# Desilets, Paul Ray

> Court of Appeals of Texas · September 1, 2015

URL: https://www.frixlaw.com/law-library/cases/4067609

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** September 1, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

")w ,OH § 'Oz

Paul R. Desilets
T.D.C.J. 1581093

7405 Hwy 75 S.
Huntsville Texas 77344
Goree Unit

August 24 2014

Mr. Abel Acosta, Clerk
Court of Criminal Appeals
P.O. Box 12308

Capitol station

Austin Texas 78711

RE: Cause No. 08-12-11262-CR, I,II, Paul R. Desilets v. State of Texas

Dear Mr. Acosta,

Please find enclosed Applicant's Objection To The States Answer
With AnObjection To the Findings Of Facts And Conclusion Of Law. Could you please file
vthis with the Honorable Court of Criminal Appeals and bring it to the attention of
the Court. Could you also please notify Applicant of the reciept and filing of this

Objection.

Thank You for your attention in this matter.

Paul R. Desilets-Applicant

RECE|VED |N
couRT oF chMmAL APPEALs

SEP 01 2015

Abe| Acosta, Clerk

CAUSE NO. OB-lZ-llZ€Z-CR-I/II

PAUL R. DESILETS IN THE DISTRICT FOR

THE 359th JUDICIAL DISTRICT

f-O'>¢»Q’>¢M¢&’:

THE STATE OF TEXAS MONTGOMERY COUNTY, TEXAS

OBJECTION TO STATE'S THIRD ANSWER INCLUDING STATE'S

FINDING OF FACTS AND CONCLUSION OF LAW
AND NON-RULING OF MOTIONS FOR HABEAS PROCEEDINGS

TO THE HONORABLE JUDGE OF THE 359th J.D.C. OF MONTGOMERY COUNTY, AND THE HONORABLE
JUSTICES OF THE COURT OF CRIMINAL APPEALS.

NOW COMES, Paul R. Desilets, Applicant, in the above styled and numbered
cause in a post conviction habeas corpus, Pursuant to Article ll.07 of the Texas
Code of Criminal Proc. and files this his Objection To The State's Third Answer
Including The State's Finding Of Facts And Conclusion Of Law, and Non-Ruling Of
Motion For habeas proceedings, Under Article 33.1 of the Rules Of Appellate Procedure.

ln Support of this Objection Applicant will show the Honorable Court's the

following;

I. HJSTORY
Applicant was charged with two counts of Intoxication Assault. Applicant plead
not guilty claiming he was the passenger of the vehicle. Consequently, due to the
District Attorney withholding exculpatory and mitigating evidence, along with his
ineffective assistance of counsel, on May 21, 2009, a jury found Applicant guilty

and assessed punishment at five years on count I, and Six years on count II-

The judgement was read into Open Court and Applicant began serving his
sentence on May 21, 2009. On July 8, 2011, Applicant filed his first writ of habeas
corpus requesting an out-of-time P.D.R. due to ineffective assistance of appellant
counsel. On April 20, 2012, Applicant was Mandated a out-of-time P.D.R. No. PD-0583-
12. On December 17, 2012, The P.D.R. was denied by the C.O.C.A. On March 9, 2013,
Applicant filed a Writ of Certiorari in the Supreme Court and on September 13, 2013,
it was placed on the docket at No. 13-6927. On November of 2013 the Writ of Certiorari
was dismissed. On October 6, 2014, Applicant filed his second application for Writ
of Habeas Corpus under Article 11.07, along with his Memorandum, Appendix of Exhibits,
and several Motions. 0n OCtober 29, 2014 Applicant recieved the State's answer with
Finding of Facts and Conclusion of Law-citing non-compliance with 73.1 and requesting
dismissal. On November 14, 2014, Applicant filed his Amended memorandum in compliance
with 73.1 of the R. of App. Proc.. On November 20, 2014, State filed its Motion to
vacate it's Finding of Facts and Conclusion of Law and put forth a Designation of
issues on ineffective assistance of counsel. On November 24, 2014, Applicant filed
his First'Objection to State's answer and non-ruling on Motions. On December 1, 2014,
Applicant filed his Second Objection to State's Finding of Facts and Conclusion of
Law. On December 26, 2015 State filed the Affidavit of John Choate responding to
designating issues before the Court. On January 21, 2015, Applicant filed his Object-
ion to the Affidavit of John Choate.(see appendix A) On June 6, 2015, Applicant
filed a Writ of mandamus to compel the trial Court to proceed in the habeas corpus
proceedings, that more than 180 days have elapsed. On July 6, 2015, State put forth
it's unsigned answer with finding of Facts and Conclusion of Law. On July 29, 2015,
The Honorable Court of Criminal Appeals filed it's Order requesting Respondent to
answer within thirty days, and held Mandamus in abeyance until Respondent responds.

Applicant now files his Objection under 33.1 of the R. of App. Proc-, and
Objects to the State's Third Answer to his Application for Habeas Corpus with a
proposed Finding of Facts and Conclusion of Law, and the Court's Failure to Rule on
any of Applicant's Motions before the Court.

Applicant would notify the Court that in his trial proceeding he had two
Court Reporters, this information could be important in obtaining a complete copy
of the record for the Court of Criminal Appeals. Nancy Eleby, was the Court reporter
on may 18, 19, 20, 2009, and reported volumes 1, 2, 3, 4, 5, 6, 7, 8, 9, & 13.
Darlene Foreville reported on may 21, and June 1, 2009, and reported volumes 10,11,

& 12. (see appendix "F" attached).

II. THE REQUESTED RELIEF SHOULD BE GRANTED

In the present post-conviction habeas corpus proceeding Applicant has put
forth his Application, Memorandum, Amended Memorandum, and a preponderance of
evidence contained in his Appendix of Exhibits which brings forth exculpatory and
mitigating evidence withheld by prosecuting district attorney Rob Fryer during the
trial. Therefore, the Court will find that the State's Finding of Facts and Conclusion
of Law relative to Mr. Desilets's fundermental and constitutional errors are not
supported by the record. The origin of a prosecutors duty to disclose information
to a defendant can be traced to the United States Supreme Court decision in Mooney
v. Hulolan, 294 U.S. 103, 55 S-Ct.340, 79 L.Ed. 791 (1935).

Mr. Desilets in his habeas proceedings has shown that he was denied a fair
trial. One of those reasons was the State's failure to disclose favorable evidence
to the defense during the trial, other instances include; admitting a unlawfull B.A.C.
test into evidence which was obtained without a warrant, another was relied on
hearsay evidence with no indica of reliability and then disregarding the disclaimer-
on the test stating "do not use for non-medical purposes" do to the inadequatecy of
that test. This compounded with the fact Fryer withheld a material witness favorable
to the defense for as long as he could and then threatend the material witness with
inprisonment if she did not change her testimony,which was she saw the driver of:
the car flee the scene of the accident. This testimony would have bolstered the claim
of actual innocence for Mr. Desilets.

Consequently, these are some of the same tactics used by counsel Ken Anderson
in the Michael Morton case (who brought more openness to the discovery process) and
Kelly Seigler, legendary Houston attorney who has been accused of withholding evidence
as a district attorney in several cases. Now here it is-the same pattern and pratices
in which A.D.A. Fryer used to prosecute Mr. Desilets. To state that Fryer is, as a
prosecutor, unprofessional and continually pushes the envelope of what he could legally
say and do is an understatement.

Information collected by prosecutors or police that could help the defense
is known as"Brady Material" because of the U.S. Supreme Court case that decided the
issue in Bradv v. Maryland, 83 S.Ct. 1194, 10 L.Ed.2d 215 L1963). District attorneys
have aspecial set of ethics to uphold and in the case before us none were upheld.

The Applicant Mr. Desilets in the above case has in fact above and beyound met

his burden of proof and should be in all things Granted relief.

OBJECTION TO STATE'S ANSWER OF,
INEFFECTIVE ASSISTANCE OE` COUNSEL AND FAILURE TO INVESTIGATE

A defendant in a criminal case is entitled to reasonably effective assistance
of counsel. That standard has been adopted not only in Texas, but by all the Federal
Courts of Appeals and the Supreme Court. Stated morefully, the standard is "counsel
reasonably likely to render and rendering reasonably effective assistance? ln Texas/
whether this standard has been met is to be judged by the totality of the represen-
tation. It is fundamental that an attorney must have a firm command of the facts of
the case as well as the law before he can render reasonably effective assistance of
counsel.

A natural consequence of this notion is that counsel also has a responsibility
to seek out and interview potential witnesses and failure to do so is to be inefective,
if not incompetent, where the results is that any viable defense available to the
accused is not advanced. lt is fundamental that an attorney mustaquainthimself not
only with the law but also the facts of the case before he can render reasonably
effective assistance of counsel that burden may not be sloughed off to an investigator.
It is counsel's responsibility. Butler v. State, 716 S.W.2d 48 (Tex.Crim.App.l986).

In Bulter the Court of Criminal Appeals held an affirmed an order by the Court
of Appeals reversing Applicant's conviction due to the defense counsel's represent-
ation which fell below an objective standard of reasonableness, and Applicant was
prejudiced by that failure of counsel to seek out and interview witnesses. Counsel
Choate admitts and affirms in his sworn statement that he did not interview any
witnesses on his clients behalf and that he left this task up to an investigator a
Mr. James Townsend. (Choate affidavit at 1-2) Therefore, Applicant has established
that he was prejudiced bv his attornev's deficient performance, and there is a
reasonable probability that but for counsel's ineffective assistance , the results
of the proceedings would have been different.

The State next would like the Court to believe that trial counsel Choate was not
ineffective for failing to notifv, inform, and basiclv represent his client during
the cumulation of Applicant's sentences. However, the Supreme Court in Strickland
has held from counsel's function as assistant to defendant derive the overarching

duty to advocate defendants cause and more paticular duties to consult with the

defendant on important decisions and to keep the defendant informed of important
developments in the coures of the prosecution. U.S.C.A. Const. Amend. VI. Strickland
Id. at 2064; Powell v. Alahama, 287 U.S. at 68-69, 53 S.Ct. at 63-64. As well the
type of breakdown in the adversal process that implicates the Sixth Amend. is not
limited to counsel's performance as a whole; specific errors and omissions may be the
focus of a claim of ineffective assistance of counsel as well.

Applicant's trial was unfair due to the fact he was denied counsel at a critical
statge of his trial. United States v. Cronic, 104 S.Ct. 2044 (1984)- Further, a
defendant may not have a cumulation order entered in a case once he has begun to
serve his sentence. Ex parte Barley, 842 S.W.2d 694, 695 (Tex.Crim.App.l992). In
Desilets, as in Madding, the jury assessed his punishment and the Judge in accordance
with 42.03 pronounced the sentence orally while Desilets was in the courtroom, and
Desilets was removed from the courtroom and began serving that sentence. No written
judgement was signed untill 13 days later, unopposed consecutive sentences were added
to his written judgement.Again, this was clearly after Desilets was removed from the
courtroom and began serving his sentence on May 21, 2009.

Once a defendant is removed from the courtroom and begins serving his sentence,
it is to late to cumulate the sentence imposed with an earlier one. Gray v. State,
291 S.W.3d 555, 558 (Tex.Crim.-Houston [14th dist.] 2009, no pet.); Ex Parte Madding,
70 S.W.3d 131 (Tex.Crim.App.2002)7 The record clearly reflects that after the Court
announced sentence defendant was removed from the courtroom and began his sentence.
(appendix of exhibits "E" judgement of conviction by jury).

In conclusion, the State claims this complaint has been rejected by the Court
of Appeals in Desilets v. State, No. 09-12-00562-Cr 2013, WL 395895 (Tex.App.-Beaumont

Jan. 30, 2013, no pet.). The State is incorrect. The Appeals Court preserved the issue

l‘ "To resolve the jurisdictional

to be addressed in a habeas proceeding. Citing:
and procedural issues before us, we need not determine whether the trial Court
correctly ordered cumulation, and the issue might arise in subsequent habeas proceed-
ings. Accordingly we do not address the merits of the issue attempted to be raised

in this appeal".(see attached appendix "B"). Counsel was clearly ineffective for not
representing his client during a critical state of his trial or objecting to the

illegaly stacking of his clients sentences as he so admitts. (Choate affidavit at 5)

Applicant has established that counsel was ineffective for lack of a pre-trial invest-
igation. Applicant has in fact introduced evidence which was withheld from trial, and
obtained in a indapendant investigation, which would have changed the outcome of his
trial. Williams v. Taylor, 120 S.Ct. 1495 (2000).

OBJECTION TO THE STATE'S ANSWER OF
FAILURE TO PROCURE EXPERT WITNESS

Applicant contends the evidence obtained in his case is legally and factually
insufficient to support the trial Court's outcome. That it was illegally obtained
without a warrant and presented under the hearsay exception clause with no indica of

reliability. Tex. R. Crim. Evid. 803. Expert witnesses on this issue alone would have

made a substantial difference in his trial. The State claims that Applicant has failed

to show limited knowledge had any effect on counsel's ability to try the case,or what
an expert could have added to the defense? The State also points out that counsel

Choate is-well qualified for appointment in felony cases. Applicant states this is the
first time he has been informed that counsel Choate was appointed by the Court and
requests this Honorable Court review Applicant's objection to affidavit of John Choate
II. pg.2, Facts Not Apparent From The Record. (appendix “A" enclosed).

