THOMAS RAYMOND CARR
In the Judicial Courts
VS Of
The State of Texas Bell County, Texas
Delivered to the Court of Criminal Appeals, Austin, Texas on the 12th day of August, 2015 .
• Joanna Staton
District Clerk
Bell C unty, Texas
Filed in the Court of Criminal Appeals, Austin, Texas on the _ _ day of _ _ _ _ __
2015 .
•
• Ex Parte
THOMAS RAYMOND CARR
Application for Writ of Habeas Corpus
TRIAL COURT WRIT NO. FR 57558-D
CLERKS SUMMARY SHEET
APPLICANTS NAME: THOMAS RAYMOND CARR
(As reflected on the Judgment)
OFFENSE: AGGRAVATED SEXUAL ASSAULT
(As reflected on the Judgment)
CAUSE NO: FR57558
(As reflected in Judgment)
SENTENCE: THIRTY (30) YEARS TDCJ;ID
(As described on Judgment)
PLEA: (X) GUlLTY ( ) NOLO CONTENDERE ( ) NOT GUlLTY
•
TRIAL DATE: 11/21/2006
(Date upon which sentence was imposed)
JUDGE'S NAME: HONORABLE JUDGE MARTHA J TRUDO
(Judge Presiding at Trial)
APPEAL NO: N/A (If Applicable)
CITATION TO OPINION: N/A S.W.2d _ _
(If Applicable)
HEARING HELD: YES X NO
(Pertaining to the Application for Writ)
FINDINGS & CONCLUSIONS FILED: _ __,X:...!___ _ YES _ _ _ _ NO
(Pertaining to the Application for Writ)
RECOMMENDATION: GRANT_DENY__ NONE _x_DISMISS
(Trial Court's recommendation regarding the Application)
JUDGE'S NAME: HONORABLE JUDGE MARTH J TRUDO
(Judge Presiding at Habeas Proceeding)
•
No. 57558-D
• EX PARTE
THOMAS RAYMOND CARR
X
X
X
IN THE 264TH DISTRICT COURT
JUDICIAL DISTRICT
BELLCOUNTY, TEXAS
I
INDEX
VOLUME PAGE
Clerk's Report.............. ;................................................................................................... I
J
Index .................... :........................................................................................... ~......... II
Applicant's Petition................................................................................................... 1
State's Answer........................................................................................................... 272
Motion to Enter Proposed Findings of Fact and Conclusions of Law....................... 274
Findings of Fact and Conclusions of Law of the Court............................................. 276
Clerk's Certificate that Record is True and Correct.................................................. 280
•
•
FILED
• COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS ZD 15
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
AUG -4 AH II: 02
INSTRUCTIONS
1. You must use the complete form, which begins on the following page, t lie an
application for a writ of habeas corpus seeking relief from a final felony conviction
under Article 11.07 of the Code of Criminal Procedure. (This form t.s not for death-
penalty cases, probated sentences which have not been revoked, or misdemeanors.)
2. The district clerk of the county in which you were convicted will make this form
available to you, on request, without charge.
3. You must file the entire writ application form, including those sections that do not
apply to you. If any pages are missing from the form, or if the questions have been
renumbered or omitted, your entire application may be dismissed as non-compliant.
4. You must make a separate application on a separate form for each judgment of
conviction you seek relief from. Even if the judgments were entered in the same
court on the same day, you must make a separate application for each one.
•
5. Answer every item that applies to you on the form. Do not attach any additional
pages for any item.
6. You must include all grounds for relief on the application form as provided by the
instructions under item 17. You must also briefly summarize the facts of your claim
on the application form as provided by the instructions under item 17. Each ground
shall begin on a new page, and the recitation of tbe facts supporting the ground shall
be no longer than the two pages provided for the claim in the form.
7. Legal citations and arguments may be made in a separate memorandum that
complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000
words if computer-generated or 50 pages if not.
8. You must verify the application by signing either the Oath Before Notary Public or
the Inmate's Declaration, which are at the end ofthis form on pages;ll and 12. You
may be prosecuted and convicted for aggravated perjury if you make any false
statement of a material fact in this application.
9. When the application is fully completed, mail the original to the district clerk of the
county of conviction. Keep a copy of the application for your records.
10. You must notify the district clerk of the county of conviction of any change in
address after you have filed your application .
•
FILED
• Case No. _ _ _ _ _ __
(The Clerk of the convicting court wi 11 till this I ine in}O 15 AUG -4 AH II: 02
APPLICATION FOR A WRIT OF HABEAS CORPtfS-=,t-~~F
SEEKING RELIEF FROM FINAL FELONY CONVICT!
lJNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Thomas Raymond Carr
DATEOFBIRTH:~OS~/~14~/~19~6~7 ______________________________________
PLACE OF CONFINEMENT: Texas Department of Criminal Justice, Hughes Unit, Route 2
~
Box 4400 Gatesville Texas 76528
TDCJ-CID NUMBER: -><-0.._14=0~59"-=3'-"-l________ SID NUMBER: ~03:!..:5~6~30~8~0~----
(1) · . This applicant concerns (check all that apply):
•
0 a conviction 0 parole
0 a sentence D mandatory supen·ision
D time credit 0 out-of-time appeal or petition for
discretionary review
(2) What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
264 1h District Court ofBell County, Texas
(3) What was the case number in the trial court?
57 558
(4) What was the name of the trial judge?
The Honorable Martha J. Trudo
• 1
• (5) Were you represented by counsel? If yes, provide the attorney's name:
Court appointed counsel, John Robert Bingham, Teddy L. Potter, Esq,. since retired for
health/disciplinary reason (Ethics Decision Included in prior Application), and Charles
"Monty" Montgomery, Esq.
(6) What was the date that the judgment was entered?
November 21 2006
(7) For what offense were you convicted and what was the sentence?
Aggravated Sexual Assault- First Degree Felony: "Did ... cause a Dildo to ... penetrate the
anus of ... a child less than 17 years of age and ... operated in concert vJith Tammy Bishop
during the same criminal episode, and ... did ... administer a controlled substance to the
said J M ... " Sentence: Thirty {30) years
(8) If you were sentenced on more than one countofan indictment in the same court at
• the same time, what counts were you convicted of and what was the sentence in each
court?
N/A
(9) What was the plea you entered? (check one)
0 guilty-open plea guilty-plea bargain
0 not guilty 0 nolo contendere/ no contest
If you entered different pleas count in a multi-count indictment, please explain:
(10) What kind of trial did you have?
0 no jury 0 jury for guilt and punishment
0 jury for guilt, judge for p~nishment
(11) Did you testify at trial? If yes, at what phase of trial did you testify?
• Yes. Applicant's trial counsel called him to the stand to plea and at sentencing.
2
• (12) Did you appeal from the judgment of conviction?
0 yes 0no
Jf you did appeal, answer the foJiowing questions:
(A) What court of appeals did you appeal t o ? - - - - - - - - - - - - - -
(B) What was the case number? - - - - - - - - - - - - - - - - - - -
(C)_ Were you represented by counsel on appeal? If yes, provide the attorney's
name:
(D)_What was the decision and the date of the decision?-----------
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
0 yes ~ no
If you did file a petition for discretionary review, answer the following questions:
•
(A) What was the cause number?
(B)_ What was the decision and the date of the decision?
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedures challenging this conviction?
0 yes 0 no
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals' writ number? WR-79,620-02 ,WR-79,620-04,
and WR-79,620-06.
(B) What was the decision and the date of the decision? Dismissed for non- compliance. pro
se not signed, WR-79,620-02 on 09/11/2013. Denied the relief without written opinion on WR-
79,620-04 on 3/26/2014. Dismissed for non-compliance on WR- 79,620-06 on 7/08/15.
~Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.
•
The medical records received from the TDCJ on June 24, 2014 did not have the Uniform Health
Status Update dated 12/26/06. The decision on WR-79,620-04 was prior to receiving the records.