An expert on the issue of hearsay evidence would have explained: that there was
no indica of reliability which is required by law, and that a disclaimer in the toxiology
report stated that the test had not been confirmed and should not be used for non-
medical purposes. (see appendic "C" attached). An expert would have brought up several
other issues concerning Applicant's blood sample, such as; l. Distingusing plasma,
serum blood, and whole blood. 2. In vivo and invitro variation in blood testing. 3.
Medication and disease, 4. Further contamination of blood specimenns. 5. No chain of
custody of his blood test. All of which would have educated the jury on the science of
blood testing.

An expert witness also would have pointed out that in Desilets's blood test, the
antiseptic used to cleanse the area contained alcohol in amounts sufficient to produce
measurable amounts of alcohol on a gas chromatograph. In an emergency room settings, it
is routine to use an alcohol-based antiseptic to clean the skin. An Expert witness would
have given the jury (and defense counsel) the knowledge that a mere fraction of a drop
of extraneous alcohol that had been applied to the skin had been responsible for a
possible miscarriage of justice. Counsel's ineffective assistance in failing to procure
an expert in blood samples and testing undermines any confidence that the outcome would
most likely have been different, because, had an expert been procured, a viable strat-
egy would have presented itself. Only then could counsel have made an informative

decision regarding his client's strategic avenue most sound at best securing his client's

interest in a fair trial.

The State goes on to state, counsel Choate claims 'this was a suppression issue
only. An expert would not have helped and may have hurt." (see Choate affid. at 4).
However, if Choate had consulted an expert in this area, counsel would have had a better
understanding of the Texas Rules of Evidence, R. 803, of the buisness hearsay rule,

which states; Reoords of regularly oorducted activity, a memorandum report, reoord, or data
oaqldamIL hianyfonn,ofzxis,evats,oorhths,=O¢r»ovco)=O'>

THE STATE OF TEXAS MONTGOMERY COUNTY, TEXAS

APPLICANT'S OBJECTION TO THE STATE'S
FINDINGS OF FACT AND CONCLUSION OF LAW

l. Applicant was charged with two counts of intoxication assault. he pled not
guilty claiming he was the passenger of the vehicle. Due to the State's withholding
of exculpatory and mitigating evidence and ineffective assistance of counsel, the jury
found him guilty and his sentences ran concurrent. Brady v. Maryland, 83 S.Ct. 1194,
10 L.Ea.2d 215 91963). `

2. On October 6, 2014, Applicant did file his application for habeas corpus

putting forth seventeen grounds of constitutional violations with strong merit.

3. Attorney Choate responded with a Court ordered affidavit on 12/24/14, and
Applicant filed his objection under 33.1 of the R.App.Proc. to counsels affidavit
on 1/21/15, see appdx. "A" attached.

4. Applicant has no knowledge of Choate being appointed to him during his trial.
see append. "A", pg.2, facts not apparent from the record, where counsel frauded his
client, and rendered ineffective assistance of counsel. Perez v. Carrigan, 822 S.W.2d

261, 265 (Tex.App.-corpus christi 1991)

5. Choate was ineffective and did not have a defense in place during this trial.

Strickland v. Washington, 466 U.S. 688 (1984).

6.Choate hired an investigator to interview eyewitnesses and add to his inefective
assistance of counsel for doing so by shunning his responsibility. Butler v. State,

716 S.W.2d 48 (Tex.Crim.App.l986).

7. Counsel Choate denied his client expert witnesses in his defense in several
areas which would have assisted in his trial as well as a defense theroy. Johnson v.

Texas, 959 S.W.2d (Tex.Crim.App.l997).

8. Prosecutor Fryer engaged in with holding exculpatory and mitigating evidence,
threatened material witnesses with imprisonment or change there testimony on defenses
behalf, tampered with documents, as well as prejudiced Applicant with verbal abuse and

engaged in a physical altercation during the trial.

9. On May 21, 2009, the jury verdict was read into open Court with Applicant

present, just as the judgement of conviction states. see append. of exhib."E".

10. On May 26, 2009 Applicant was not sentenced by Judge Ernst in any Court,
and the stacking did not occur until June 1, 2009, in judges chambers, just as the

judgement of conviction reflects. see append. of exhib. "L"

11. Applicant's appellate counsel was in fact working in and for the district
attorney's office while he so called represented his client-but failed to include his
client in his direct appeal. Strickland v. Washington, 466 U.S. 688 (1984); Powell v.
Alabama,287 U.S. at 68-69, 53 S.Ct. at 63-64.

12. The fact remains Griffin did not include his client in any stage of the
direct appeal and failed to address several constitutional violations in his clients
trial, shows clearly that counsel took action against his client while laboring under

a conflict of interest. Axel, 757 S.W.2d at 374.

13. Applicant has presented 16 grounds befour us, and the Court of Criminal
Appeals has already found Griffin ineffective in assisting his client by citing in
there opinion Ex Parte Wilson, 956 S.W.2d 25 (Tex.Crim.App.l997); see Desilets, 2012,
WL 333809; appen. of exhib. "G".;Ex parte Jarett, 891, S.W.2d 935 (Tex.Crim.App.1994).

14. Judge Ernst abandoned the case on June 1, 2009 after the special setting in

judges chambers in which he signed a cumulation order. Applicant was tried by two judges.

15. Prosecuting district attorney Fryer stated in open Court and on the record
that he did in fact change and alter a goverment document (lab report) and then knowingly

entered it into evidence before the Court. thus, engaging in criminal activity.

16. Applicant has provided exculpatory and mitigating evidence which was withheld
at trial and uncovered in an independent investigation proving that Applicant could not

have been driving the vehicle at the time of the accident.

CONCLUSION OF LAW

l. Their remain several controverted, previously unresolved facts material to the
legality of Applicant's confinement. Applicant has brought forth exculpatory and mitigat-
ing evidence which reveals Applicant is actually innocent of the crime in which he is

incarcerated for. There is an overwhelming necessity for a evidentiary hearing.

2. The trial Court errored in cumulating Applicant's sentences and compounded the
error by sentencing him twice in violation of the Fifth Amendment. U.S. v. Osborn,
Ex Parte Padilla, 666 S.W.2d 111 (Tex.Crim.App. 1984); Ec Parte Barley, 842 S.W.2d 694
695 (Tex.Crim.App. 1992).

3. Counsel Griffin on appeal rendered ineffective assistance of counsel and
shuned his obligation to consult or include his client in the direct appeal process,
shows he worked under a conflict of interest against his own client and in fact rendered
ineffective assistance of counsel. Ex Parte Flores, 387 S.W-3d 626, 639 (Tex.Crim.App.
2012). 4

4. Applicant has shown that Judge Ernst abandoned the case and prejudiced the
defendant during the trial by allowing prosecution misconduct and illegal evidence into
trial. U.S. v. Osborn, Ex parte Padilla, 666 S.W.2d lll, (Tex.Crim.App.1984);U.S. v.
Green, 735 F-2d 1203(9th Cir.l984).

5- lt is apparent on its face that counsel Griffin labored under a conflict of
interest in the above case and altered the outcome of the direct appeal. Thus, by not
including his own client in the direct appeal process, and keeping him in the dark.
Strickland v. Washington, 466 U.S. 668 (1984); Powell v- Alabama, 287 U.S. at 68-69,
53 S.Ct. at 63-64.

6. Applicant argues strongly that the State used a grand jury subpoena to further
a police investigation and without the procurement of a warrant. Scherber, 384 U.S.

at 770-771, 86 S.Ct. at 1835-36; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26
L.Ed.2d 419 (1970). `

7. Applicant has provided documents, medical reports, accident reports, and
emergency care reports which are listed on pg. 19 of this Objection, and proves that
Applicant was the passenger of the vehicle at the time of the accident. see appendix

of exhibits A, B, M., ; append. C and D attached.

8. Applicant has shown several grounds, as will the record reflect ineffective
assistance of counsel prejudiced his trial by both of his counsel's. Bothatthe jury that a mere fraction
of a drop of extraneous alcohol that had been applied to the skin had been responsible
for the miscarriage of justice. An expert in this instant would have concluded his
_testimony with several more issues concerning Desilets's blood serum test, such as;

A. Distinguishing plasma, serum blood, and whole blood.

B. In vivo and invitro variation in blood testing.

C. Medication and disease.

D. Further contamination of blood specimens.

B. No chain of custody in blood testing.

All of the above would have educated the jury in the science of blood testing.
However, Choate insistently states that "Our defenses also included attacking the
blood results¥ and "an expert would not have helped and may have hurt."

This response by Choate only reveals the ineffectiveness of Choate's counsel in
this trial towards Desilets.

Further, Desilets's family conducted their own investigation after his
conviction and brought to light exculpatory evidence withheld from trial in the form
of a disclaimer attached to a toxiology used to convict Desilets. It was explained
by medical personal that Desilets was treated for medical purposes only and that was
why his toxicology report of drugs and alcohol dated 12/7/2001 came with a disclaimer
stating; "Drugs reported as positive have not been confirmed by a second method and
should not be used for non-medical purposes."

This disclaimer was noted on page #7 of the toxicology report which was _
withheld as exculpatory evidence by Rob Fryer lead prosecutor at trial. Thus resultin
in a"brady"violation which rises to the level of affecting the outcome of the trial.
In clear contradiction of Choate's affidavit response in question nine. see appendix
of exhibits provided with this habeas proceeding, exhibit M, titled: forensic report
Memotial Herman Hospital toxicology report, pg#?, dated 12/7/2007.

In closing, under Texas law, the proponet of scientific evidence must show
by clear and convincing proof and outside the presence of the Jury, that the
proffered evidence is sufficiently relevent and reliable to assist the Jury in
accurately understanding other evidence or in determining a fact issue. Tex. Rules
of Evid., Rule 702. l

Therefore, reliability of "soft science evidence" may be established under
Texas law by showing that:

1. The feild of expertise involved is a legitimate one;

2. The subject matter of the experts testimony is within the scope of that fieL

3. The experts testimony properly relies upon or utilizes the principals
involved in that field. Tex. Rules of Evid., Rule 702.

Applicant point out that noneraise two valid objections that would have
allowed King to testify without fear of further criminal prosecution. Thus, Desilets
was unable to present evidence at trial of his actual innocence due to the fact his
counsel failed to raise the proper objection,therefore, Desilets was prejudiced by
his Own counsel.

As a consequencezi§counsels action, Desilets was deprived of his constitutional

right to effective assistance of counsel and due process of law.

A2ELl§ANI1§_BE§2QN§E_AND_QBQEQIIERLLBQJQHE§IIQN_Q

To establish the requisite probability that Desilets is acutal innocent and
in order to fit within the fundamental-miscarriage-of-justice exception to the
procedural default rule, Desilets must support his allegations with new, reliable,
evidence that was withheld as exculpatory evidence by prosecution and was not presented
at trial. `

Applicant also must show that it was more likely than not that by the actions
of lead prosecutor Rob Fryer no reasonable Juror would have convicted him in the
light of that new evidence. Desilets has in fact provided that exculpatory evidence
in this habeas proceeding wich was withheld at trial.

TJ.

In John Choate's opinion and response no prosecutorial misconduct occured
during trial that would warrant a reversal. However, the record will reflect that
lead prosecutor Rob Fryer in fact engaged in the following;

l. Engaged in a verbal and physical (fist fight) confrontation in the Court

during trial with Appelant's counsel John Choate, Jr..
2. Threatened a witness for the defense with criminal prosecution and

incarceration if she did not change her testimony to what she actually saw.

3. Violated Tex. Penal Code § 37.07(a)(2), tampering with or fabricating
physical evidence. '

4. Violated Tex. Penal Code § 37.10(2)(a), tampering with a goverment record.

5. Violated Tex. Exclusinary Rule Art. 38.23 of the Code of Criminal Procd.

6. Court records will show Rob Fryer admitted in Court that he changed the
results of the blood serum test before admitting it into evidence.

In this trial the State's lead prosecutor Rob Fryer abused and misused his
power thus resulting in illegal activities and a complete abondoment of Desilets's
constitutional guarantees. The State stepped outside the scope of their authority
in abusing the power entrusted to them, therefore, exhibiting prosecutorial misconduct
that warrants a complete reversal of Desilets's charges on the grounds of actual

innocence.

_§}QN§;LQ§ION ANQ PRAYER_._

Applicant requests after having considered the Affidavit put forth by counsel
John Choate, Jr. responses to the nine questions presented to him by the Court.
The Court also consider Applicant's objections to said responses put forward in

said affidavit.

Wherefore, Premises Considered, Applicant Paul R. Desilets, respectfully Prays
that this Honorable Court consider his objections to John Choate, Jr.'s affidavit
for ineffective assistance of counsel and Grant his application for Writ of habeas

Corpus and release him from his unconstitutional confinement.

13.

b

lNMATE CL IO

l Paul R. Desilets, being presently incarcerated in the Goree Unit of
the Texas Department of Criminal Justice, declare under penalty of purjury, pursuant
to 28 U.S.C. § 1746, that the facts in this Objection are true and correct.

Executed on this the 15th day of January, 2015

e==_
. esilets

C F OF ERVI _

I, Paul R. Desilets, being presently incarcerated in Walker County, Texas
and under penalty of purjury pursuant to 28 U.S.C. § 1746, do hereby affirm that

I have delivered a copy of this Objection to the prison mailroom officials for

delivery to the following:

Executed on this the 15th day of January, 2015

Barbra Gladden Adamick Louise Pearson, Clerk
District Clerk, Montgomery County Court of Criminal Appeals
301 N. Main St. Capitol Station

P.O. Box 2985 _ Austin Texas 787ll

Conroe Texas 77305

14.