3
• Previously. The Bell County, Texas jail indicated that it had no records. The above mentioned
status update was not included in any records, previously. Habeas counsel met with Applicant on
October l, 2014. The Texas Uniform Health Status Update form was acquired from the records
Department at TDCJ prison system by happenstance. Applicant asked about a document listed as
''unavailable to him". A clerk in the prison brought the afilled out" Texas Uniform Health Update
dated 12/26/2006 to him. The "WAREHOUSE 337600" box- containing hundreds, if not
thousands, of pages of medical records did not contain the update. It was not included in the
response to the "Chapter 64" motion. though other medial information was. Competency was
discussed in the prior application for writ of habeas corpus, but did not show the probability that
the medication was given ABOVE the prescribed amount and ABOVE the FDA
recommended maximum dosage. The claim based on lack of voluntary and knowingly plea, as it
relates to competency at the time ofthe plea, was not presented earlier, because neither Applicant,
• nor his attorney, was able to obtain from update form showing the medication dosage for
Applicant at or near the time of his plea.
A statement was recently obtained from Robert 0. "Buck" Harris. the attorney for Applicant's
wife. The statement clearly shows that there was a deal not to prosecute the wife except for one
drug charge. Applicant's medication and the prosecutoria! misconduct show coercion and a lack of
a knowing and voluntary plea.
Applicant's counsel made repeated attempts to contact Applicant's trial counsel since early 2013.
Applicant's habeas corpus counsel finally received a three ring binder of what purports to be trial
counsel's complete file and notes.
Applicant's counsel was unaware of the victims' medical records containing evidence of the lack of
blood tests and of J M 's use of a prescription amphetamine until the response by the State to a
Chapter 64 motion. Also, the victims' hospital records were not on the court's docket sheet. Counsel
• learn that the records had been sealed, recently. The clerk's office indicated that a court order was
4
• needed to see the records, but ultimately turned over the records. The above proves the claims for
incompetency, lack of a knowing and voluntary plea. coercion. and ineffective assistance of counsel.
(15) Do you currently have any petition or appeal pending in any other state or federal
Court?
0 yes 0 no
If you answered yes, please provide the name of the court and the case number:
(16) If you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)
0 yes 0 no
If you answered yes, answer the following questions:
(A) What date did you present the claim?
• (B) Did you receive a decision and, if yes, what was the date of the decision'!
If you answered no, please explain why you have not submitted your claim:
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. If your grounds and brief summary of the facts have not been
presented on the form application, the Court will not consider your grounds.
If you have more than four grounds, use pages 14 and 15 of the form, which you
may copy as many times as needed to give you a separate page for each ground, with
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of law that were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are
•
challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum
5
• GROUND ONE:
Applicant's plea was not voluntary and knowing and was coerced under the 6 1h
Amendment because the prosecutor lied about key facts involving circumstances about the
plea and issued threats of continued prosecution.
FACTS SUPPORTING GROUND ONE:
I. Tammy Bishop, Applicant's wife, actually committed the sexual assault on J M
by shoving a dildo in his anus after the two had a sexual relationship. Applicant had no
physical or sexual contact with anyone that claimed to be assaulted, as evident by the
statements recently obtained from responses to a chapter 64 motion. See Exhibit I.
2. Trial counsel, Charles Montgomery, made statements at a hearing to the effect that
Tammy Bishop was let totally off the hook, was in prison on a light sentence, and was
not being prosecuted at all for rape of juveniles. The prosecutor, Mark Kimball, as
• an officer of the court, stated at that hearing, "That is a lie." He then stated "It's a
lie before the court." See. Exhibit 2.
3. The prosecutor, Mark Kimball, again, as an officer of the court, stated at Tammy
Bishop's plea hearing on November 30, 2005, "I will let the court know that there
are further charges that will be filed against Ms. Bishop. She is well aware of it."
He further says "This, by no means, is the end of cases against Ms. Bishop, and she
is well aware of it."
To this day, she has been convicted of only of one delivery of a controlled substance to
minor charge. See Exhibit 3.
4. At Applicant's bond hearing, Mr. Kimball stated "And every time he [Applicant] gets
closed to getting out of jail, "I'm going to file case after case after case. 1 have
seventeen different cases." See Exhibit 4 .
• 6 .,
• 5. Mr. Kimball asked the following question at Applicant's plea hearing on November 21,
2006, "One thing you mentioned yesterday ... what's going to happen to my wife and
you understand what happens to your wife is up to the State of Texas and the courts and
I absolutely refuse to answer that question" See Exhibit 5.
6. Applicant's counsel has now learned that Mr. Kimball and the wife's attorney,
Robert 0. "Buck" Harris. had an agreement to pursue only one delivery of a controlled
substance to a minor charge. Attached is a statement from Buck Harris saying "As part
of the plea, the prosecutor agreed to NOT PROCEED to indict Ms. Bishop on any
sexua.l assault charge or any other drug charge." He also says "The prosecutor never
madeany demand to plead guilty to any sexual assault charge." See Exhibit 6. This
evidence is completely at odds with prosecutor Kimball's dire and false statements on
the hearing records. Based on Applicant's clear concerns about his rapist wife's deal
and his medication over dosage, as shown below, his plea was not knowing and
voluntary and was coerced.
7. Based on Kimball's statements. Applicant believed that his wife, Tammy Bishop, was
being prosecuted for aggravated sexual assault just like he was. In reality, Tammy
Bishop was "off the hook" for anything other than on drug conviction. Mr. Kimball
sees how important the wife's plea is to Applicant yet still misleads Applicant at
Applicant's plea hearing by not disclosing the agreement.
• 7
• GROUND TWO:
The prosecutor lied about having "blood tests" showing that the alleged victims had
taken methamphetamines. The testing showed that, possibly only amphetamines, not
methamphetamines, were present.
FACTS SUPPORTING GROUND TWO:
1. The affidavit for Arrest and Complaint signed by Detective Mike Simmons was
filed on July 15, 2004 to arrest Applicant on the delivery of the controlled substance
methamphetamine. Detective Simmons states "I have been further informed by the
parents of all three juveniles that the children tested positive for methamphetamine."
The Bell County prosecutor, Mark Kimball, stated that "blood tests are in evidence,"
under the falsehood that the tests showed methamphetamines. See Exhibit 7 and 8
2. ln facts, no blood tests were performed. The alleged victims were tested only once at
Metroplex Hospital late in the evening on June 2 I, 2004 or possibly June 22, 2004.
Only standard urinalysis drug screen test were done, not blood tests as stated by Mark
Kimball. The tests were positive for amphetamines and THC. No tests indicated
methamphetamines. This is true, even though the victims were tested two days after the
incident date. The literature indicates that methamphetamines could show up in the
urine within that time period, if proper testing procedures were done. See Exhibit 9 and
Exhibit 10. Additionally, the Metroplex hospital records show that Je M was
taking a prescription drug, Concerta, an amphetamine. See Exhibit 9. This supported
the Applicant's allegations that the victims were crushing up pills and using them. Trial
counsel, Montgomery, should have reviewed the hospital records. The records would
have been available to him. He never discussed this with Applicant. This shows
ineffective assistance of counsel, lack of a knowing and voluntary plea, and coercion .
• 8
• GROUND THREE:
Applicant's trial counsel, Charles Montgomery, lied about researching the law and
explaining the law to Applicant. Trial counsel's representation of Applicant over the
entire representation shows ineffective assistance of counsel. Applicant now has tria I
counsel's notes after repeated requests.
FACTS SUPPORTING GROUND THREE:
I. The indictments and the amended indictment are so confusing that you cannot understand
them. Mr. Montgomery never explained the indictments or the aggravated sexual assault
allegations to Applicant. See Exhibit 11.
2. Mr. Montgomery was ordered by the trial court to tile a court-ordered affidavit.
Montgomery was to explain his research of the applicable law. He failed to answer any
important questions for the court. He goes into a rant about everything except the law of
aggravated sexual assault and of delivery of a controlled substance. If he could not even
explain the law to the trial court, then he certainly did not have the ability to explain it to
Applicant. See Exhibit 12.
3. Mr. Montgomery did not know the law. Mr. Montgomery eventually sent Applicant's
habeas corpus counsel his entire file in a three ring binder. The binder only had two-pages
of documents on the law. It consisted of portions of the U.S. and Texas Constitution and of
the severance of trial provisions of the Texas Code of Criminal Procedure. See Exhibit 13
and Exhibit 14.
4. Mr. Montgomery's file shows that he recommended filing an "interlocutory" appeal. He
based this appeal recommendation on supposedly errors at the 12re trial motion stage.
Mr. Montgomery stated in the court ordered affidavit that he was never going to tile an
appeal; however, Mr. Montgomery's own notes contradict this position. See Exhibit 15.
9
ll>
• GROUND FOUR:
Applicant could not enter a voluntary and knowing plea due to his incompetence at the time
of his plea hearing. Applicant was being treated with 1200 rng of Seroquel at the time.
FACTS SUPPORTING GROUND FOUR:
I. At the time of Applicant's plea, an unnamed medical provider was dosing Applicant with
1200 mg daily of an antipsychotic drug, Seroquel. The Texas Uniform Health Status
Update shows that Applicant was prescribed 200 mgT g. am., which means one 200 mg
does before noon, and 200mg TTTTI q.h.s, which means five 200 mg doses at bedtime.
See Exhibit 16 and the list of medical abbreviations in Exhibit 17.
The prescribed amount far exceeds the 800 mg daily recommended maximum dosage in the
literature. The literature indicates that side effects of the drug could include dizziness,
drowsiness, altered mental status, confusion, and other potential complications. These
• severe side effects are for the recommended dosage at a maximum of 800 mg daily.
Applicant was receiving 1200 mg daily. See Exhibit 16 and 17. _ _ _ _ _ _ _ __
2. Frank Pugliese, Ph.D, a forensic psychologist, appointed by the trial court a_QQarcntly on
Montgomery's request, determined Applicant incompetent. Dr. Pugliese found that
Applicant was delusional and hallucinating to the point that it resulted in impaired
judgment and ineffective communication with Montgomery. According to Pugliese,
competency restoration included adjusting his medication needs. The adjustment would be
appropriately addressed in a psychiatric facility. See Exhibit 18.
3. The trial court ordered Applicant to be committed to North Texas State Hospital. The
order included assessing whether he could be restored to competency and if he had a
mental illness. Joseph Black M.D. at the facility eventually sent a report indicating that
Applicant's competency was restored. Joseph Black M.D. See Exhibit 19 .
• 10
IJ
• Dr. Black's report does not indicate that he ever interviewed Applicant after the initial
admission. Instead, B. Thomas Gray, Ph.D., a psychologist, did the entire evaluation. He
found Applicant to be malingering. At the same time, he says that it is "quite
important" for Applicant to take his psychoactive medication. He also states that it is
unclear whether Applicant needs the medication to maintain trial competency. It was at
this facility that Dr. Black switched Applicant from a previous antipsychotic medication to
800 mg daily of Seroguel. See Exhibit 19 .
•
• 11
)8
• GROUND FIVE:
Applicant could not have been found guilty under the aggravated sexual assault statute
because no "date rape" drug was administered.
FACTS SUPPORTING GROUND FIVE:
1. Applicant was indicated for aggravated sexual assault with one of the aggravating
factors being the administration of a "date rape" drug to the alleged victim. See Exhibit II
2. The legislative history of the statute makes it clear that Methamphetamines are not
included as an aggravating factor and are not defined as "date rape" drug. See
Memorandum of Law.
3. The Metroplex Hospital Records of the victims show that NO "date rape" drug was
found in their systems. Additionally, the statements ofthe victims and of Tammy
Bishop show that no one was administered a "date rape" drug. See Exhibit I and
• Exhibit 9.
-----------------------------···--·-
• 12
• GROUND SIX:
Applicant could not have been found guilty under the aggravated sexual assault statute
because he did not "act in concert" with Tammy Bishop.
FACTS SUPPORTING GROUND SIX:
I. Applicant was indicted for aggravated sexual assault with one of the aggravating
factors being that he acted in concert with Tammy Bishop. The statute provides that
Applicant must I) cause the penetration of the anus ofthe victim and 2) act in concert
with another assailant who causes the penetration of the anus of the same victim. See
Exhibit II.
2. The legislative history of the statute indicates that this aggravating factor was added for
"gang rape" situations. The history shows that the intent was to stop multiple rapists
situations. See Memorandum of Law .
• 3. After obtaining the statements of the alleged victims and of Tammy Bishop, it is clear
that there were not multiple rapists, here. The only rapist was Tammy Bishop. She was
the only person to have sex with any of the victims. She was the only person to have
actual physical contact with the victims by dildoing them in their anuses. See Exhibit __L
• 13
• GROUND SEVEN:
Applicant was threatened with repeated prosecutions because he exercised a legal right.
FACTS SUPPORTING GROUND SEVEN:
I. Applicant was almost certainly loaded up with 1200mg of an extremely strong
medication.
2. The Prosecutor had an "under-the-table" deal with Tammy Bishop, the wife, to which
he would never admit, even to the point of lying to the trial court.
3. Applicant's attorney heavily pressed Applicant to plead guilty to the bizarrely written
indictment based on the threats of successive prosecutions against Applicant and,
falsely as it turned out, Applicant's wife. The successive prosecutions were never going
to take place.
4. The Prosecutor admitted Applicant was concerned about his wife during the
• proceedings, but intentionally left the question about what would happen to
Applicant's wife unanswered. Mr. Kimball knew that would happen to the wife,
Tammy Bishop, but did not tell Applicant that she was not going to be prosecuted for
any sexual assault crimes .
• 14
16
• WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEDDING.
VERIFICATION
This application must be verified or it will be dismissed for non-compliance. For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the "Oath Before Notary Public" before a
notary public or the "inmate Declaration" without a notary public. If the inmate is represented by
a licensed attorney, the attorney may sign the "oath Before a Notary Public" as petitioner and then
complete "Petitioner's Information. A non-inmate applicant must sign the "Oath Before a Notary
Public" before a notary public unless he is represented by a licensed attorney, in which case the
attorney may sign the verification as petitioner.
A non-inmate non-attorney must sign the "Oath Before a Notary Public" before a
• notary public and must also complete "Petitioner's lnfonnation. An inmate petitioner must sign
either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration"
without a notary public and must also complete the appropriate "Petitioner's Information.
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF COR YELL
~vft. ~; J-
f ,
being duly sworn, under oath says "I am
the applicant /~cfrcle one) in this action and know the contents of the above
application for a writ of habeas corpus and, according to my belief, the facts stated in the
application are true.
f-P
SUBSCRIBED AND SWORN TO BEFORE ME THIS 3 DAY OF August 2015.
J~AM.a(~
•
,4:~.::::.~;;.. _ SfiAINA R. MEDFORD
£~,.~_,.:.. % Notary Put> lie. Stole or Texas Signature ofNotary Publ1c
\';.1-"....:;,'f My Comm1ssion Exp1res
'•.::.:i·;::::.·•'' February 20, 2019
15
• PETITIONER'S INFORMATION
Petitioner's printed name:
.-.-
J l ('{\Q4 fv\~ Tesch
.,.J.)...I..~.LI.:l=-:o.0-'..:0~--------
State Bar Number, if appl icable:_lq.:...l.C(j..a.
.
Address: ~· 0 .1::?at- ·:;t=S'5
Go-+tSVl \le, Tx lloCS 'Z 1\
Telephone: dC:Sl\- ~lo 5- 0~3)3
Fax: \- d "5L\~ J 3\- :?S?;Y
INMATE'S DECLARATION
[, _ _ _ _ _ _ _ _ _ _ _ _,am the applicant I petitioner (circle one) and
• Being presently incarcerated i n - - - - - - - - - - - - - ' declare under penalty of
Per:jury that, according to my beliet~ the facts stated in the above application are true and correct.
Signed on _ _ _ _ _ _ _ _ , 20_
Signature of Applicant I Petitioner (circle one)
• 16
11
• PETITIONER'S INFORMATION
Petitioner's printed name:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Telephone: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
Signed on _ _ _ _ _ _ _ _ _ , 20 __
Signature of Petitioner
•
• 17
FILED
• CAUSE NUMBERS 57,558-A and 57,557-A 2015AUG-4 AHIJ:03
EX PARTE §
§
§ DISTRICT COURT
§
THOMAS RAYMOND § BELL COUNTY,
CARR TEXAS
MEMORANDUM OF LAW CONCERNING COMPETENCY, INEFFECTIVE
ASSISTANCE OF COUNSEL, KNOWING AND VOLUNTARY PLEA,
CONSTITUTIONALITY OF STATUTE, AND OF ACTUAL INNOCENCE
Applicant presents this memorandum of law. He states that all facts alleged in this
document and all legal authority cited are fully incorporated into the
Application for Writ of Habeas Corpus. The Exhibits List, containing three
pages and indicating twenty-five exhibits, is fully incorporated into this
• memorandum of law and into the Application for Writ of Habeas Corpus .