APPENDIX "B"

COURT OF APPEALS NINTH DISTRICT OF TEXAS AT BEAUMONT
DESILETS V. STATE NO. OQ-lZ-OO§Z€-CR, 2013 WL 395895 (TeX.App.-Beaumont
Jan. 30, 2013, no pet.)

l. " THE ISSUE MIGHT ARISE IN SUBSUQUENT HABEAS PROCEEDINGS."

lllliilll

lAN 3 ll 20l3

CAFlOLAllNEHAFlLEY
CLEHKOFTHECOUHT
NINTH COUHTOFAPPEALS

.l.n The
Court oprpealS

Nl'nth. District 0f Texas at Beaum()nt

NO. 09~]_2-0()526-CR

PAUL RAY DESILETS, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 359th District Court

Montgomery County, Texas

Trial Cause No. 08-12-11262 CR

MEMORANDUl\/l OPIl\llOl\l
This Court affirmed the trial Courts judgments in an appeal hy Paul Ray Desilets
of convictions for intoxication assault See Desilets v State, No. 09-09--00375-CR, ZOlO
WL 3910588 ('l`ex. App.-»Beaun'ront Oct. 6, ZOlO, pet, rel”d); see also l"ex.. Pcnal Code
Ann. § 49.07 (West ZOl_l). Later the trial court denied Desilets’$ motion for entry of

judgment nunc pro tunc, and Desilets Hled a notice of appeal

"‘The Standard to determine Whether an appellate court has jurisdiction to hear and
determine a case ‘iS not whether the appeal is precluded by law, but Whelher the appeal is

authorized by law."’ Blcmmn v_ State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012)

l

(quotmg Ab/)Ozr v. State, 27l S.W.3d 694; 697 (Fl`ex. Crim. App. 2008)). A nunc pro tunc
judgment may be appealed [d. at 904. Errors that are not the result of judicial reasoning
are sometimes considered clerical errors that can be frxed by a nunc pro tunc order. See
Ccllz'n:: Sraze, 240 S.W.3d 925, 923 (l`ex. Crim. App. 2007). ln this case, the trial court
denied Desilets’s motion to delete the cumulation order from the judgment “The trial
courl can=_~)r, 1rrrrough a judgment nunc pro tunc7 change 21 courts records to reflect what
it believes should have been done.” [cz’. The signing of an order denying a motion for
entry of judgment nunc pro tunc is not an appealable event ,Everezt v. State, 82 S.W.3d
`7°>5, 735 l;'l`ex, App.~»Waco 2002, pet dism’d).

ln response 10 our inquiry regarding jurisdiclion, Desilets requested mandamus
relief lie contends the trial court had a ministerial duty to correct the judgment by
deleting the cumulation order. See Ei' parte Maa’dz`,'rg,_?() S.W.3d l3l, 135-36 ('.l_`ex. Crim.
/-\pp. 2002) (A trial court’s oral pronouncement lthat sentences be served concun'ently
controls over the written judgments cumulation order.). The parties` submissions lo the
trial court on Desilets’s motion for judgment nunc pro tunc reflect the dispute Desilets
claimed that the trial court orally pronounced sentence without stating that the sentences
for intoxication assault would be served consecutively The State claimed that a visiting
judge conducted the trial and received the jury’s verdict7 that the judge of the 359[h

District Court reconvened the proceedings the following day and the panies agreed to

recess until the visiting judge could return to decide the issue of cumulau'orr, and that the

visiting judge pronounced sentence and ordered that l`)esilet’s, sentences for intoxication
assault be served consecutively See Tex. Penal Code Ann. § 3.03(b)(l)(A) (West Supp.
2012). v

Desilets failed to challenge the trial court’s decision to cumulate the sentences in
his original appeal An order denying a motion for judgment nunc pro tunc is not
appealable l,l`nder the circumstances it would not be proper for this Court to grant a writ
of mandamus or exercise jurisdiction over this appeall We dismiss this appeal for lack of
jurisdiction

APPEAL DlSl\/HSSED.

DAVlD GAULTNEY
lustice

Opinion Delivered January 30, 2013
Do Not Publish

Before Gaultney, 'Kreger, and Horton, JJ.

l To resolve the jurisdictional and procedural issues before us, we need not
determine whether the trial court correctly ordered cumulation, and the issue might arise
in subsequent habeas proceedings Accordingly, we do not address the merits of the
issues attempted to be raised in this appeal

APPENDIX "c"

FORENSIC REPORT MEMORIAL HERMAN HOSPITAL TOXIOLOGY-DRUGS OF 12/17/07
DISCLAIMER ON REPORT : DRUGS REPORTED AS POSITIVE HAVE NOT BEEN CONFIRMED
BY A SECOND METHOD AND SHOULD NOT BE USED FOR NON-MEDICAL PURPOSES PG. 7

MEMURIQL HERNQN
THE NUDDLQNDE

1

E/l?/E@BY

Ui:lT:E?
PQBE l

HDBPITQL

952@ PINEBRDFT

THE NUBDLQNDEn TX 773&@
B/N 1559
%L ETQ| *%
Name: DEEILETS~ PQUL Sample ID: DQUL
Datient ID: 47@5515® Sample Type: Sevum
Date of Birth: w?/ES/l?§? Doctnw: TRUUNE
Qge: 43 Eollection Date/Time: 13/17/2@®7 M@:BB
Sex: M Run Date/Time: 13/17/£@@7 @i:i@
Location: ER Rack/Dos/Rap: BE/E/l
Pat. Eomment: dsjjfp
Sample Dommant: é;V//
Dilution:
Chemistvv Reeults Units Refewence Range Remavke
ETOH 246.5 mg/dL E.W - l@m.@ HIEH
t
In§trument Endes 7
t 9` '
47059150_7351

DESILETS, pAUL
DoB:07/25/1954

W A=12/17/07

M
53Y SER:EMR

lllllllllllllllllllllllllllllllllllllll

%/-U!i':'.ii~U}.:»_'.'-J. _\_ ,.`,i,

DESILETS, PAUL WERZ 17

DR.

TRUDNG, KEVIN ANH WERZ

07/25/1959 48 YRS MALE
(0013)0000-47059150 EMERGENCV PAT

MHHS- THE WOODLANDS
9250 PINECROFT
HOODLANDS TX 77380

C H E M l S T R Y

Collection Date: 12/17/07
Weekday: MON
Collection Time: 0036
Units Ref. Range

---- BASIC METABOLIC PANEL COMPONENTS

SODIUM @ 138 mEq/L [135-145]

PorAsSluM @ 4.1 mEq/L [3.5-5.N

cHLoRIDE @ 98 mEq/L [95-109]

COZ @ 27 mEq/L [24-32]

BUN @ c 20 mg/dL [7-22]

CREATININE @ ' 1.3 mg/dL [0.5-1.4]

GLucosE @ 207 H mg/dt [65-110]

ANION GAP @ 17 mEq/L

cALcIuM @ 9.2 mg/dL [8.5-16.5]
---- GENERAL CHEMISTRY

AMYLASE @ 131 H U/L [25-125]

LIPASE @ 62 H U/L [22-51

LIVER FUNCTION

TOTAL PROTEIN @ 6.4 g/dL [6.4~8.4]
ALBUMIN SERUM @ 3.7 g/dL [3.5-5.0]
BILI TOTAL @ 0.6 mg/dL [0.2-1.3]
ALK PHoS @ 49 u/L [39-117]
AST (sGOT) @ 632 H u/L [0-37]
ALT (SGPT) @ 714 H u/L [0-40]

Legend:

H = High

@ = SODIUM, POTASSIUM, CHLORIDE, COZ, BUN, CREATININE, GLUCOSE, ANION GAP. CALCIUM, TOTAL PROTEIN

, ALBUMIN SERUM, BILI TOTAL, ALK PHOS, AST (SGOT), ALT (SGPT) Perfovmed at MHWL

@ = AMYLASE, LIPASE Performed at MHWL

PRINT DATE: 12/18/07 0208

PAGE 1

CONTINUE...

MEMORIAL HERMANN HOSPITAL SYSTEM
Laboratory Services
DISCHARGE REPORT

-..'\.»;")S¢'_z\.)/:'b.i 1.. /u/

DESILETS, PAUL NERZ 17
DR. TRUONG, KEVIN ANH WERE
07/25/1959 48 YRS MALE

(0013)0000-47059]50 EMERGENCY PAT

MHHS- THE NOODLANDS
9250 PINECROFT

NOODLANDS TX 77380
C A R D l A C A S S E S S M E N T
Collection Date: 12/17/07
weekday: MON
Collection Time: 0036

Units Ref. Range

---- MYOCARDIAL INJURY

TROPONIN-T @ :)1:)\.':-'

11 /' \.'.'
DESILETS, PAUL WERE 17
DR. TRUONG, KEVIN ANH NERZ

07/25/1959 48 YRS
(0013)0000~47059150

MHHS- THE NOODLANDS
9250 PINECROFT

MALE
EMERGENCY PAT

WOODLANDS TX 77380
H E M A T O L 0 G Y
'\~`_*Goddebtion Date: 12/17/07
Weekday: MON
Collection Time: 0036
DIFFERENTIAL
EOS# @ .1
BASO# @ O
U R 1 N A L V S I S
Collection Date: 12/17/07
weekday: MON
Collection Time: 0239
---- MACROSCOPIC ANAL¥SIS
CLARITY @ CLEAR
COLOR @ YELLOW
---- URINE CHEMICAL
SPEC GRAVITY @ 1.020
pH @ 5.5
etucosE mg/dL @ NEGATIVE
BILIRUBIN @ NEGATIVE
KETONES mg/dL @ TRAcE *
Legend:
,* = Abnormal
@ = EOS#, BASO# Performed at MHWL
@ = CLARITY, COLOR, SPEC GRAVITY, pH,
PRINT DATE: 12/18/07 0208
PAGE 4
CONTINUE...

Units Ref.

K/cMM [ 0-.5]
K/cMM [ 0- 2]

Units Ref. Range

[cLEAR]
[YELLou]

[

PAUL R. DESILETS

AMENDED MEMORANDUM IN SUPPORT OF ORIGlNAL
APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. 08-12-11262-CR-II

TO THE HONORABLE JUDGE OF THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS

NOW COMES, Paul R. Desilets, Applicant, in this cause Pro Se, pursuant to Article 11.07 of
'the Texas Code of Criminal Procedure, and in compliance with Tex. Rules of App. Proc. 73.1 and raises
seventeen grounds for Habeas Corpus Relief. Applicant respectfully requests the Court grant him a
hearing and, after consideration of the issues and arguments presented therein, issue a Writ of Habeas

Corpus and Grant Applicant relief from his unconstitutional confinement.

I. INTRODUCTION
This is a post conviction application for a Writ of Habeas Corpus filed in pursuant to Article 11.07
of the Texas Code of Criminal Procedure. Mr. Desilets was convicted in a two count indictment with
the offense of intoxication assault. On May 21, 2009, a jury assessed punishment at five years on Count
No. I, and six years on Count No. II.

Judge Erwin Ernst orally pronounced the jury’s verdict in open court, with both sentences
running concurrent. On June 1, 2009, at a resentencing hearing titled “special setting,” Mr. Desilets in
Judge’s chambers, was resentenced and the sentences were illegally stacked to run consecutive
Following this Mr. Desilets was again orally pronounced in open court by Judge Kathleen Hamilton,
recused Judge from said trial, who resumed trial for resentencing

The Court of Appeals for the 9th District of Texas, at Beaumont affirmed the lower Court’s

judgment on November 30, 2010.

On April 20, 2012, the Court of Criminal Appeals issued a Mandate Granting Applicant
an out-of-time Petition for Discretionary Review (P.D.R.), Pursuant to Art. 11.07 (west
supp.2010), No. PD-0583-12. On December 17, 2012, the P.D.R. was denied by the Court of
Criminal Appeals. On March 9, 2013, Applicant filed a Writ of Certiorari in the Supreme Court
of the United States and on September 13, 2013, it was placed on the docket at No. 13-6927, and
in November of 2013, it was not of the l% to be considered and was dismissed.

Mr. Desilets now returns to the 359th J udicial District Court of Montgomery County, to
exhaust all of his required remedies in the Habeas proceedings Mr. Desilets requests that the
application be directed toward these convictions Any delay in filing this application is due to
changes in the Texas Code of Criminal Procedures Art. 11.07, Sec. 4. Section 4 now limits
petitioner to “one bite” of the apple in which Applicant delayed filing to ensure all possible
issues are raised in the initial Writ application.

The Texas Constitution Art. I §12 states “the Writ of Habeas Corpus is a writ of right and
shall never be suspended.” The Court of Criminal Appeals has also stated “if the legislature had
wanted time requirements to apply, it would have included such requirements in its 1995
overhaul of Art. 11.07.” see Ex Parte Carrio, 992 S.W. 2d 486, 490(Tex.Crim.ADo.l999).

Mr. Desilets has previously informed the state in writing that records would be required
for future litigation. Applicant was informed that all records and key witnesses are available as
to prevent prejudice to the State.

As set forth below, Mr. Desilets Rights under the United States and Texas Constitution
were denied him at trial, and the denials provide grounds for relief in a Habeas Corpus. For
these reasons, Mr. Desilets respectfully requests this Court Grant him an evidentiary hearing and

Grant his application for Habeas Corpus Relief.