Pursuant to T.R.A.P. 73 the word count for this Memorandum of Law is 3,561 and
for the Exhibits List is 738 words. The total word count is 4,299 words.
I. APPLICANT NEVER HAD A PROPER COMPETENCY HEARING
BASED ON TEXAS LAW
ISSUE PRESENTED: If a defendant was heavily over-medicated, had been
previously declared incompetent to stand trial, and was found competent solely on
a hospital doctor's report- after said doctor never interviewed the defendant- in
declaring defendant competent to stand trial, may defendant plead guilty to a
crime?
I. Applicant can seek relief through habeas corpus if the court does not hold a
proper competency hearing. Ex parte McKenzie, 582 S.W.2d 153, 154 (Tex.
Crim. App. 1979). The appropriate remedy is a remand for a retrospective
hearing if possible. Ex parte Ridley, 658 S.W.2d 177, 178 (Tex. Crim. App.
1983 ). Applicant is entitled to relief where he was (1) denied effective
•• Page 1 of 15
• assistance of counsel at a competency hearing, (2) the competency
hearing was improper for some reason, or (3) the trial court erroneously
failed to hold a competency hearing. Ex Parte Garrett, No. WR-75,447-
01, 2011 WL 2382572 (Tex. Crim. App. June 8, 2011) cited because it
lists cases holding that the proper relief is a retrospective competency
hearing, if possible. Huff v. State, 807 S. W.2d 325 (Tex.Crim.App.l991 );
Hawkins v. State, 660 S.W.2d 65 (Tex.Crim.App.l983)(vacated on other
grounds, 494 U.S. 1013; 110 S.Ct. 1313; 108 L.Ed.2d489; 1990)); Brandon
v. State, 599 S. W.2d 567 (Tex.Crim.App.1980)(vacated on other grounds,
453 U.S. 902, 101 S.Ct. 3134,69 L.Ed.2d 988 (1981)); Garcia v. State, 595
S.W.2d 538 (Tex.Crim.App.1980); Callawayv. State, 594 S.W.2d440
(Tex.Crim.App.l980); Caballero v. State, 587 S.W.2d 741
(Tex.Crim.App.1979); Ex Parte Winfrey, 581 S. W.2d 698
• · (Tex.Crim.App.l979).
a. Applicant's trial counsel, Montgomery, objected to a restoration to
competency at what was entitled "Motion on Competency". It was
heard on March 24, 2006. He objected to the North Texas State
Hospital Report. See Exhibit 2. Transcript Vl P 95 through 99.
However, Applicant's trial counsel failed to request a separate
hearing, which could be in front of a Jury, if requested.
b. The Honorable Martha Trudo found Applicant competent based
solely on the report from Dr. Black. See Exhibit 2. Transcript Vl-
97. Lines 7 through 11.
c. If a defendant objects to the finding of competency that is based
solely on the report, then the issue shall be set for a hearing before
• Page 2 of 15
• the court, except if requested, it shall be before a jury. T.C.C.P.
46B.084.
d. Applicant would then have the opportunity to question the North
Texas State Hospital doctors, Dr. Black and the psychologist, Dr.
Gray, who authored most of the report. See Exhibit 19. Applicant
could then present evidence of 1) the medication being prescribed
and its effects on him, and 2) incompetence.
e. Despite Applicant taking large doses of medication and his prior
incompetence, the trial court at the plea hearing simply asked
applicant "Do you believe you are mentally competent to proceed
to court today." See Exhibit 5. Plea and Sentencing Hearing
Transcript Vl-8, Line 10 .
• f. It is baffling that trial counsel had strongly objected to Dr. Black's
report and the circumstances around it, and then states that
Applicant was somehow competent at the plea hearing. In the
court-ordered affidavit, Montgomery responded to Applicant's
concern for psychiatric medication affecting his plea by "trashing"
Applicant. Exhibit 12, page 6.
g. Here, despite Applicant taking large dosages of medication and
Applicant being found competent based solely on the report from
Dr. Black, the trial court simply asked applicant "Do you believe
you are mentally competent to proceed to court today." See Exhibit
5. Plea and Sentencing Hearing Transcript Vl-8, Line 10.
h. The trial court was required to hold a trial on the issue of return to
•
competency because 1) the trial court based its competency rut i ng .
Page 3 of 15
91
• solely on the final report of Dr. Black , 2) trial counsel, Charles
Montgomery, objected to the report, and 3) Montgomery failed to
request a hearing.
2. In order to convict a defendant of a crime he must be competent to stand
trial. A defendant catmot make a knowing and voluntary plea if he is on too
much medication at his plea hearing. A defendant must be able to understand
the indictments and the statutes related to the crimes for which he is charged.
The standard for determining whether a defendant is incompetent to stand
trial, states:
(a) A person is incompetent to stand trial if he does not have:
( 1) sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding; or
• (2) a rational as well as factual understanding of the proceedings
against him.
(b)A defendant is presumed competent to stand trial and shall be found
competent to stand trial unless proved incompetent by a
preponderance ofthe evidence. TCCP sec. 46B.003.
3. In sum, based on the statutes and rules a defendant must be competent at the
time of his plea to be sentenced. Casey v. State, 924 S.W.2d 946; 949 (Tex.
Crim. App. -- 1996).
4. Applicant's trial counsel did not infonn Applicant of the charges and
proceedings against him because: a) the indictments do not make any sense,
when compared to the aggravated sexual assault statute, b) Montgomery did
not research the applicable law or inform Applicant of the law, c)
Montgomery does not even outline the Jaw as requested by the court and as
• Page 4 of 15
• requested in a June 14, 2014letter from habeas counsel. Instead, he rants
about everything under the sun, except the applicable law, in the court
ordered affidavit. In response to the June 14, 2014 letter, he provided a two-
page document that contained only the double jeopardy provisions of the
U.S. Constitution and Texas Constitution and the statute dealing with joinder
of certain offenses. T.C.C.P. Art.21.24. Montgomery says that he kept no
other research, and says he incorporated his research into his pretrial
motions. However, no research on law was cited in the pretrial motions.
II. DEFENDANT WAS PROSECUTED UNDER A STATUTE THAT
WAS CREATED FOR GANG-RAPE SITUATIONS INVOLVING
SPECIFIC "DATE RAPE" DRUGS
•
IssuE PRESENTED: If a defendant pleads guilty to conduct that was not meant to be
covered by the criminal statute, is the defendant entitled to relief in post-
conviction?
5. The following is a summary of the case law on aggravated sexual assault
involving "acting in concert" in gang rape situations. (The legislative history
is explained infra.)
a. In Miranda v. State, 391 S.W. 2d 302 (Tex. App.-Austin 2012, writ
refused), Miranda actually sexual assaulted the victim as a principal
actor. Other assailants sexually assaulted the victim, too. While the
case goes into an explanation of"the law of the parties" and "'acting in
concert", the defendant could have been convicted without the use of
the "law of the parties."
• Page 5 of 15
• b. In Moreno v. State, 04-12-04456-CR (Tex. App.-San Antonio, August
21, 2013), the defendant could have been convicted on multiple
theories without using the "law of parties."
c. In Arredondo v. State, 270 S.W. 2d 676 (Tex. App.- Eastland 2008,
writ rerd), Arredondo pled guilty to sexual assault, but not guilty to
aggravated sexual assault. The jury found him guilty of aggravated
sexual assault, because another assailant testified as to pleading guilty
himself to aggravated sexual assault. The court said that was proof of
"acting in concert," because no objection was made by Arrendondo's
trial counsel to the use of the other assailant's guilty plea to prove
"acting in concert."
• d. The court in Arredondo v. State, 270 S.W. 2d at 679 attempts to
define "acting in concert" through the use of legal dictionary
definitions. However, the definition of "law of the parties under"
Texas Penal Code Sec. 7.02 is essentially the same conduct required
for "acting in concert." This is double jeopardy.
e. If a double jeopardy claim is apparent on the face of the record, the
court can review a double jeopardy claim in a habeas corpus
proceeding. Ex Parte Denton, 399 S.W. 2d 540 (Tex. Crim. App.
20 13).
6. The Texas Aggravated Sexual Assault Statute, Tex. Penal Code Sec. 22.021
(1999) was intended to apply to "date rape" drugs only. Please seethe drugs
• Page 6 of 15
• defined in the statute. Also, the legislative history indicates that it applies
to date rape drugs only. TXB.An., S.B. 1100, 5/13/99.
III. APPLICANT COULD NOT HAVE BEEN FOUND GUILTY OF
DELIVERY OF A CONTROLLED SUBSTANCE WITHOUT THE
COOERCED PLEA
ISSUE PRESENTED: Can a defendant plead guilty to a crime, while over-medicated,
if the state could not have convicted the defendant in a criminal trial?
7. Based on the statements ofthe alleged victims and Tammy Bishop and on
the Metroplex hospital records, the State could not convict Applicant on the
delivery of a controlled substance charge. The State had no physical
evidence taken from the scene ofthe crime. The state simple had
•
uncorroborated statements of accomplices .
8. Absent any cmToborative evidence, possible statements from witnesses will
not prove a drug is Methamphetamine. Steele v. State, 681 S.W.2d 129
(Tex.App.- Houston [141h District] 1984, pet. ref' d). Bright v.State, 556
S. W.2d 317 (Tex.Cr.App.1977). In Steele, the defendant admitted that the
substance he sold to a police officer was cocaine. The chemist did not testifY
that the substance was cocaine. The court held that without other evidence
corroborating the police officer's testimony, such as a lab report, the State
failed to prove a material element of the offense. Steele v. State, 681 S.W.2d
at 131.
9. Here, Applicant was arrested at his home on July 9, 2004, twenty days after
the alleged incident based upon a search warrant. At the time of arrest,
• Page 7 of 15
• Applicant denied "providing drugs to the boys" and "denied injecting any of
them with Methamphetamine." At the same time, the police seized the items
in Exhibit 8. See Exhibit 21. The Bell County District Attorney's office
never provided Applicant's trial counsel or habeas corpus counsel with
Applicant's denial statements. The information was provided as a response
to a T.C.C.P.chapter 64 motion.
lO.According to the Bell County District Attorney's office, offense reports
show that potential illegal drugs were seized on July 20, 2004. See Exhibit
25. The offense reports have never been provided.
11. The affidavit for arrest for the delivery charge states that the incident
occurred on June 19, 2004. It states that statements were taken, a videotape
was reviewed, and the juveniles' parents say their children tested positive for
Methamphetamines. See Exhibit 7.
12.The affidavit for arrest on the aggravated sexual assault charge was filed
over six months after the alleged incident and sworn to by Detective Mike
Simmons. See Exhibit 21. He swears under oath to Judge Martha Trudo the
following "I have reviewed the medical records of all three boys, which
showed positive results for Methamphetamine." The accompanying sworn
complaint was signed by Detective Simmons and by Bell County Assistant
District Attorney, Mark KimbalL See Exhibit 21. They knew the
Methamphetamine information was false based upon the Metroplex Hospital
records. See Exhibit 9 .
• Page 8 of 15
• 13.Per Steele v. State, if you take away the statements of the accomplices, here,
who were not even police officers as in Steele v. State, you have no
corroborative evidence to prove delivery of a controlled substance. No drugs
were recovered at the scene of the alleged crime. Only urine tests were done
on the juveniles several days after June 19, 2004 at Metroplex Hospital. The
tests were potentially positive for Amphetamines, not Methamphetamines.
J M , to whom the Methamphetamine was allegedly delivered, was
taking an Amphetamine, Concerta, at the time of the urine test. While it
would not be corroborative evidence of delivery of Methamphetamine, the
State did not even have lab tests done on the items seized at Applicant's
home.
IV. TEXAS' AGGRAVATED SEXUAL ASSAULT STATUTE IS
UNCONSTITIONAL AS APPLIED DUE TO IT BEING
SUBSTANTIALLY OVERBROAD
lssuE PRESENTED: Can a defendant on huge amounts ofSeroquel plead guilty to
conduct that was not intended to be covered by the aggravated sexual statute by the
Texas legislature?
14.The Texas Penal Code has a confusing and tortured aggravated sexual
assault statute. Tex. Penal Code Ann., sec. 22.021 (West 2003 ).
a. In this case, the facts center on the two aggravation provisions alleged by
the Bell County, Texas District Attorney in the amended indictment as
they relate to the statute.
b. First the State has to prove" [a) person intentionally or knowingly
causes the penetration of the anus or sexual organ of a child by any
means." Tex. Penal Code Ann., sec. 22.02l(a)(l)(B)(i) (West 2003).After
Page 9 of 15
Q1
• proving these facts, the State has to prove the aggravating subsection of
the statute.
c. The first applicable aggravating subsection involves " administer[ s] or
provide[ s] ... rohypnol, gamma hydroxybutyrate, or ketamine to the
victim of the offense with the intent of facilitating the commission of the
offense." Tex. Penal Code Ann., sec. 22.02l(a)(l)(B)(i) and 2(A)(vi)
(West 2003). Applicant found no case law on the provision. The
legislative history of the subsection clearly indicates that the provision
only involves administering "date rape" drugs to the victim with the
intent of "facilitating" the commission of the offense. Crim. Justice, 8 ill
Analysis, Tex. S.B. 1100, 761h Leg., R.S. ( 1999).
1. First, a defendant has to "rape" the child. Next, the defendant has
to provide a "date rape" drug or a "mickey-if you will" to the child
with the intent of making it easier to rape the child. The "mickey"
has to be one of the defined drugs.
2. Based on the newly discovered statements of Tammy Bishop and
the alleged victims, no "date rape" dmg was involved in this case.
This aggravating subsection does not fit.
3. Clearly, in a "date rape'' drug scenario a defendant could be a pa11y
to the offense, under the law of the parties, and fit within the
statute. He could have provided a "date rape" drug or a "mickey-if
you will", to the victim. In this scenario, he could commit
'
aggravated sexual assault.
4. Charles Montgomery somehow had Applicant plead to this
•
aggravating factor, when no "date rape dmg" was administered .
Page 10 of 15
• d. The second applicable subsection involves 1) "act in concert" with
another rapist who causes the penetration of the anus of a child "directed
toward the same victim." Tex. Penal Code Ann., sec. 22.02l(a)(l )(B)(i)
and 2(A)(v) (West 2003). The Texas Penal Code does not define act or
acting in concert. The scant case law found attempts to use legal
dictionaries to define act in concert. None of the dictionaries defined it.
The cases turned to "concerted action" to interpret the '1:erm of art".
Black's Law Dictionary, P.262 (5th ed. 1979); Black's Law Dictionary,
concerted action (18c) (lOth ed. 2014).
1. Since the Texas Penal Code does not define "act[s] in concert", the
courts try to give the words their ordinary meaning. Since the
definition is not apparent after trying to give the words their
ordinary meaning, courts turn to the legislative history behind the
statute to determine legislative intent.
2. The "act in concert" provision was enacted in 1993 as part of a
fairly extensive change in the Texas Penal Code. Tex. S.B. 1067,
73rd Leg., R.S. (1993). Tex.HB 77 had a Bill Analysis provision
· giving a background of the bill that was incorporated into the final
bill, Tex. S.B.l067. Comm. on Crim. Justice, Bill Analysis, Tex.
HB 77, 73rd Leg., R.S.(I993). The legislative purpose ofthe bill
was to "clarify sexual assault as aggravated sexual assault if more
than one individual engages in conduct directed toward the same
victim at the same time". Several high-profile cases of"gang rape"
were part of the reason for the bill. For example, prior to the bill
becoming law, a gang of men could each rape the same women.
Each man could only be charged with sexual assault, unless she
• Page 11 oflS
• was threatened with serious bodily injury or some other factor,
such as use of a weapon.