II. STATEl\/[ENT OF THE CASE

On December 16, 2007, at approx. 11:30 p.m., Applicant, Paul R. Desilets and Ms.
Megan Somerville (Mason) were traveling back to Desilets residence after a full evening of
Christmas shopping to drop off Desilets for the night Somerville was driving and checking her

text messages while Desilets was an occupant in the passenger’s seat. Desilets did not see

anything prior to the accident for he was facing Somerville. When he regained consciousness
Desilets realized that he was in a great deal of pain and that Megan was gone from the vehicle.

Mr. Desilets, seeing smoke, tried to exit from the passenger’s side, however, the
passenger side door would not open due to damage sustained in the accident. Desilets then slid
over to the driver’s side, realized the door was ajar, and pushed it open easily. Desilets tried to
exit, but fell onto his back due to the serious injuries he had just received in the crash.

Mr. Desilets was transported to Memorial Hermann Woodlands where he met police and
family shortly after his arrival. Desilets was transported to Hermann Hospital Houston due to the
extensive injuries to his right side of his body, consistent with being a passenger in the vehicle.

Mr. Desilets was hospitalized for over 25 days while he underwent surgery to his right
side, and had to learn how to walk all over again. In fact, Desilets has still not recovered fully,
he faces future surgeries and therapy, and he also realizes that he will have to endure the pain
and problems from his injuries for the rest of his life.

Mr. Desilets medical records reflect all of the injuries he sustained in the accident are on
the right side of his body, which negate any notion that he was the driver of the vehicle in which
he was actually a passenger. Furtherrnore, all the medical records reflect Desilets had no head
trauma, no head or facial injuries, bruising, redness, marks, black eyes, or any head injuries
whatsoever, which would be consistent with the deployment of an airbag on the driver’s side of a
vehicle during an accident such as this one. Official reports from the scene state that the airbag
was deployed.

Mr. Desilets was not at any time placed under arrest or detained for a D.W.I. nor was a
warrant issued for a blood test during his treatment in connection with the accident. This was
due to the fact that police at the scene and the hospital all knew Desilets was not the driver of the
vehicle, but was the passenger on the evening of 12/16/2007, and that the driver of the vehicle
had fled the accident according to several witnesses who were at the scene that evening.

On 2/19/2008 and 3/4/2008 D.A. Prewitt obtained an illegal Grand Jury Investigation
order backdated by Judge Woods to 12/4/2007, whether this order was backdated specifically for
Desilets or left open for assisting all law enforcement, it was an abuse of discretion by the Court
and by Judge Woods, due to the fact that the accident had not occurred as of that date and did not
occur until 12 days later on 12/16/2007.

To compound judicial error D.A. Prewitt subsequently issued Grand Jury Subpoena’s to
aid police officers in obtaining medical records in the medical treatment of Mr. Desilets. D.A.
Prewitt signed the Grand Jury Subpoena’s and wrote “by Judge” under his signature as if the
Judge had signed them herself. Then Subpoena’s were sent to area hospitals to obtain medical
records on Desilets in a fishing expedition when police could not find the driver of the vehicle
involved in the accident which occurred on 12/16/2007.

Consequently D.A. Prewitt, in order to obtain an arrest of Desilets falsified Government
documents when he tampered with (fabricated) a Grand Jury Subpoena (a government
document) and impersonated a public servant (a Judge) with full intent to induce another (hosp.
records admin.) to submit to his pretended official authority (a Judge) and release personal
medical treatment records of Desilets.

Furthermore, during the pre-trial hearing, seven days before trial, Judge Hamilton recused
herself from the trial and sat visiting Judge from outside the county to preside over the trial.
While doing so Judge Hamilton provided no notice and no written order of assignment Also
during the pre-trial hearing, visiting Judge Ernst granted the prosecution a deadly weapon
finding, thus only seven days before trial and with a standing discovery order in place, defense
counsel objected, but the visiting Judge allowed it.

Defense counsel asked for a continuance of ten days due to the finding and to obtain
expert witnesses However, this request was also denied.

Mr. Desilets also was deprived a fair and impartial trial due to the prosecuting attorney
Robert Fryer violating the Rules of Professional Conduct when he provoked and engaged in a
physical confrontation (a fist fight) with the defense attorney Choate in the courtroom during
trial proceedings Both bailiffs had to break up the altercation while visiting Judge Ernst did
nothing except resume the trial.

Even during the testimony phase of the trial, the States key witness Dr. Troung testified
that he did not know who took the defendant’s blood test, if there was a chain of custody, or even
if it was the defendant’s blood test, however, he did testify that the results he was shown had
been tampered with and he did not know by whom. A.D.A. Fryer, at this time stated in open
Court that he had changed the results of the test before entering it into evidence. Defense

counsel again asked for a suppression of the evidence for the above reasons however, this was

also denied.

Mr. Desilets was falsely tried and convicted of a crime he did not commit and on May 21,
2009, he was sentenced in open Court when Judge Ernst read the Jury’s verdict to the Court
running both sentences concurrent.

On June 1, 2009, Approx. 12 days after trial and sentencing, Desilets was transported
back to Court, for a special setting, in the Judge’s chambers where prosecuting attorney Fryer
was presenting a motion to cumulate the sentences visiting Judge Ernst reluctantly agreed,
Signed the motion and quickly left the Judge’s chambers ln fact, Judge Ernst left the courthouse
completely. Recused Judge Hamilton resumed the case and sentenced Desilets in open Court for
a second time thereby illegally cumulating the sentences and double judging Mr. Desilets.

Mr. Desilets Constitutional Rights have been violated during these proceedings as well as
his rights to Due Process and Due Course of Law. Mr. Desilets now seeks relief as briefed

below.

IV. GROUNDS FOR RELIEF

GROUND ONE: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 And Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When Counsel Failed

To Investigate Any Avenues Of Defense.

GROUND TWO: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Attomey
Failed To Procure An Expert Witness.

GROUND THREE: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Attomey

Failed To Investigate Limitations On Consecutive Sentences.

GROUND FOUR: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Attorney
Failed To Investigate And Interview Eyewitness Testimony.

GROUND FIVE: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Appellate
Attomey Neglected Legal Matters Entrusted To Him.

GROUND SIX: Applicant’s Right To Due Process And Effective Assistance Of Counsel Under
Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Appellate
Counsel Burdened By An Actual Conflict Of lnterest Did Not Act With Competence,
Commitment, And Dedication To The Best Interest Of His Client While Laboring Under The
Conflict Of lnterest.

GROUND SEVEN: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Trial
Counsel Failed To Object And Seek Relief For Prosecutorial Misconduct.

GROUND EIGHT: Applicant’s Right To Due Process And Effective Assistance Of Counsel
Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And
Fourteenth Amendments To The United States Constitution Were Violated When His Counsel
Failed To Procure An Expert Witness. Specifically, Applicant Complains That The Trial Court
Abused Its Discretion And Denied Him A Fair and Impartial Trial By Admitting lnto Evidence
A Report Containing An Alcohol Level Test Which Was Obtained Illegally And With No Indica
Of Reliability, And Trial Counsel Failed To Dispute The Blood Test Results.

GROUND NINE: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article l Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused ItS Discretion And Denied Him A F air And Impartial Trial.
Speciflcally, Applicant Complains The Trial Court Erred And Denied Him Due Process And A
Fair Trial By Denying His Motion To Suppress, And Lack Of Legal And F actual Sufficiency Of
A Grand Jury Subpoena. Applicant Complains That the Court Of Appeals Erred and Overlooked
The trial Courts Abuse of Discretion by Denying Him His Motion to Suppress.

GROUND TEN: Applicant’s Right To Due Process Due Course Of Law And Equal Protection
Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth,
Sixth And Fourteenth Amendments To The United States Constitution Were Violated When The
Trial Court Abused Its Discretion And Denied Him A Fair And Impartial Trial. Specifically,
Applicant Complains The Trial Court Erred And Denied Him Due Process And A Fair Trial By
Denying Him An Expert Witness ln Lieu Of The Confrontation Clause With No Chain Of
Custody.

GROUND ELEVEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A F air And Impartial Trial.
Specifically, Applicant Complains The Trial Court Erred And Denied Him Due Process And A
Fair Trial By Insufficient Notice Of Intent To Seek Affirmative F indings Of A Deadly Weapon,
And Denial Of An Expert Witness.

GROUND TWELVE: Applicant’s Right To Due Process Due Course Of LaW And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A F air And Impartial Trial.
Specifically, Applicant Complains That The Court of Appeals Erred And Overlooked The Trial
Courts Abuse Of Discretion By Denying Him His Sixth Amendment Right To Confrontation.

GROUND THlRTEEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A F air And Impartial Trial.
Specifically, Applicant Complains That The Trial Court Erred And Denied Him Due Process
And A Fair Trial By The Lack of Jurisdiction Of The Offense And J udicial Misconduct.

GROUND FOURTEEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A Fair And Impartial Trial.
Specifically, Applicant Complains That The Trial Court Erred And Denied Him Due Process
And A Fair Trial When He Was Tried By Two Judges In The Same Trial And Sentenced Twice.

GROUND FIFTEEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A F air And Impartial Trial.
Specifically, Applicant Complains That The Court Of Appeals Erred And Overlooked The Trial
Courts Abuse Of Discretion By The Video Evidence Adduced At Punishment Was The Results

Of An Unconstitutional Detention.

GROUND SIXTEEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When The Trial Court Abused Its Discretion And Denied Him A Fair And Impartial Trial.
Specifically, Applicant Complains That The Court Of Appeals Erred And Overlooked The Trial
Courts Abuse of Discretion By The Video Adduced At Punishment Includes Portions Of

Unconstitutional Custodial Interrogation.

GROUND SEVENTEEN: Applicant’s Right To Due Process Due Course Of Law And Equal
Protection Of Law Under Article I Sec. 10 and Sec. 19 Of The Texas Constitution And Under
The Fifth, Sixth And Fourteenth Amendments To The United States Constitution Were Violated
When He Was Found Guilty And Deprived Of His Liberty For Crimes Of Which He Was
Actually Innocent.

[GROUNDS ONE THROUGH EIGHT WILL BE BRIEFED AS FOLLOWS]
INEFFECTIVE ASSISTANCE REVIEW ON HABEAS-CORPUS

The Sixth Amendment guarantees a defendant in a criminal case not simply the right to
counsel but to “reasonable effective” assistance of that counsel. Strickland V. Washington, 466
U.S. 688 11984).l This Case was adopted for Texas Constitutional claims in Hernandez V. State
726 S.W.2d 53, 57 (Tex.Crim.ADD_. 1996).

In most claims of ineffective assistance of counsel, Texas courts employ the familiar test

set forth by the United States Supreme Court in Strickland. This test states that, on general
claims of ineffective assistance of counsel, a defendant must show (1) his counsel’s performance
fell below an objective stande of professional competence and (2) that there is reasonable
probability that, but for counsel’s unreasonable errors the results of the proceedings would have
been different. Strickland, 466 U.S. at 687-94. The Court’s have long stated that “the ‘proper
procedure’ for raising a claim of ineffective assistance of counsel is almost always Habeas
Corpus” Aldrich V. State, 104 S.W. 3d 840 (Tex.Crim.App. 2003) (quotation omitted). An
applicant may obtain Habeas relief for an ineffective assistance of counsel under Strickland by
showing that counsel’s performance “was deficient and that a probability exists sufficient to
undermine our confidence in the results that the outcome would have been different but for
counsel’s deficient performance.” Ex Parte Whitg160 S.W. 3d 46, 49 (Tex.Crim.App. 2004).

Specific instances of Counsel’s deficient performance will be broken down into eight
grounds as follows:

GROUND ONE - Counsel’s Failure to Investigate any Avenue of Defense

l The U.S. Constitution’s Sixth Amendment Right To Counsel is a fundamental right that is made applicable to the States through the
Fourteenth Amendment. See Gideon V. Wainwright, 372 U.S. 335 (1963); see also Argensinger V. Hamil, 407 U.S. 25, 29-33 (1972).

Applicant was denied effective assistance of counsel when his trial counsel failed to
investigate any avenues of defense, Specifically, trial counsel failed to investigate available
exculpatory evidence which, if presented, would have created reasonable probability that an
objectively reasonable juror would have decided that Desilets was not guilty of the crimes
against him. There Was enough information before trial counsel, including: (1) factual evidence
from the police report shows damage to the vehicle on the right side which is consistent with
Desilets injuries he sustained as the passenger of the vehicle. The right front and right side
damage reflected in the police report shows consistency with the medical records of the injuries
incurred by Desilets, which makes obvious he was not the driver of the vehicle. (2) Factual
evidence from the police report at the Scene of the accident shows that the driver’s side air bag
was deployed during the accident; however, Desilets medical reports clearly reflect that he had
no injuries to his face whatsoever. (3) Factual evidence from the police report shows severe
damage to the right side of the vehicle that Desilets was a passenger in, and would explain the
reason why Desilets exited from the driver’s side of the vehicle, it was the only exit. (4) Factual
evidence from the medical report also will explain why Desilets fell upon exiting the vehicle (`as
told by witnesses) this was due to the injuries he had just sustained to his right hip, knee, ankle,
wrist, and ribs which all were broken, and again consistent with being the passenger of a vehicle
in an accident with extensive damage to the right side.

In conjunction with the above facts the vehicle was impounded by the police and counsel
failed to obtain any evidence such as fingerprints from the steering wheel, footprints from the
pedals adjustment of the driver’s seat, or even the police inventory of the vehicle, which
contained Desilets briefcase, Ms. Somerville’s purse, extra woman’s shoes along with the
thousands of dollars worth of Christmas gifts which were all confiscated by police and held by
the State as exculpatory evidence before, during and after the trial. See Exhibit A, auto report
and Exhibit B, medical records attached.

Applicant contends that counsel was deficient in failing to investigate the sources for
exculpatory or mitigating evidence, that trial counsel’s actions did not constitute trial strategy,
and that there was prejudice resulting from failing to investigate and present the exculpatory
evidence that was available before and during trial.

When considering a failure to investigate claim the Supreme Court has held “counsel has

a duty to make reasonable investigations or to make a reasonable decision that makes particular

10

investigations unnecessary. In any ineffectiveness case a particular decision not to investigate

must be directly assessed for reasonableness in all circumstances applying a heavy measure of

deference to counsel’s judgments” Strickland V. Washington, 466 U.S. at 691, 104 S.CT. 2052.

A. FAILURE TO INVESTIGATE CONSTITUTES
INEFFECTIVE ASSISTANCE

Defense counsel’s failure to investigate potentially exculpatory or mitigating evidence
which would be material at trial and would probably affect the outcome of the trial, deprives a
defendant of effective assistance of counsel in violation of his constitutional rights.

The Strickland standard affords a measure of deference to trial counsel by way of
presumption that a challenged action might be considered sound trial strategy, however, the
deference afforded trial counsel’s actions as strategic choices is necessarily limited by the extent
of counsel’s investigation. Ex Parte Brig,‘zs. 187 S.W.3d 458. 468 tTex.Crim.Ar)p 2005). Thus,
where counsel fails to investigate an avenue of defense or mitigation, counsel’s effectiveness
should be judged by the reasonableness of that failure to investigate, not the ultimate probability

of the avenue’s success
B. APPLICATION AND ANALYSIS

As explained above, trial counsel’s failure to investigate any avenues of defense could
not have been strategic. Whether counsel’s omissions were due to inexperience or mere
inadvertence, this failure to investigate, fell below the objective standards of reasonable conduct
contemplated by Strickland.

Counsel’s ineffective assistance in failing to investigate undermines any confidence that
the outcome would most likely have been different, because, had an investigation been
performed a viable defense strategy would have presented itself. Only then could counsel have
made an informative decision regarding the strategic avenue most sound at best securing n
Applicant’s interests in a fair trial. The prejudice to Applicant is clear, meeting Strickland’s

second prong, by counsel’s failure to investigate any defense and counsel’s failure to provide a

sound trial strategy.

11

As a consequence of counsel’s actions Desilets was deprived of his constitutional rights
to due process and effective assistance of counsel. Accordingly, Applicant prays that he be

granted relief from his unconstitutional confinement. As he so prays below.

GROUND TWO - Counsel’s Failure to Procure an Expert Witness

Applicant’s Right To Due Process And Effective Assistance Of Counsel Under Article l
Sec. 10 and Sec. 19 Of The Texas Constitution And Under The Fifth, Sixth And Fourteenth
Amendments To The United States Constitution Were Violated When His Attomey Failed To
Procure An Expert Witness. Applicant was denied effective assistance of counsel when his trial
counsel failed to seek the opinion of an expert witness to assist with the investigation and
preparation for Applicant’s trial. Applicant’s trial counsel did not have any strategic motive for
not fully investigating his client’s medical reports and accident reports as well as using the
expert to assist in preparation for the cross-examination of witnesses “Trial Counsel’s financial
decision to do nothing about the obvious need to develop evidence concerning his client’s
medical history and how prosecuting attorney falsified documents to obtain such records along
with accident reports, did not reflect reasonable professional judgment.” Wiggins V. Smith, 539
U.S. 510, 534 (2003 ).

Defense counsel’s failure to investigate potentially exculpatory or mitigating evidence
which would be material at trial and would probably affect the outcome of the trial, deprives a
defendant of effective assistance of counsel in violation of his constitutional rights. E_xpart_e
Amezquita, -- -- S.W.3d -- -- (Tex.Crim.Api). 2006) WL3391037. An Applicant may obtain
Habeas relief for ineffective assistance of counsel under Strickland by showing that counsel’s
performance “was deficient and that a probability exists sufficient to undermine our confidence
in the results that the outcome would have been different but for counsel’s deficient
perfonnance.” Ex parte White. 160 S.W.3d 46. 49 (Tex.Crim.Api). 2004).

The Strickland standard affords a measure of deference to trial counsel by Way of a
presumption that a challenged action might be considered sound trial strategy, however, the
deference afforded trial counsels action as strategic choices is necessarily limited by the extent of
counsel’s investigation. Ex parte Briggs, supra

Thus where counsel fails to investigate an avenue of defense by the reasonableness of

that failure to investigate, not the ultimate probability of the avenue’s success

12

As explained above the trial counsel’s limited knowledge of his client’s medical and
mental history concerning the accident, how prosecution falsified documents to obtain medical
history, and accident reports concerning the vehicle damage required him to seek the opinion of
an expert, to properly investigate all avenues of defense,

Counsel’s ineffective assistance in failing to seek an expert to assist in the investigation
undermines the confidence that the outcome would not likely have been different, because, had
an investigation been performed into these areas a viable strategy would have presented itself.
Only then could counsel have made an informed decision regarding the strategy which was the
most sound and best secured Applicant’s interest in a fair trial.

As a consequence of counsel’s actions Applicant was deprived of his Constitutional
Right to Effective Assistance of Counsel and Due Process of Law. Accordingly, Applicant

should be granted relief from his unconstitutional confinement as he so prays below.

GROUND THREE - Counsel’s Failure to Investigate as to the Consecutive Sentencing

Applicant was denied effective assistance of counsel when his trial counsel failed to
investigate the constraints and statutes of the Code of Criminal Procedures § 42.08, and when his
appellate counsel failed to challenge the trial court’s decision to cumulate the sentences in his
original appeal. j

The Supreme Court of the United States reviewed and reaffirmed the principal that a
cumulation order may not be entered once the defendant has begun to serve his sentence because
such would violate the constitutional protection against twice punished for the same offense. §
parte Barlth 842 S.W.2d 694, 695 (Tex.Crim.App. 1992). Also the defendant must have
knowledge that the court is considering the cumulation of the sentences and defendant must
have the opportunity to be heard.

Applicant asserts his trial counsel at no time during the proceedings advised his client
that there was a cumulation order even being discussed. Mr. Desilets contends that on May 22nd
and May 26m, while his counsel was in hearings before the court, he was not present at those
hearings, had no knowledge of any legal proceedings transpiring to cumulate his sentences and

that his trial counsel failed to keep him in the loop and inform him of any such considerations or

proceedings

13

The records from the Montgomery County jail will clearly reflect that Desilets was not at,
allowed at or transported to court on either of the above dates and that Applicant was not
returned to court until June ls‘, some 12 days after he was sentenced in open court, as
documented in the district clerks criminal notes See Exhibit C page, 2 district clerks’ criminal
notes

On June 1, 2009, in Judge’s chambers Judge Ernst, who presided over the case, without
any notice to Applicant stacked the sentences and left the court house completely. Subsequently,
leaving recused Judge Hamilton to read yet another sentence into open court. See exhibit D,
orders of the Court, exhibit E, judgment of conviction by jury, & exhibit H, charge to the jury on
punishment with no stacking order.

Applicant contends that 1) a defendant’s sentence begins to run on the day it is
pronounced; and 2) Attempts to cumulate sentences after the defendant has begun serving his
sentence are “void”. .. Although we disavow the use of the term “void” in Vasguez, and rely
upon the Due Process Clause of the Fourteenth Amendment, we otherwise agree with
Applicant’s position. Once a defendant is removed from the courtroom and begins serving his
sentence, it is too late to cumulate the sentence imposed with an earlier one. Gray V. State, 291
S.W.3d 555, 558 (Tex.ADp. - Houston[14th Dist.] 2009, no pet.) The record indicates that after
the court announced the sentence defendant was removed from the courtroom and began his
sentence.

Applicant contends that all of the events transpiring with the Applicant’s motion to stack
are irrelevant anyway because once the sentence was imposed he was taken back into custody,
the sentence began to run. Tex. Code Crim. Proc. Article 42.09 § 1. states “a sentence begins to
run on the day it was pronounced.”

The sentences imposed by the jury began to run on May 21, 2009, and as mandated b1
T.C.C.P § 1, neither Judge Ernst nor Judge Hamilton had any authority to stack the sentences in
' violation of double jeopardy. See exhibit E, judgment of conviction dated 06/01/2009, listing
date sentenced on 05/21/2009. A trial court does not have the authority to alter or modify a
defendant’s sentence once the defendant has begun to serve his sentence. Grant V. State 247

S.W.3d 360, 370 (Tex.Crim.App. - Austin 2008); citing Williams V. State, 145 Tex. Crim. 536.
170 S.W.2d 482, 486 (1943).

14

Federal Courts have widely held that commencement of service of the sentence restricted
trial court’s power to correct or amend a sentence. E.G. United States V. Sacco. 367 F2d 368.
369 (2d Cir. 1966 ). This premise underlying this rule was that a sentence once imposed was to
be accorded the finality of a jury verdict and could not be increased without placing the
defendant twice in jeopardy. The imposition of a sentence, it was reassured, was tantamount to a
verdict of acquittal on the possibility of greater punishment. United States V. Benz 282 U.S.
304. 307, 51 S.Ct. 113, 75 L.Ed. 354 (1939).

Because the trial court did not exercise its statutory discretion to cumulate at the time of

the pronouncement, that order must be deleted from the judgment and Applicant’s sentences
should have ran concurrently. These are basic fundamentals of well established law which both
trial and appellate counsel disregarded An Applicant may obtain Habeas relief for ineffective
assistance of performance Ex parte White, Supra.

Thus, where counsel failed to investigate an avenue of defense or mitigation, counsel’s
ineffectiveness should be judged by the reasonableness of that failure to investigate, not the
ultimate probability of the avenues success

Counsel’s ineffective assistance in failing to investigate the applicable status of law
undermines any confidence that the outcome would not likely have been different, because, had
this investigation been performed, a viable strategy to get the consecutive motion dismissed
would have presented itself. Only then could counsel have made an informed decision regarding
the strategic avenue most sound and best securing Applicant’s interest in a fair trial.

As a consequence of counsel’s actions Applicant was deprived of his Constitutional
Right to Effective Assistance of Counsel and Due Process of Law. Accordingly, Applicant

should be granted relief from his unconstitutional confinement as he so prays below.

GROUND FOUR - Counsel’s Failure to Investigate and lnterview Eyewitness Testimony
Applicant was denied effective assistance of counsel and due process of law when his
trial counsel failed to interview and investigate eyewitness testimony, counsel’s failure to do so
rose to the level of constitutionally deficient performance given the gravity of the charges and
the fact that there were only a few adult witnesses to the scene of the accident. Trial counsel

relied exclusively on the investigation work of the State and based his own pre-trial

15

“investigation” on assumptions divined from a review of the States files U.S.C.A. Const.
Amend. 6.

Applicant was prejudiced by trial counsel’s failure to object to prosecution who
threatened and intimidated Ms. King with incarceration, if she could not positively identify the
driver of the vehicle she saw flee the vehicle at the scene of the accident. Threats by prosecution
in fact led Ms. King to change her initial testimony for defense before the court. Ms. King
testified that she in fact saw the driver of the vehicle flee the scene of the accident, which is the
same statement she made to police at the accident scene as an eyewitness on the night of the
accident.

An objection by Applicant’s counsel would likely have been successful, and counsel’s
failure to object prevented Applicant from presenting exculpatory evidence in the form of
testimony in support of his actual innocence claim.

A prosecutor violates Due Process by threatening criminal consequences for a potential
defense witness who is willing to testify for the defendant at trial, and that threat actually
intimidates the witness from offering exculpatory testimony.

As briefed in the ineffective assistance of counsel above, and guided by Strickland,
several courts have held that counsel’s failure to interview eyewitnesses to a charged crime
_ constitutes “constitutionally deficient representation”. ln Brvant V. Scott. 28 F.3d 1411, 1418
g5‘h Cir. 19941, the defense attorney failed to interview two eyewitnesses and “restricted his
pretrial investigation to discussions with the [defendant], review of the indictment against the
[defendant] and examination of the prosecutor’s file.” Applicant makes claim that information
relevant to the defense might have been obtained through better pretrial investigation of the
eyewitnesses and a reasonable lawyer would have made some effort to investigate the
eyewitness testimony. Applicant states under Strickland’S second prong he establishes
“prejudice” ~ a reasonable probability that, but for counsel’s unprofessional errors the results of
the proceeding would have been different. A “reasonable” probability is a probability sufficient
to undermine confidence in the outcome, Id. Under the discrete facts of this case Applicant
concludes that he has met the substantial burden of both Strickland prongs

As a consequence of counsel’s actions Applicant was deprived of his constitutional right
to effective assistance of counsel and due process of law. Accordingly, Applicant should be

granted relief from his unconstitutional confinement as he so prays below.

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GROUND FIVE - Counsel Neglected Legal Matters Entrusted to Him

Applicant was denied effective assistance of counsel when his appellate counsel
neglected legal matters entrusted to him. Even to the point that the Court of Criminal Appeals
upon Applicant’s filing for an out-of-time petition for discretionary review dated 2/1/2012, ruled
on Applicant’s request and granted him an out-of-time P.D.R., citing Applicant’s appellate
counsel’s neglect stating “the record reflects that Applicant is entitled to relief, but not due to any
breakdown in the system.” Also citing Ex parte Wilson, 956 S.W.2d 25 (Tex.Crim.Ar)p. 1997).
See Exhibit G, Court of Criminal Appeals Opinion.