3. This interpretation is further bolstered by the statute using the
words or terms "acts in concert with another [who engages in the
rape of the child] directed toward same victim" ... Tex. Penal Code
Ann., sec. 22.021 (a)(l )(B)(i) and 2(A)(v) (West 2003). The
legislature chose to use the words "same victim" in the statute. The
legislature inserted the words "same victim" in the statute.
15.Concerted action means "[a]n action ... agreed on by parties acting together
... , so that all involved are liable for the actions of one another.'' Black's
Law Dictionary 18c ( 101h ed. 2014 ); Concerted action (or plan). "Action that
has been ... agreed on and settled between parties acting together pursuant
to some design or scheme". See Accomplice. Black's Law Dictionary 289
(6 1h ed. 1990)Why? If one leaves out the word same in "same victim", then
the change would affect the meaning intended. That meaning is gang rape.
V. A DEFENDANT MUST MAKE A KNOWING AND VOLUNTARY
WAIVER OF HIS POST CONVICTION REMEDIES AND GROSS
INEFFECTIVE ASSISTANCE OF COUNSEL PREVENTS IT
ISSUE PRESENTED: Can a defendant on huge amounts of Seroquel waive his right
to post-conviction remedies even if his counsel was grossly ineffective, especially
in not obtaining discovery or putting minimal or no effort into a case with raised
competency issues?
16. The Court of Criminal Appeals, in a waiver of post-conviction habeas
corpus case, outlines knowing and intelligent waivers of post-conviction
remedies. Ex Parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. 2009). The
• Page 12 of 15
• court found that the ineffective assistance of counsel claim under the Sixth
Amendment was of such a magnitude as to render the guilty plea
involuntary. Ex Parte Reedy, 282 S. W.3d at 499. The trial counsel was
alleged to have been unprepared to present any viable defense for the
applicant. Ex Parte Reedy, 282 S.W.3d at 500. The court also discussed
other claims that could affect a knowing and intelligent waiver of post-
conviction rights such as actual innocence based on new evidence, the
suppression of material, exculpatory evidence by the State, and ineffective
assistance of counsel. These claims may be based upon facts not within the
applicant's knowledge or comprehension despite due diligence and the
assistance of counsel at the time of the plea and waiver. Ex Parte Reedy, 282
S. W.3d at 498.
17 .The Facts mentioned above and in the Application show no rational juror
could have found Applicant guilty beyond a reasonable doubt or "actual
innocence". Also, the facts indicate despite due diligence, Applicant can
show relief based on suppression of evidence by the State and ineffective
assistance of counsel.
18.The following facts indicate suppression of material, exculpatory evidence
by the State that by its very nature could not have been discovered by
Applicant.
a. The Bell County District Attorney's office failed to provide witness
statements, or at least information from the statements that it had:
1. No ''date rape" drugs anywhere in the case;
2. No blood tests, or any test showing a positive result for
•
Methamphetamine, and in fact lied about it;
Page 13 of 15
• 3. No drug evidence recovered from the scene;
4. No evidence to corroborate the statements of accomplices that
Methamphetamines were delivered to J M and
b. The Bell County District Attorney's office provided false information or
flat out lied about:
1. Prosecuting Tammy Bishop for aggravated sexual assault, when Mark
Kimball, the Bell County Assistant District Attorney, had an under the
table deal to not prosecutor her;
2. Pursuing Tammy Bishop on numerous charges, when Mark Kimball
had no intention of doing so;
3. Having blood tests to confirm Methamphetamines in J M and
the other juveniles systems;
• c. The Bell County District Attorney fail to provide trial counsel with a
copy of a statement/infom1ation about Applicant denying delivering
drugs to the alleged victims at the time of his arrest.
d. Evidence discovered from trial counsel, Charles Montgomery, shows that
he had viable defenses, but failed to either follow up or understand them.
The following information has been discovered that he:
1. Did not show facts or law to counter the State's burden of
proof/evidentiary requirements for delivery of a controlled substance
and for aggravated sexual assault. The facts and law were there;
2. Failed to follow up on the absolute right to a competency hearing;
Applicant submits this memorandum of law to the court for review. Applicant
prays for any relief to which he is entitled. Applicant requests a hearing, and an
• Page 14 of 15
• explanation if possible as to why his claims should not be reviewed, especially in
light of the newly obtained evidence.
Timo y Tesch
SBN: 19808200
Tesch Law Firm
P.O. Box 255
Gatesville, Texas 76528
254-865-0313 (ph)
254-731-2584(fax)
teschlaw@gmail.com
• Certificate of Compliance
1, Timothy Tesch, certify that this Memorandum of Law contains 3,561
words and the Exhibit List contains 738 words.
words .
• Page 15 of 15
Exhibits
•
Incorporated By Reference Into the Application
Information and Facts Including 1) Trial Counsel's Notes and Documents
Provided to Applicant, 2) Bell County, Texas D.A. Documents That Show
Incorrect Sworn Affidavits and Exculpatory Evidence, and 3) Evidence of Mental
Incompetency
1. Statement of Tammy Bishop dated July 9, 2004. Statement of J M
dated July I, 2004 with November 4, 2005 crossed out and with initiaLs R.S.
Statement of S G dated July 8, 2004. Statement of C
V dated July 8, 2004. Note the statements of G and V say James
M. Simmons notarizes them, but the numbers on pages do not match the
notary information.
2. Part of Thomas Raymond Carr Motions (sic) on Competency heard on
March 24, 2006.
3. Part of Tammy Michelle Bishop Plea of Guilty hearing heard on November
•
30, 2005 .
4. Part of Thomas Raymond Carr Motion to Reduce Bonds hearing heard on
January 3, 2005.-
5. Part of Thomas Raymond Carr Plea and Sentencing hearing heard on
November 21, 2006.
6. Statement ofRobert 0. "Buck" Harris, Tammy Bishop's attorney.
7. Affidavit for Arrest and Complaint filed July 15, 2004 by Detective Mike
Simmons to arrest Thomas Raymond Carr for the June 19, 2004 delivery of
Methamphetamines to a minor, J M .
8. Notarized Affidavit of Daniel C. De Leon as custodian of the evidence
section for the Harker Heights Police Department dated July 17, 2014. An
evidence log is attached to the affidavit. The section labeled "Lab Analysis
Needed" is blank. This indicates no items were drug tested.
9. Business Records Affidavits from Metroplex Hospital dated November 1,
2006 for J M ,S G , and C V Some, but not
• Page 1 of3
Exhibits
Incorporated By Reference Into the Application
all, of the records are attached. The urine drug screen tests indicate positive
findings for amphetamines and THC.
10. 16 pages of drug testing information for Methamphetamines and
amphetamines.
ll.The indictment for aggravated sexual assault dated March 23, 2005. The
amended indictment for aggravated sexual assault that was amended on
March 24, 2006 by the trial court. Neither indictment tracks the statutory
language of the aggravated sexual assault statute.
12. CoU1t Ordered Affidavit filed by Charles Montgomery, trial counsel, in
Cause Numbers 57,557-A and 57,558-A on AprillO, 2013.
13.Acknowledgment of Receipt ofThomas Carr's File from Attorney Charles
Montgomery received by Tesch Law Firm on June 26, 2014. The receipt is
six pages. The documents sent by Charles Montgomery are attached in other
exhibits.
• 14.Two page Document from Charles Montgomery, trial counsel, showing only
research in his file. It consists of U.S. Constitution, Amendment V, Texas
Constitution Art.l.IO, and Texas Code of Criminal Procedure 21.13.
15 .Handwritten note from Charles Montgomery recommending the filing of an
interlocutory appeal.
16.Texas Uniform Health Status Update (with handwritten number of
#1403931). This document shows the current prescriptions being
administered to Applicant. Note the dosage of Seroquel (one tablet (200 mg)
before noon and five tablets (200 mg) before bedtime.
17.Rxlist, Medicinenet, and other literature. The medication that Thomas Carr
was taking rendered him incompetent to make a plea. The class of drug,
dosage, and side effects for Seroquel include an atypical antipsychotic and
the Max. dosage per day at 800 mg. Common side effects - drowsiness and
dizziness. Other side effect - altered mental state.