In citing Ex parte Jarret, 891 S.W.2d 940, 944 “if appellate counsel’s action denies a
defendant his opportunity to prepare and file a petition for discretionary review, that defendant
has been denied his Sixth Amendment Right to effective assistance of counsel.” U.S.C.A. Const.
Amend. 6, V.T.C.A. C.C.P. Art. 26.04. See Exhibit F, affidavit of Michael T. Griffin.

Applicant complains that he had a right to participate in his appeal, and that appellate
counsel’s performance, or lack thereof, was objectively unreasonable and prejudiced Applicant’S
direct appeal.

As explained above, appellate counsel’s limited knowledge of Applicant’s case and
history required him to seek the opinion of his client, to properly investigate, and to include his
client in the appeal procedure. Whether counsel’s omissions were due to inexperience or mere
inadvertence, this failure to include his client on the direct appeal fell below the objective
standards of reasonable conduct contemplated by Strickland.

Given Applicant’s exclusion from the entire direct appeal process seriously undermines
any confidence that the outcome would not probably have been different but for Counsel’S
ineffective assistance

As a consequence of Counsel’s actions Applicant was deprived of his Constitutional
Right to Effective Assistance of Counsel and Due Process of Law. Accordingly Applicant

should be granted relief from his unconstitutional confinement as he so prays below.

GROUND SIX - Counsel was burdened by an Actual Conflict of lnterest and Did Not Act with
Competence, Commitment, and Dedication to the Interest of His Client While Laboring under

That Actual Conflict of lnterest.

17

Applicant was denied effective assistance of counsel and his right to that counsel under
the Texas and United States Constitution on direct appeal before the 9th Court of Appeals of
Texas Beaumont, by Court appointed appellate counsel Mr. Griffin, when Griffin represented
his client while burdened by an actual conflict of interest. Appellate counsel at the time of his
representing Applicant on direct appeal was still heavily involved with the district attomey’s
office where he was employed for several years

Appellate counsel failed to address even the most basic issues on direct appeal for his
client and therefore did not act with competence, commitment, and dedication to the best interest
of his client. United States V. Williams 205 F.3d 23, 29 (Z"d Cir. 2000), counsel’s conduct falls
squarely within the range of deficient representation

Due to the fact Applicant was left in the dark during the entire appellate process and in
spite of several attempts to contact his appellate counsel during this process it made it very
obvious and clear that appellate counsel labored under that conflict of interest and that his client
was prejudiced by this conflict. Critically, the Court of Appeal’s opinion made clear that the
§Ml_e_i_' Standard applies to all claims of ineffective assistance of counsel due to conflict of
interest claims 16th Amend. to the U.S. Const.. Cuvler V. Sullivan, 466 U.S. 355 (1980).

Had Mr. Griffin not been working and laboring under an actual conflict of interest and
had Desilets had proper appellate counsel he would not be incarcerated today. Thus, where
counsel failed to include Applicant in any part of the direct appeal process due to his laboring
under a conflict of interest and not acting with competence, commitment, and dedication to the
best interest of his client, counsel’s effectiveness should be judged by the reasonableness of that
failure to include Applicant, not the ultimate probability of the avenue of success

Appellate Counsel’s ineffective assistance in failing to include Applicant in the Whole
appeal process While burdened by an actual conflict of interest undermines any confidence that
the outcome of the appeal would not likely have been different, because, had Applicant been
included, a viable strategy, to include several constitutional violations upon direct appeal would
have presented itself. Only then could counsel have put forth an informed and complete appeal
regarding the strategic and most sound appeal best securing his client’s interest in a fair appeal.

As a consequence of Appellate Counsel’s actions Applicant was deprived of his
Constitutional Right to Effective Counsel and Due Process of Law. Accordingly, Applicant

should be granted relief from his unconstitutional confinement as he so prays below.

18

GROUND SEVEN - Trial Counsel’s Failure to Object and Seek Relief for Prosecutorial
Misconduct Substantially Prejudiced Applicant during His Trial. Applicant was denied effective
assistance of counsel and his right to that counsel under the Texas and United States Constitution
during his trial when trial counsel failed to object to the opposing prosecution’s misconduct
during trial and failed to seek relief for his client due to that prejudice.

During Applicant’s trial prosecution engaged in misconduct by swearing at Applicant and
his trial counsel and physically shoving, pushing, and punching Applicant’s trial counsel
invoking a physical confrontation before the Court, mainly a fist fight until bailiffs were able to
break the two men apart. Trial counsel at that time did not object to such remarks by prosecution
or the fact that Applicant’s counsel was assaulted by prosecution during Court proceedings

Here plainly a miscarriage of justice has resulted, both counsel’s remarks and actions
were sufficiently egregious as to constitute plain error and requires a plain error inquiry. These
violations not only violated Applicant’s rights but have seriously threatened the integrity of the
courtroom proceedings

Consequently, improper suggestions intonations and especially, assertions of personal
knowledge are apt to carry much weight against the accused when they should properly carry
none. Berger V. U.S., 295, 55. S.CT. 629, 70 L.Ed. 1314 (1935). Unfortunately, when a
prosecutor does act unfairly, there is little a defendant can do other than rely on his or her
attorney to lodge an appropriate and timely objection. A failure to make such an objection can
have devastating consequences for an individual defendant. Accordingly, Court’s have
previously held that a failure to object to professional misconduct can amount to ineffective
assistance of counsel. Gravelv V. Mills 87 F.3d 779, 785-86 (6th Cir. 1996); Rachel V. Borden
Kircher, 590 F.2d 200. 204 (6th Cir. 1978). Given counsel’s failure to object to the misconduct
during trial seriously undermines any confidence that the outcome would not probably have been
different but for counsel’s ineffective assistance

As a consequence of counsel’s actions Applicant was deprived of his Constitutional
Right to Effective Assistance of Counsel and Due Process of Law. Accordingly, Applicant

should be granted relief from his unconstitutional confinement as he so prays below.

19

GROUND EIGHT - Applicant was Denied Effective Assistance of Counsel When His Trial
Counsel Failed to Procure an Expert Witness to Challenge the Only Physical Evidence Against
His Client Which Was Obtained and Entered into Evidence Illegally and With No Indica of
Reliability. Applicant complains that a qualified expeit witness could have brought forth several
facts to the jury’s attention, which would have changed the outcome of the jury’s guilty finding
to innocent and let to his client’s acquittal on all charges against him.

Specifically, Applicant complains that the trial court abused its discretion and denied him
a fair and impartial trial by admitting into evidence a report containing an alcohol level test
which was obtained illegally and with no indica of reliability, and that his trial counsel failed to
procure an expert witness to dispute blood test results

DEFENSE EXPERT WITNESS TESTIMONY

Through use of expert witnesses, the party opposing the admission of tlieblood test
evidence should attempt to bring out evidence of the unreliability of the blood test results in the
current case. First and foremost, emphasize that every individual has a different serum or whole-
blood ratio and the use of an arbitrary or average conversion ratio does not give accurate results
for a particular individual. If an incorrect color cap was used on a vial, or if the anticoagulant or
preservative was omitted, this may offer “reasonable doubt” about the integrity of the blood
results particularly if gaps exist in the chain of custody.

For example, the antiseptic used to cleanse the area may contain alcohol in amounts
sufficient to produce measurable amounts of alcohol on a gas chromatograph. In emergency
room settings it is routine to use an alcohol-based antiseptic to clean the skin. It may also be
routine to use vacutainers and vials that are not in compliance with state regulations and statutes

An expert witness would have testified to the fact that blood taken from an accident or
car crash may also be contaminated if there was an intravenous fluid being administered at the
time the blood was drawn. The specimen may be inaccurate either (1) because of the increase
volume of fluid in the circulatory system changes the blood alcohol level or (2) the blood may
have been drawn from the same extremity that the IV is in, and therefore the sample is
contaminated with the intravenous fluids. If there was injury to the defendant, and the
paramedics responded, it is very likely that an IV was started in route to the emergency room.
Applicant contends that all of the above apply to his cause, and that the failure to provide an

expert witness in this area prejudiced him and the outcome of the trial.

20

SCIENTIFIC AND SURVEY EVIDENCE

Under Texas law, the proponent of scientific evidence must show, by clear and
convincing proof and outside the presence of the jury, that the proffered evidence is sufficiently
relevant and reliable to assist the jury in accurately understanding other evidence or in
determining a fact issue. Tex. Rules of Evid.. rule 702.

For a scientific theory to be considered relevant, a proponent must satisfy the following
criteria before the proposed evidence may be admitted under Texas law: (1) the underlying
scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the
technique must have been properly applied on the occasion in question. Tex. Rules of Evid.

Rule 702.

Applicant points out that none of the above Rules of Evidence were applied in his trial
and counsel did nothing to dispute the only physical evidence against his client.

As a consequence of council’s actions Applicant was deprived of his Constitutional
Rights to Due Process and Effective Assistance of Counsel. Accordingly, Applicant should be

granted relief from his unconstitutional confinement as he so prays below.

THE TOTALITY OF COUNSEL’S INEFFECTIVE ASSISTANCE

The eight grounds of ineffective assistance stated above constructively denied Applicant
his Sixth Amendment Right to Counsel as outlined by the Supreme Court in United States V.
Cronic_ 466 U.S. 648 (1984). If the Court determines these issues fall under Cronic, that
Applicant need not prove prejudice under Strickland, However, if the Court decided these
grounds fall under the two prong test established in Strickland, the Applicant requests the Court
also review the totality of representation as discussed in Ex parte Welborn, 785 S.W.2d 791
§Tex.Crim.App. 1990 L. The Court of Criminal Appeals laid out the instructions for writ
procedures in Ex parte Camr)os 613 S.W.2d 745, 746 (Tex.Crim.App. 1981). stating “the parties
must provide the opportunity to support or contest allegations amounting to ineffective assistance

of counsel.” Applicants request the trial Court schedule a hearing to address these claims

21

GROUND NINE - Applicant was Denied His Right to Due Process and Due Course of Law
When the Trial Court Abused Its Discretion and Denied His Motion to Suppress an Illegally
Obtained Blood Test with No Indica of Reliability, and That the Court of Appeals Erred When It
Overlooked the Trial Court’s Abuse of Discretion, Allowing the Blood Evidence and Lack of l,
Legal and Factual Sufficiency of a Grand Jury Subpoena.

MOTION TO SUPPRESS AND LACK OF LEGAL AND FACTUAL
SUFFICIENCY OF A GRAND l|URY SUBPOENA:

A. MOTION TO SUPRESS

The Court of Appeals erred in equating the use of deception in the tampering of a
document for conviction purposes in a trial Court in violation of Texas Penal Code 37.09 and
overlooked the Trial Courts abuse of discretion.

The Trial Court abused its discretion when it denied the motion to suppress a blood
serum test results because D.A. Fryer tampered with the M.M.H. blood serum test results and
presented it to Applicant and the Trial Court as evidence. D.A. Fryer knowingly intended it to be
taken as a genuine medical document in order to convict Applicant in a criminal Court of law.
This was a clear violation of Article 38.23 of the Texas Code of Criminal Procedure and thus the
evidence of the blood serum test should have been excluded.

D.A. Fryer violated section 37.09(a)(2) “Tampering with or fabricating physical
evidence,” and section 37.10§2)1a1“tampering with a governmental record” both of the Mas_
Penal Code. In the instant case the trial Court abused its discretion when it denied the motion to
suppress because prosecuting attorney Fryer admittedly tampered with the medical document of
the blood serum test results

The State introduced a blood serum test which had no “Indica of Reliability” standard,
and the state provided no witness testimony that would satisfy the standard. Because the state
provided no evidence to bolster the reliability and accuracy of the blood serum test, the Court
erred in overruling Desilets objection to the evidence allowing the medical report into the record.
Dr. Troung, the states expert witness testified that the blood serum tests results in front of him
were tampered with and he had no knowledge of who produced that test results Prosecuting

attorney Fryer admitted in open Court that he had changed the results of the blood serum test

22

before admitting it into evidence, defense asked at this time for the blood serum test to be
suppressed, however, request was denied by Judge Ernst.

B. ABUSE OF A GRAND JURY SUBPOENA.

Mr. Desilets contends that his Fourth Constitutional Amendment was violated when D.A.
Prewitt using a falsified Grand Jury investigation Order dated December 4, 2007, signed by
Judge Woods of the 284th District Court, when the accident did not occur until December 16,
2007, to obtain medical records in the treatment of Desilets, D.A. Prewitt then sent the
subpoenas to area hospitals on a fishing expedition to further a police investigation, in order to
indict, arrest, and convict Applicant in a criminal Court of law. (see Exhibit I. Grand Jurv order
of lnvestigation and Grand Jurv Subpoena 2/19/08 & 3/4/08 attached).

Mr. Desilets contends that at no time after the accident on 12/16/2007 was he in custody
by police, even during treatment at the hospital in which police were present, nor did he believe
he was under any restraint associated with an arrest. Guardiola V. Stati; 20 S.W.3d 216
(Tex.App. - Houston 14th Dist. 2000). In the past, the state has recognized four factors relevant
to determining custody: 1) Probable cause to arrest. 2) Subjective intent of the police. 3) Focus of
the investigation and 4) Subjective belief of the defendant.

It is obvious from the chain of events that police had no probable cause or interest in
arresting Desilets, police at the scene also knew that Desilets was not the driver of the vehicle,
and that the driver had fled due to eyewitness accounts it wasn’t until months later when police
could not locate the driver who had fled that they focused on Desilets. Otherwise police would
have obtained a warrant for a blood test on the evening of 12/16/2007 when they were with
Desilets at the hospital. Prosecutor’s power to subpoena must not be used as a tool for police
officers U.S.C. Const. Amend. 4 Vemon Ann. Tex. Const. Art. 1. §9.

C. USE OF A GRAND ,|URY SUBPOENA TO FURTI~IER A POLICE

INVESTIGATION.

Consequently Courts cannot allow the state to violate a person’s Constitutional Rights
just to satisfy its desire to investigate a crime. A Grand Jury Subpoena is one of the State’s most
powerful tools in this event the State abused and misused this power, thus resulting in an illegal
seizure and a breakdown of Desilets constitutional guarantees The state stepped outside the
scope of their authority in abusing the power of the Grand Jury Subpoena. Therefore, we must

find that the Court of Appeals decision is ungrounded in the law when the Court admittedly

23

made an assumption not supported by the record, and the obtaining of medical documents was
unlawful which resulted in an illegal arrest of Mr. Desilets. See Exhibit J, Subpoena to further a
police investigation.

This miscarriage and abuse of a Grand Jury Subpoena also prevented Desilets from
obtaining a second sample of blood to be tested independently.

D. LACK OF CHAIN OF CUSTODY AND ALTERED DOCUMENTS

Mr. Desilets contends when the state abused the Grand Jury Subpoena power to obtain
medical records they knew and acted intentionally intending all evidence collected would fall
under the business records hearsay exception. Thus allowing them to bring forth false evidence
with no “indica of reliability,” accuracy, chain of custody, or even proof that it was even Desilets
blood test, and that it is non-testimonial in nature.

Dr. Troung, treating physician after the accident, testified during trial that he had treated
Desilets when he arrived for severe injuries of his right side (passengers side), Dr. Troung stated
he did not perform the blood test, nor did he know who did, nor could he testify to the reliability
of the test taken, or even if it Was Desilets test at all. However, Dr. Troung did testify the
notation of results on the medical report before him containing Desilets blood serum test was not
his or his staff’ s, and left into question the accuracy of the results of the blood serum test.

This lead the Court to believe someone had tampered with the medical documents
containing the blood serum test and entered it into record before the Court. Prosecuting Attorney
Fryer then stood and stated before the Court that he had changed the results on the medical report
containing the blood serum test results stating “just to round it off your honor” before entering
the document into evidence. Defense again asked for a suppression of the evidence at that time,
however, request was denied by visiting Judge Ernst.

E. FRUITS OF A POISON TREE

Mr. Desilets concludes the state saw no probable cause to request a blood test at the
hospital during treatment even though police were present at the hospital on 12/16/07 for they
knew he wasn’t the driver but a passenger in the accident, further, he complains after officers
could not locate the driver, some months later they focused on him. D.A. Prewitt then to aid a
police investigation obtained treatment records with a falsified Grand Jury Subpoena, which in
itself was an unreasonable search and seizure under the Fourteenth Amend of the U.S. Const. and

Art. 1. § 9 of the Tex. Const. as well as Art. 1.06 of the Tex. Code of Crim. Proc. Desilets also

24

contends the search was unreasonable and the blood test results were fruit of a poison tree and
under the fruit of a poison tree doctrine, evidence derived directly or indirectly from illegal
government activity is excluded as trial evidence, especially without a search warrant.

Thus the Court of Appeals erred by not determining the test should have been suppressed
at trial. Wong V. U.S.. 371 U.S. 471. 484, 83 S.Ct. 407, 91 L.Ed.2d 441(1963). Crosbv V. State,
750 S.W.2d 768, 780 (Tex. Crim. App. 1987). Due to the seriousness and overall importance of
the violation of Desilets Constitutional Rights; Applicant should be granted relief from his

unconstitutional confinement as he so prays below.

GROUND TEN - Applicant was Denied His Right to Due Process and Due Course of Law and
Equal Protection of Law When the Trial Court Abused its Discretion by Allowing Blood
Evidence into Trial With No Chain of Custody and Denied Him an Expert Witness in Lieu of the
Confrontation clause.
A. NO CHAIN OF CUSTODY AND DENIAL OF AN EXPERT WITNESS
IN LIEU OF THE CONFRONTATION CLAUSE

Mr. Desilets was denied Due Process and Equal Protection of the Law when visiting
Judge Ernst from Walker County, Texas held Court in Montgomery County, Texas in the 359th
District Court, and failed to suppress Desilets medical records and illegally obtained blood
evidence without a chain of custody or a certificate of analysis and because material did not
contain facts found to be true as required by clearly established federal law and the Texas Code
of Crim. Proc. Ann. Art. § 38.42, Chain of custody affidavit, and §38.42 11)(3) 1-6 and g5) and
Art. § 38.43(a)§2)(B )gb)(c), Evidence containing biological material, Tx. Rules of Evid. Rule 803
(6)(7), Tx. Trans. Code § 724.017(a)(c).

The Texas Code of Criminal Procedures provides that Certificate of Analysis of Physical
Evidence and Chain of Custody affidavits are admissible without the declarant appearing in
Court if the documents are filed and served on the opponent more than twenty days before trial
begins .. these relevant statutes were enacted shortly before the U.S. Supreme Court’s opinion in
Crawford V. Washington, 541 U.S. 36, 124 S.Ct. 1354. 158 L.Ed.2d 177(2004). Mr. Desilets
addresses that this statutory procedure did not take place and that his Sixth Amendment of the
Confrontation Clause was denied. Tx. Rules of Evid. Rule 801(e).

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During the pre-trial hearing Judge Hamilton recused herself and sat visiting Judge Ernst,
who without a chain of custody affidavits and a certificate of analysis denied Mr. Desilets
request to suppress blood evidence, and obtain an expert witness to aid in his defense. This
placed an unreasonable burden on Desilets ability to exercise his rights under the confrontation
clause and to obtain an expert witness to challenge the States evidence against him.

The Supreme Court has held in Ake V. Oklahoma that the Due Process requires that a
defendant be given access to the raw materials integral to the building of an effective defense.
Ake V. Oklahoma, 470 U.S. 68, 76-77, 105 S.Ct. 1087. 1092 84 L.Ed.2d 53 (1985), this access
includes the appointment of experts Therefore, the trial Court abused its discretion and showed
great prejudice by denying Mr. Desilets the necessary expert witness to review the States
evidence.

The Supreme Court has also held in Pointer V. Texas that the bedrock procedural
guarantee applies to both Federal and State prosecutions and that the unavailable witnesses out-
of-Court statements may be admitted so long as it has adequate indica of reliability and falls
within a firmly rooted hearsay exception and bears particularized guarantees to trustworthiness
Pointer V. Texas 380 U.S. 400, 406 85 S.Ct. 1065. 13 L.Ed.2d 923(1965). However in Desilets
case it clearly holds none of the above and the witness against him was kept from cross
examination and from trial all together in violation of his Sixth Amendment Right to
Confrontation, and calls into question the ultimate integrity of the fact finding process U.S.C.A.
Const. Amed..VI.

B. DENIAL OF EXPERT WITNESS AND COMPULSORY PROCESS

Article I Sec. 10 of the Texas Constitution provides that criminal defendants have a right
to Compulsory Process for obtaining witnesses Tex. Const. Art. 1 § 10. Further, the Texas Court
of Criminal Appeals has recognized that “the right of an accused to have compulsory process for
obtaining witnesses on his behalf as guaranteed by the Sixth Amend. is so fundamental and
essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth
Amendment and is applicable to State trials” Brito V. State, 459 S.W.2d 834, 837-38
(Tex.Crim.App. 1970)( citing Washington V. Texas 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d
1019 (1967)). `

In the above cause it is not hard to determine from well established Supreme Court Law

that visiting trial Court Judge Ernst did in fact abuse his discretion by denying Mr. Desilets an

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expert witness to build his defense and challenge the States evidence. Along with depriving him
relevant testimony of material witnesses that would have provided evidence in support of his
actual innocence and that the results would have been different based on factual scientific
evidence and testimony.

lt is obvious visiting Judge Ernst failed to recognize what his position was as the
gatekeeper of science and expert witness of science, and that his unrecognized gate keeping role
as a Judge prevented the jury from learning authentic insights and facts in the case by not
implementing the general acceptance test instead of just denying Mr. Desilets an expert witness

The Supreme Court of the United States has held in Daubert V. Merrell Dow Pharm. Inc.,
that the District Court should act as a reliability gatekeeper in which it imposes a special
obligation upon a trial Judge that scientific testimony is not only relevant, but reliable. Daubert
V. Merrell Dow Pharin. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Judge Ernst did

not even hold a gate keeping hearing, known in Texas as a Daubert Kelly Hearing, to determine
the scientific reliability and validity of the scientific methodology or even allow Mr. Desilets an
expert witness who was to testify on his behalf for the defense of his actual innocence.
Hemandez V. State, 116, S.W.3d 26, 29-30 gTex.Crim.App. 2008).

Due to the seriousness and the overall importance of these issues and the violations of
Desilets Constitutional Rights Desilets requests that this Honorable Court schedule a hearing to
address these claims Accordingly, Applicant should be granted relief from his unconstitutional

confinement as he so prays below.

GROUND ELEVEN - Applicant was Denied His Right to Due Process and Due Course of Law
and Equal Protection of Law when the Trial Court Abused its Discretion by Allowing
Insufficient Notice of Intent to Seek Affirmative Finding of a Deadly Weapon and Denial of an
Expert Witness and that the Court of Appeals Erred when it Overlooked the Trial Court’s Abuse
of Discretion, Allowing the Insufficient Notice of a Deadly Weapon and Denial of an Expert

Witness

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INSUFFICIENT N()TICE OF INTENT TO SEEK AFFIRMATIVE FINDING
OF A DEADLY WEAPON AND DENIAL OF AN EXPERT WITM

A. DISCOVERY ORDER

Mr. Desilets contends that the Court of Appeals abused its discretion by overlooking a
standard order which was in place and required ten days notice before trial to file all motions or l
amend motions Thus violating Desilets Constitutional Right to Due Process This discovery
order is contained in the clerk’s record dated 5/1/2009, which the_ State filed a response to before
trial, and again on 5/12/2009, where the State filed a supplemental response to the discovery
order. This in fact is the same discovery order which was not contained in the record forwarded
to the Court of Appeals and the State disputes whether such a discovery order was entered or
even existed. See Exhibit K, clerk’s record containing discovery order.

B. CONSTITUTIONAL RIGHT TO DUE PROCESS

Mr. Desilets Constitutional Right to due process was violated when the State failed to
make a timely notice that it would seek an affirmative finding that a deadly weapon was used
during the commission of the offense charged against him.

The Court of Criminal Appeals has recognized Article I Sec. 19 of the Texas

Constitution which affords the defendant the right to notice that the State will seek a finding that
during the offense the defendant used or exhibited a deadly weapon. Brooks V. State 847
S.W.2d 247, 248 (Tex.Crim.App. 1993). The defendant’s right to such notice is firmly rooted in

fundamental precepts of due process and due course of law.

Mr. Desilets asserts he was denied his Constitutional Due Process Right to meaningful
notice and a meaningful time to be heard. Lachance V. Erickson, 522 U.S. 262. 266, 118 S.Ct.
753, 756. 139 L.Ed.2d 695, 700 (1989); Ex parte Geiken. 28 S.W.3d 553, 560 (Tex.Crim.App.
M. Also the notice of a deadly weapon intent Was inadequate to amend the indictment and the
notice was not provided within the statutory time before trial with a standing discovery order in
place, Mr. Desilets was further prejudiced when he was denied a continuance in order to seek
expert testimony on issues including the deadly weapon amendment

Even the Court of Appeals Justice Horton himself acknowledges that the “Indictment is
considered somewhat ambiguous about whether the victims injuries were caused by Desilets use
of a motor vehicle.” Justice Horton also recognizes “notice given eleven days prior to trial has

been found sufficient.” Applicant asserts if the allegation of use of a deadly weapon was clear

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from the face of the indictment, there would have been no need for the State’s amendment The
indictment in this case did not provide adequate notice that the State would seek an affirmative
finding that Applicant used or exhibited a deadly weapon in the commission of the offense at
issue. Furthermore, the indictment did not allege that death or serious bodily injuries were
caused by a weapon. Because of the construction of the indictment, Applicant was not on notice
that the State would seek a deadly weapon finding.

Realizing its error, the State finally provided notice of intent to seek an affirmative
deadly weapon finding by correspondence in its amended motion pursuant to TRE 404/609 and
Art. 37.07. However, Applicant received said notice only seven days prior to trial. There was no
mention to Applicant of the State’s intent to seek the deadly weapon finding before this receipt
of the amended motion. Applicant’s trial counsel objected to the inclusion of the deadly weapon
finding in the jury charge, noting his inability to mount a defense by securing the testimony of an
expert due to the late notice provided by the State. ln addition, Applicant noted the existence of
a standing discovery order and the lack of notice on the deadly weapon issue therein. Applicant,
accordingly requested a continuance, or altematively, that the Court refuse the instruction on the
deadly weapon finding. The Court denied Applicant’s motion.

The Couit’s denial of Applicant’s request for a continuance prevented a proper cure to
State’s late notice on the deadly weapon issue. Because of the State’s failure to provide
Applicant with adequate notice, he was unable to prepare his defense in violation of his
constitutional right to due process under the Texas Constitution.