18.Report from court ordered examination with Dr. Frank A. Pugliese that was
•
filed with the trial court on October 7, 2005 .
Page 2 of3
Exhibits
•
Incorporated By Reference Into the Application
19.0ne page report from Joseph L. Black M.D. and five page report of B.
Thomas Gray, Ph.D. Both reports were filed with the trial court on March 6,
2006.
20. Affidavit for Arrest and Complaint filed July 15, 2004 by Detective Mike
Simmons to arrest Tammy Bishop for the June 19, 2004 delivery of
Methamphetamines to a minor, J M
21. Affidavit for Arrest and Compliant filed January 3, 2005 by Detective Mike
Simmons to arrest Thomas Carr for aggravated sexual assault.
22. Complete docket information sheet for State of Texas v. Thomas Raymond
Carr, Cause No. 57, 557, delivery of Methamphetamines to a minor, J
M .
23. Complete docket information sheet for State of Texas v. Thomas Raymond
Carr, Cause No. 57, 558, aggravated sexual assault.
24.Copy of June 6, 2014 letter to Charles Montgomery and of release of file to
• Charles Montgomery. The released asked for specific information .
Montgomery has the original signed documents. The copies are not signed.
25.Part of response by the Bell County District Attorney to Applicant's Chapter
64 motion .
• Page 3 of3
I,.
I
•
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State Of Texas -
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of page(s), each of which bears my signature 3JlO [ swear~d
affirm lhat
"'·cr;ttuno contained heretn tS true and r-orn~ct to the best of my knowledge. My name IS fam.m 4 1 ~ frw...-.d
! am _J ~years old, have compleled ( ~S)\'~f
>Laremenr was completed at (location) f.i+l:t':U
formal education and I do read anrl write the Engttl;h' anguage. This
;~r (ltme) ;) ." 0$Pf'ltpn (date) '7- Q- O'-(
SJgnarure~p~
S•.vorn ~bscnbed before me at (location) i;1-fPO
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\ Sl~ptu;e of Notary
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typed name of
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No~
·11r;r:;ry Publ1c 1r1 and for ihe State of Texas. My commission expires on ~C :e._(/1;-fLc.--<r
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State's Ex.hibit N-o. 6, page 4 of 4
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DBPA.RTM.ii'T OP Pf1BLIC SUE1'Y
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Notary Public in .a,.na for N·ueceit Co~ty, Ta:u
• State's Exhibit No. 1~ page 2 of 2
HARKER .tEIGHTS POLICE DEPARTME '
Vol State Of Texas N1 i !
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untary Statement - (Not un d er arrest) ! ;
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State's Exhibit No.2, page 2 of 2
HARKEt.. .dEIGHTS POLJCE DEPARTMEN1. l: .
State Of Texas
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Voluntary Statement - (Not under arrest)
THE STATE OF TEX
·AS ', J .......... , _,_,
COUNTY OF fu l(
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I have read this statement consisting of
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contained herein is true and corno:ct ~ 7h~s~e;:~; ~ w~ch bears my signatu_re and I swear and affirm that
1
.. 1'1 years old, have completed 7 "~""::ys of 'o
tam " rma I ed tlta\Jon
y J do Myd name
owlellge. ./.:.'--1-'.' fl'
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:rutem~nt '~as completed iH [locatton) !I f/IJJ
and
rea anu wrrte the Engltsh language. This
ot {lime)?. 3op>r"' on (dare) ·7-8 .(.)./
''gn;nwe JvW. U~.
Sworn to a~d~)ibed ~~f~re me. at (lf!c~tion) HH f.L)
/'.', ~~~me) 7·~{)PfV\ on (date) ·/-g-o/
~;·g~{UI clNotMy . 'JLi;yJ, ·~.- · ·, <:' tV .'. <
i'im..lrf Puh.ltc In and for the State ofT:exas M Y conunrsston
.· typed on of_ Notar·· f.ll:t(
name
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State's Exhibit No. 3, page 2 of 5
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HARKEk .ffiiGHTS POLICE DEPARTMEN-t. 1!·
State Of Texas li!
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Voluntary Statement - (Not under arrest) p;
THE STAT[ OF TEXAS
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• State's Exl!ljbit No.3, page 3 of 5 . ii
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Exhibit 2
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ORIGINAL
REPORTER'S RECORD
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VOLUME 1 OF 2
3 TRIAL COURT CAUSE NO. 57,557 and 57,558
4
5 THE STATE OF TEXAS IN THE loiSTRICT COURT~~
6 vs. OF BELL COUNTY, TEXAS ~-~
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7 THOi'1AS RAYMOND CARR 264TH JUDICIAL DISTRit
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MOTIONS ON COMPETENCY
11
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On the 24th day of March 1 2006, the
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following proceedings came on to be heard 1n the
1 'l above-entitled and numbered cause before the Honorable
3_5 Martha J. Trudo, Judge presiding, held in Belcon, Be 1~,,.
16 County, Texas:
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j. 7 Proceedings reporte d ·oy Lompu
~ t e rl· zeo· l'<13Chlne
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). -· Shorthand Method.
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e Elizabeth A. Youngr CSR, RPR
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•• 1 L'1R. MONTGOMERY: Th. at 1 s my wh o 1· e po1n1-\;;
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2 Your Honor. II i ·~
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3 THE COURT: Okay. M:r. Montgomery, st~p.
4 I'm finding him competen~L ba-sed on ·what
_ I' ve rece.l· vetti·i ll.
5
;::t ~:j :~::ons you have we'll deal wi thi i t later \l,
6 I m now finding him competent to proceed ·Iii
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7
MR. MONTGOMERY: All right:, Your HonodV
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8 At the conclusion of this hearing I'd like to make a il:
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9 bill of exception. l:.:
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THE COUF.T: All right. Now v-1e'r.-e qo1ntjl,\o
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to proceed with the motion to quash the subpoena. A1 Hi
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MR. ODOM: Your Honor, for the Court's I'
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information, yesterday I accepted service for
J.S Mr. Garza's subpoena in this case. After meeting witl
1 - Mr. Montgomery, I was advised that he had intended to
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17 call Mr. Garza concerning office policy about the bac~
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18 of the indictment in this case, that is, that the -- ~~t
19 the charging portion cf the indictment but the back ot
20 it contains the words "of a child" after aggravated
t
21 assault. M:r. Montgomery has complaine~ about that,
22 about including that.
23 I will s~ate to the Court right now we;
h it's not pacn
24 agreed to redact those words even thoug
25 of the indictment itself from the back of that
• Elizabeth A. Young, CSR, RPR
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-'- apprising the juJ~Y of the vJhole aggravated conduct
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2 the part of the defendant. The jury 1s going to he~t· 1 lt
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all, Judge. So if the jury is going to hear it all
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4 sentence him for all of it, I want them bound by tha~·
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5 verdict. :i;
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0' Your Honor should know perhaps 11: wilw
7 make a lot of this go a lot easier, if we address th~:!
8 ugly fact that the heart of this crime is that his w1~e
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9 dildoed ·three juveniles over the age of 14. He had 1nb
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lO hand in it except he filmed it. Now true, they can %. . ld
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l3 They cannot as my motion to quash poJ.~~ts
'-'- Lj out without being in violation both of the Texas il
]_ 5 constitution, the United States constitution, double
l6 jeopardy clauses. They cannot then use the same fact"
1.7 which constitute him acting together with her under t e
18 la~ of parties to come along and say, oh, by the way,;
l9 that's also acting in concert and under the statute 11:.
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e~evat:es t ne second
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. d egree o fcense
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Tammy.
They had a good first degree
She was the one who did the dildoing ·
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he was filming it they could have argued that Tammy I
23
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a first degree offense.
24 prosecutable under for
And they could have pr:osecuted Tarnmv t.,:::
25
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Elizabeth A. Young, CSR, RPR
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a second degree offense of sexual assault.
Wh a t h ave they done? They have let Tammy totally of~ '
But no.
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the hook. She doesn't get prosecuted at all for [he\;' I'
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4 sexual assault for the rape of these juveniles. She~\$:
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5 in prison on a light sentence and they promised her
!·'
6 quick release which is another matter I;ll get to.