C. STANDARD TEN DAY NOTICE

Several Court’s in Texas have held reasonable notice of a general nature of evidence,
other crimes wrongs or acts that prosecution intends to introduce at trial is at least ten days prior
to the start of trial unless defendant or government shows reason to deviate from the presumptive
rule. Fed. Rule of Evid. 404, 404(b), 28 U.S.C.A. and as adopted by the State in 404§b)§2) Texas
Rules of Evid. Which contends notice requirements includes a notice provision for criminal
cases...Hemandez V. State, 176 S.W.3d 821, 825-26 (Tex.Crim.App. 2005). However, if a
discovery order makes clear the evidence to be procured, the State’s failure to comply will
permit a finding of willful failure and lead to the exclusion of the evidence. Oprean V. State, 201
S.W.3d 724 (Tex.Crim.ApD. 2006).

29

Both Federal and State Court’s have long held that ten days notice is considered
sufficient in a number of instances Appointment of counsel is allowed ten days to prepare.
Texas Code of Crim. Proc. Ann. Art. 1.051(e)(vernons supp. 200@; upon request a defendant is
given ten days to respond to an indictment or information, Texas Code Crim. Proc. Ann. Art.
28.10§a)gVemon 19891, notice is presumptively reasonable if given at least ten days before trial.
Chimnev V. State, 6 S.W.3d 694 (Tex.Ar)p. - Waco 1999). Code Crim. Proc. R. 28.01.

At the time it was obvious to the trial Court that defense was actually surprised When the
State acted with specific intent to willfully disobey the discovery order, then in final
circumstances the prosecution objected to defense request and trial Judge’s consideration to
grant a continuance to prepare and obtain an expert witness this objection in fact showed the
prosecutor’s full intent.

Due to the seriousness and the overall importance of these issues and the violation of
Desilets Constitutional Rights Desilets requests that this Honorable Court schedule a hearing to
address these claims and after these hearings, Accordingly, Applicant should be granted relief

from his unconstitutional confinement as he so prays below.

GROUND TWELVE - Applicant’s Right to Due Course of Law, Due Process and Equal
Protection of Law were Violated when the Court Abused Its Discretion and Denied Him a Fair
and Impartial Trial. Specifically, Applicant Complains that the Court of Appeals Erred and
Overlooked the Trial Court’s Abuse of Discretion Denying His Sixth Amendment Right to

Confrontation.
SIXTH AMENDMENT RIGHT T() CONFRONTATION

A. THE RIGHT TO CONFRONT WITNESSES AND LACK OF TRUSTWORTHINESS
OF I-IEARSAY EVIDENCE OF BLOOD TEST.

The admission of the report containing an alcohol test violated Desilets Sixth
Amendment Right to Confrontation, the Court’s admission into evidence a medical report
containing a blood serum test violated Applicant’s right to confront any witnesses against him.

In this ground, Applicant argues the Court of Appeals erred when they failed to recognize

a violation of his Sixth Amend. Right to Confrontation of any witnesses against him. Thus

30

calling into question the ultimate integrity of the fact finding process Ohio V. Robert, 448 U.S.
56, 64 S.Ct. 2538. 65 L.Ed.2d 587 (1980). '

The Court of Criminal Appeals has provided that the constitutional right to confront can
prevent admissibility even where a hearsay exception is applicable. Applicant argues that the
trial Court erred by denying his motion to suppress a blood test taken at the hospital after the
accident, he also contends the State violated his Sixth Amendment to confrontation because he
was denied the opportunity to cross examine the person who actually took the specimen. State
provided no evidence to bolster the reliability of the test and withheld exculpatory evidence from
the Court which stated the test was flawed and not to be used for anything other than medical
purposes. See Exhibit M, forensic report attached.

The Court of Appeals in its opinion cites Sullivan V. State, 248 S.W.3d 746, 750 (Tex -
Houston IS‘. Dist. 2008) stating “numerous Texas Courts have held that reports and business
records are indeed non-testimonial in nature.” However, Applicant makes reference to all Texas
Courts have held in Rule 902( 101 “unless the source of information, or the method or
circumstances of preparation indicate a lack of trustworthiness” Id. Sullivan at 751. Applicant
further argues his right to confrontation was violated when the trial Court permitted Dr. Truong
to testify about his review of the medical records which were made by someone other than
himself Dr. Truong, the State’s expert witness stated at trial that he did not know who took the
blood test, who performed the testing or who changed the test results prepared by medical staff.

Applicant was denied the right to confront or cross examine the person who put forth the
test and who actually took the blood specimen. He also contends the person who withdrew the
blood was not qualified to do so, and was not a qualified technician under the law. Texas Trans.
Code Ann §724.017(3)(vem0n supp. 2009). '

State must prove who took the blood test and whether it was a qualified person under
state law. Pham V. Stats 175 S.W.3d 767 (Tex. Crim. 2005). This clearly shows evidence was
obtained in violation of Texas Code of Crim. Proc. Art. § 38.23. Further, Court of Criminal
Appeals reversed, holding, in reliance on Ohio V. State, 448, U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597 that although| 801§d)(2)(e)| had been satisfied, the confrontation clause established

an independent requirement that the government as a condition to admission of any out-of-Court
statements must show the declarant’s unavailability. Which simply reaffirmed a longstanding

rule that applies unavailability analysis to the prior testimony of a witness not produced at trial,

31

cannot fairly be read to stand for the proposition that no out-of-Court statement can be
introduced by the prosecution without showing the declarant is unavailable.

The United States Supreme court held that the “indica of reliability” standard must be
applied even to well-accepted exceptions to the hearsay rule of exclusion. Califomia V. Green

399 U.S. 149, 90 S.Ct. 1930. 26 L.Ed.2d 489 (1970). The Court requires this test be met because

the inability to cross-examine a witness and therefore to inquire as to their truthfulness and
accuracy, is “so important that the absence of proper confrontation at trial ‘calls into question the
ultimate’ integrity of the fact process.” Ohio V. Roberts 448 U.S. 56, 64 S.Ct. 2538, 65 L.Ed.2d
597 (1980).

The Court of Criminal Appeals has provided that the constitutional right to confrontation
can prevent admissibility even where a hearsay exception is applicable. Long, 742 S.W. 2d at
M. To uphold that constitutional protection, the Court held that every case where an approved
exception to the hearsay rule is at issue must be dealt with on the specific fact of that trial. Id.
The court applied the United States Supreme Courts “indica of reliability” standard specifically
regarding the business records exception in stating that “[i]t must be determined in each instance
whether the particular record is of such trustworthiness as to guarantee the same protection
provided by the constitutional rights of confrontation and cross-examination.” Porter V. State l
578 S.W.2d 742. 747 (Tex.Crim.ADD. 1979)

Applicant’s Sixth Amendment Right to Confrontation was violated by the Courts refusal

to suppress the serum test. The State provided no witness testimony that would satisfy the
“indica of reliability” standard. Instead, the States only testimony relating to the test came from
a doctor who testified that he did not perform the test and did not make the notation on the
medical report purporting to indicate Applicant’s blood alcohol level.

Because the State provided no evidence to bolster the reliability and accuracy of the
blood serum test, the Court erred in overruling Applicant’s objections to the evidence and
allowing the medical report into record.

B. PREPARATION OF RECORDS FOR LITIGATION

All medical staff in the State of Texas are trained to prepare documents for legal
litigation within the Courts on a daily basis in the course of their duties and all are aware of
which State and governmental agencies will require them, as well as the documents they will

receive to release such records therefore, such records should not be qualified as a business

32

record for they are prepared daily with the anticipation of legal litigation in a Court of law. _VV_illi_s_
V. State, 897 S.W.3d 397. 401 (Tex.Ar)p. - Austin 1999). Inadmissible for lack of
trustworthiness since documents were prepared in lieu of future litigation. Philpot V. State, 897
S.W.2d 848. 851-52 (Tex.Ai)p. - Dallas 1995).

The United States Supreme Court has rejected the contention that public or business
records are categorically non-testimonial. Documents kept in the regular course of business may

ordinarily be admitted at trial, despite their hearsay status But that is not the case if the regularly

conducted business activity is the production of evidence for use at trial. Melendez V. Diaz 174
L.Ed.2d at 328. Applicant argues that knowingly Memorial Hermann Woodlands prepares all
documents of daily activities in preparation of their regularly conducted business will be
evidence used at trial at any given time, Confrontation is one of the means of assuring accurate
forensic analysis and is designed to weed out not only fraudulent analysis but the incompetent
one as well. Applicant was denied this violating his constitutional right to confrontation.

Therefore, Trial Court abused its discretion by admitting the business records under the
hearsay act with no indica of reliability, and the Court of Appeals erred by overlooking the trial
Courts abuse of discretion denying his constitutional rights to confrontation.

Due to the seriousness and the overall importance of these issues and the violation of
Desilets Constitutional Rights Desilets requests that this Honorable Court schedule a hearing to
address these claims and after the hearings, accordingly, Applicant should be granted relief from

his unconstitutional confinement as he so prays below.

GROUND THIRTEEN - Applicant’s Right to Due Course of Law, Due Process and Equal
Protection of Law were Violated when the Trial Court Abused its Discretion and Denied Him a
Fair and Impartial Trial. Specifically, Applicant Complains that the Court of Appeals Erred and
Overlooked the Trial Courts Discretion of Lack of Jurisdiction of the Offense and J udicial

Misconduct.

A. TRIAL ,|UDGES RECUSAL WITHOUT NOTICE

Trial Court erred when the Courts elected sitting Judge recused herself without notice and
sat a visiting Judge from outside the County without a written order or written assignment
According to the Texas Local Govt. Code § 87.001 (Vemon 1989) Judge Hamilton elected Judge
of the 359th District Court of Montgomery County, recused herself inappropriately without

33

proper due process under the Texas Civil Proc. § 18(a). seven days before trial at the pre-trial
hearing without notice or explanation Texas Rules of Civil Proc. Rule 18(a) states ten days
notice before the date set for trial or other hearings in any Court and Rule 18( al states prior to
any further proceedings in the case. . ..

If the Judge recuses himself, he shall enter an order of recusal and request the presiding
Judge of the administrative judicial district to assign another Judge to sit and shall make no
further orders and shall take no further action in the case. . .Rule 181b 212 ).

B. VISITING ,[UDGE’S LACK OF ,|URISDICTION

In this point of error Applicant claims he Was deprived of his right to object under
V.T.C.A. Govt. Code § 74.053 to visiting Judge who would be sitting the day of the pre-trial
hearing. Applicant did not know the identity of the visiting Judge due to the fact there was no
notice of assignment or condition of assignment Republic V. State 60 S.W.3d 877
§Tex.Crim.App. 20011, and in accordance with Texas Govt. Code Ann. § 74.053 (Vernon Supp.
199_0).

Applicant further contends with no constitutional or statutory provisions in addition to
administrative assignment for Judge Ernst to preside in the 359th Court, Judge Ernst lacked
authority to act in such Court and preside over the case. Herrod V. State, 650 S.W.2d 814
§Tex.Crim.App. 1983 ). Applicant’s due process was denied when the Trial Court was conducted
by a visiting Judge not assigned in accordance with Texas Govt. Code Ann. § 74.'and Texas 7 3
Govt. Code Ann. §§ 74.091. 74.092. Thus, Judge Ernst was Without authority to hear the case
and was not properly appointed to the 359th District Court of Montgomery County.

C. UNPROFESSIONAL CONDUCT, LACK OF l|UDICIAL PROCEDURE AND

PROSECUTORIAL VINI)ICTIVENESS

Applicant was denied Due Process and alleges he could not receive a fair and impartial
trial due to the fact that his defense attorney Choate engaged in a physical confrontation (a fist
fight) in the Court during litigation with D.A. Fryer. Court officers had to break up the fight and
separate the two men. Applicant complains that visiting Judge Ernst did absolutely nothing to
keep order in the Court, and would not let Applicant ask for a mistrial, explaining to both
counselors “I do love you both and we have to proceed with this trial, so let’s go,” Applicant was

denied his right to object and request a mistrial.

34

Although a prosecutor Should prosecute with earnestness and vigor, he may not use
improper methods calculated to produce a wrongful conviction. E.G. Flahartv, 295 F.3d 182, 202
§2“d Cir. 20021. (Court considered whether prosecutor’s remarks were improper and whether
remarks infected trial with unfairness violating defendant’s due process rights). Marshall V.
Hendricks 307 F.3d 36, 63-64 (3rd Cir. 2002); U.S. V. Williams 343 F.3d 423, 437 (5th Cir.
2003); U.S. V. Higgs. 353 F.3d 281, 330 (4th Cir. 2003): U.S. V. Beverlv, 369 F.3d 516. 543 (6th
Cir. 2004). 4

Applicant asserts that visiting Judge Ernst did nothing and should have declared a
mistrial, therefore, Applicant was prejudiced by both D.A. Fryer and the Judge himself, for the
failure to supervise or to under supervise the Court staff, which constitutes judicial misconduct.
Texas Code of J udicial Conduct Cannon 3(c), which expressiver provides that in a Judge’s
discharge of his or her administrative responsibilities a Judge should require staff, Court officials
and others subject to the Judge’s direction and control to observe standards of fidelity and
diligence and professional conduct that apply to Judges . .Texas Code of J udicial Conduct
Cannon 3gc)§2).

A Judge is to exercise reasonable direction and control over the conduct of those persons
subject to the Judge’s direction and control. Id. Cannon 8§b)g11). The failure of the Judge to act
on behalf

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4067609. Public record. Not legal advice.