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MR. KIMBALL: Your Honor, I'm go1ng
p
u object. That 1s a lie.
9 MR. MONTGOMERY: She lS.
10 MR. KIMBALL: It's a lie before the
11 Court.
12 THE COURT: All right. Wait. One at
•• 13
J.L]
time. I want to first deal with this consolidat1on a. ·
joinder and as I look a~ 302 why should not I order
15 since it is apparently and I think that I heard a bond
1.1.. 'C· or didn't -- I believe I heard something on this a lo~
17 time ago. It seems that that --
18 JI'!R. MONTGOMERY: There was a high bond_:
... 0_,
--~ THE COURT: I think I heard something o
20 Lhls a long time ago.
21 MR. MONTGOMERY: Yes, Y9U d id · Your
"~'
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~ Honor saw the tape.
THE COURT: And so why should I not ]O:h I
23
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these for saving the Court's time and I
h e det-endant do~
MR. KIMBALL: Because t
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Elizabeth A. Young, CSRI RPR
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that and then a summary and recommendations. Th.at ' s
what I am referring to and that's what I have reviewJb.
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MR · MONTGOMERY: Exactly, Your Honor, !\I!
tJ and -- and on the next to last page there or second ~~em
5 last page, you have him saying that the defendant see 1Ks
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6 to enjoy trivia game and shows knowledg~ in many
7 subjects. Okay?
"c- And in another part of his report he S< id
I
9 that the defendant was observed making organized requdst
lO of his family on the phone. Mommy, don't send me
J.l cookies. Is that an organized request?· Telling his
12 mother that he can't have cookies at the hospital? Or
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that they can't send him razor blades. Is that an
14 organized report? This report is full of bull.
15 This doctor got tired of Tcim's staying
16 longer than the other patients stayed and wrote a repq t
17 that is full of bull. And we need the report that
18 should have been written by the attending psychiatr1st
1 ()
_,_::J who interviewed this defendant certainly before you cal
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l,_: eradicate and \vipe off the chalk board the report by tr e
21 Ph.D. here in Bell County who had interviewed the
2.2 defendant and had found him incompetent.
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") THE COURT: This is an updated d1agnos11
· · t ~rd t h a t 'ls
"Ll per Joseph Black, M.D. attending psychlatrls d' (
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25 the report.
Elizabeth A. Young, CSR, RPR
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Exhibit 3
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1 REPORTER'S RECORD
VOLUME l OE' l \l:
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2 TRIAL NO. S8,703 \;
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4 THE STATE OF TEXAS IN THE DISTRICT C~URT
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5 OF BELL COUNTY, T~XAS
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6 DISl"rT
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TAMMY MICHELL£ BISHOP 27TH JUDICIAL
7
8 PLEA OF GUILTY
9 l·~
10 On the 30TH DAY of NOVEMBER, 2005, the followi~g
11 proceedings came on co be heard in the above-entitled and
12 numbered cause before the Honorable Joe Carroll, Judge
13 presiding, held in Bel~on, Bell County, Texas:
14 Proceedings reported by Computerized Machine Shorthand.
15 f''lethod.
16
17
18
19
20
21 I
22 GA YLA R MAY, CSR, RPR
27TH JUDICIAL DISTlUCT COURT
23 OFFICIAL REPORTER
P 0 BOX 747
24 BELTON, TEXAS 76513
(254) 933-5270
'IC,
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FAX (254! 933-5977
GA~LA R. MAY, CSR, RPR
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2 * * * A P P E A RANCE S * * *
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4 ( FOR THE STATE:
5 DISTRICT ATTORNEY'S OFFICE
BY: Mr. Mark Kimball
6 Assistant District Attorney
..,, II SBOT No. 11418030
P. 0. Box 540
Belton, TX 7651.3
8 (254) 933-5215
9
10 FOS THE DEFENDAi·~T:
LAW OFFICE OF R. 0. HARRIS
BY: t··'i:c. R. o. ~.suck) Harris
SBOT No. 09098800
P. 0. Box 169
Kllleen, TX 76540
1.254) 690-4800
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I the
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for all. p:.nposes.
B1shop.
Your Honor, the State
defendant's con.ession
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MR . HARRIS : N0 objection to State • 5 1 as '\\\:
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THE COURT: St2te' s Exlubi ~'- No. 1 l· s a ddll.l t ~~d
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agains:: 1•1s. Bishop. \ \·
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(State's Sxhibi:- No. l admitted.) \i
Based on that I w1ll state that che evidence ,, '
sc>fficienc cc fino you "guilty." I will w1.thhold a bndcn~\\
Is -chere any further ev ide nee from the s ta ce o ::- l\i"
a':ld ask: ~);
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Defense on punishment 1ssues?
Your Honor, I don' c think '-Ie teu
KIMBALL:
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a PSI 1n light of the 9lea agreement. !\
furthe"C chargeS that Will be filed aga l IS r_
~!lOW that there are
She is t.he major
She is well aware of it.
tJ\s. Bishop.
or a maJOr
in this case,
witness against the co-defendant
There will
co-defendant 1n this case.
;.-Ji cness against t.he on
have to appear probablY
trials in which she will
~.8ver8l of c.
felony offenses involving sexual abuse
'
flrst-degree 1\
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:hild. Judge, :::-::: \
And the main reason we are doing thiS,
safe c.c :.::..:.':.\
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is just not
but it
been in jail a long time,
:-Las
The State has reason to believe her
• h.er on the streets.
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• ~sing
s, by no means,
methamphet.arnine. We certainly don't want that
is the end of cases against Ms. Bi Sil
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well aware of that. i~ .
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Anything from the Defense·>
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THE COURT: ~ 1
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MR. HARRIS: Your Honor 1
Defense would corjfUr
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rlr. Kimball's resuscitation. \\
Ms. Bishop, you agree to wa1ve a presentence
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1nv~stigation report at this time. Is that correct?
'·.1.
THE DEFENDANT: Yes, s1r. 1
['.jF'.. HARRIS: Thank you. \
Your Honor 1
I would further advise the Court tha
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Bishop's sister-in-law and parents are present "' the
'
~:~=~room, and they have been made a part of the loop. and
~~e; have been made aware of the events we have test1fied ~~·
THE CCURT:
All right. That is obviously t~-
fa~~er back there.
MR. Hl'.RRIS: Yes, sir, it lS·
THE COURT: Okay. All right, l"Js. BishoV I
.--.:..:...- find you "gui 1 ty, " assess your punishment at ej_qr: t yea:~"''
I will gj.ve you credj_C fer a!.l c.he
l~s~:t~cional Division.
- en c· e0 you t c
the cc..unty jail an d senl.. -
23· t..r>E .:::':_ght-year term.
' h ened to you now?
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Do you uDderstan d wh at s app 1
(Indicating)
THE DEFENDl>.NT:
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CAYLA R. MAi, CSR, RPR
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Exhibit 4
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REPORTER'S RECORD L
2. p
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c?.uss Nos. ·:
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01,8478 Jl.ND
STATE Of TEXAS 53,430
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5 T.:OMAS )(
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8
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I ~***-A·*****
HEl\.P.ING
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I MOTION TO REDUCE BONDS
***'*******
12 On the 3rd day of January, 2005, the
p~oceedings
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following came
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on to be heard in ;:: ne
above-entitled and numbered cause before the
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Honor& b.!.'
j Martha Jane 'frudc, Judge presidj_ng, held in Belcor:,
/8ell County, Texas.
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:..: Proceedings reported by BETSY MOCK CLifTON b
machine shorthand and computer-aided transcription
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I BETSY MOCK CLIFTON
CERTIFIED ShORTHAND REPORTER
2 :~ fl. Ci. Box 365
'1:~
L
BELTON, TEXAS 76513
(254) 933-5790
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2 ~ lvJAHK KIMBAL.L
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3 ASSISTANT DISTRICT ATTORNEY
BELL COUNTY, TEXAS
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FOP. THE STATE
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8 I MR. TEO POTTER
9 ATTORNEY AT LAW
BELTON, TEXAS
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ll FOR THE DEFENDANT
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State rests.
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THE COURT: r·
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Mr. Potter, j:
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any other
evidence? j!;
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MR.
!i',: .
POTTER:
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