Islas, Brandon AKA Islas, Brandon Cary

gm 333'@»

Cause No. F-ZOlO-1896-D WHC-l

ry RECE|VED |N

` COURT OF CR|M|NAL APPEALS

E:X PARTE § IN THE DISTRICT coURT

§ NOV 3 0 2015

§ 362nd JUDICIAL DISTRICT

. §

BRANDON IsLAS § DENTON coUNTY, TEXAS

APPLICANT's REPLY To Sl'ATE's ANswER, Ab€lACCSfa. Ci€|'k

OBJECI'ION 'IO PROPOSED FAIDINGS AND CONCLUSI('X‘B'

AND SUPPLEMEN'RL MEDKFRANDUH OF LAW

This Reply is submitted pro se in response to the State's Answer (SHA)

and proposed findings and conclusions, received by me from the prison mailroom

on October 27, 2015. The State's Answer was postmarked on October 23, 2015,

presented in the Certificate of Service.

My Motion for Appointment of Counsel was submitted, via placement in

the prison mail system, on October 26, 2015, and file-stamped on October

29, 2015. That motion is made pursuant to TEX. CODE CRIM. PROC., art. ll.074

and is currently pending.

This Reply is dated and submitted, via the prison indigent mail systeml

on November _éL§_! 2015.

I. OBJECTION TO PROPOSED FINDINGS AND CONCLUSIONS

I generally object to the State's proposed findings and conclusions

as being made without adequate fact-finding by the habeas court. Further,

I specifically object to the failure to provide my former trial counsel and

l appellate counsel the opportunity to respond to my allegations of ineffective

assistance. Any such failure should require a remand to the habeas court

for further review. Ex parte Leos, (Crim. Ppp. 2006) WL 786873 (Lhrptd); Ex parte 'l‘atro,

(Crim. Dpp. 2006)(WL 826 7]l)(reremd required whm oomsel not aff<r<bd opportunity to respord

to claim of ineffectiveness). I request that the necessary order be issued to

require further adequate review of my habeas claims. I request that the

former attorneys be ordered to submit affidavits, addressing my claims and

that they provide me completecopfesof all submissions wade by them for thisv

review.

fl'

‘Islas Reply l F-2010-1896-D V\HC 1 Page 2

£F' II. REPLY AND SUPPLEMENTAL MEMORANDUM

GROUND l JURISDICTION

Inexplicably, the State attempts to characterize this issue as a challenge

to the indictment. SHA, p. 3. This mischaracterization is not credible. In

no way do 1l attempt to assert or argue that the indictment wa"s _defective. _

Hab. A;p., p. 6; Pppts. Mem., pp. 3-5. The State's argument of a defective indictment

should not be considered due to it's irrelevance.

DEFECTIVE STIPULATION

The State asserts that the question of finality that I did raise in

this claim can be disposed of by the stipulations I made`on the advice of

trial counsel. S-]A, pp. 4-5. My claim is that the State presented a 1993 DWI

conviction as a final conviction to satisfy the required jurisdictional element

to allow a felony prosecution, but raised a question of finality due to the

submission of an unsigned, undated judgment that is not proof of anything.

S:. Hab. F_!xh. (SHX 1). The State asserts that any complaint, now about jurisdiction,

is irrelevant due to my trial stipulations made on the deficient assistance

of trial counsel. SHA, p. 5; SJXH (SX 40), item 3. Had my trial counsel properly

advised me on this issue, I would not have made any stipulation regarding

the finality of the convictions. But for his ineffective ,assistance, I would

not have stipulated to'l the finality of the 1993 conviction. SeeGromd 3 herein.

Prior final convictions are essential jurisdictional elements of a felony

DWI offense. Ren. Oode §49.09(b); CCP!a`rt. 4605§'3:ate v. M=.'wbourn, 993 S.W.?d 771, 772

('nex. ppg - iyler 1999); Barfield v. scate, 99 sw.zd 23, 24 N.l" (iex.ppg - Pbuscm [14th Disc.]

1999); nollen v. state, 117 s.w.3d 798, 801 (iex. crim ppg 2003); mdyenlv. State, 436 s.w.3d

399, 401 ('Iex. App. - Ft. Worth 2014); D't£innis v. State, 746 S.W.2d 479 _(Tex. Crim App. 1988).

1 The State has the burden to prove the finality of the prior convictions alleged.

nar-rison v. state, 950 s.w.;\d 419, 421 ('Iex. ppg - Foustcn [1st n'LSt.] 1997)(31;1¢:11311 tm prior

l

oomictions are admitted to by defendant, birden remains 'm State to prove firla`lity, citirg

` isles Repiy l F-2Q10»1896-D mc 1 Page 3

Spiers v. State, 552 S.W.Zi 8‘5L 852 ('lex. Crim. Agp. 1977). Affirmative evidence of non-

finality is an exception to the validity of a stipulation of finality. Harriso'l,

id at 422. The State may create a question as to finality by introduction

of a defective document purporting to represent the finality of a prior con-

viction, yet actually defeats the prima facie case of finality. I\’bGinnis, 746

S.W.Zd at 4827 Fletdler, 214 S.W.3d at 6-8 and N. 7. A defendant has no burden:-' to

raise the issue for later review. F`letcha', id at 8. A stipulation does not

relieve the requirement of finality-for a prior conviction to be used to

satisfy a jurisdictional element. Rcbles v. State, 85 S.W.3d 211, 216 ('Dac. O:im. ppp.

ZIX)). It has never been held that a defendant can make legal,"by agreementi

something that is not authorized by law. E‘x parte Sirrs,7 868 S.W.2d &JB, 801 ('Iex.

Cn'm. ppg 1993).

A criminal sentence imposed by a court lacking jurisdiction would not

be authorized by law and therefore illegal. Jurisdictional matters may not

be waived.and may be raised on direct appeal or by habeas challenge. Necbom»

993 S.W.Zd at 773 -'; Ex parte Rich, 194 S.W.3d 5CB, 511 and 513 (’Iex. Crim. App_.. 2(1)6). A

claim of illegal sentence is cognizable on a habeas application even if an

applicant has pled true to enhancement paragraphs. Eb< parte Rich, id at 510 (Pbldirgs).

In this case, the State made a prima facie case of jurisdiction by pleading

two,qualifying convictions in the indictment. SLA E`xh. A. The State then

destroyed that showing by introducing a certified copy of the unsigned, undated

Judgment of `Probation, which was affirmative evidence of non-finality of

the 1993 DWI conviction. SJAExh. I (S]X l). The only other evidence introduced

by the State,- as to the finality of that conviction, was the written stipulations

my trial attorney advised me to sign. SHA E><h. H (S;X 40) No other supporting

evidence was introduced _at trial regarding the prior convictions.

The State has offered the decision in Old Chief v. U.S., 519 U.S. 172 (1997)

as one of several controlling precedents, however Old Chief is not binding

, mae Reply ' . F-2®1018%D mc 1 tage. 4

as to~proof of finality of convictions pled to satisfy a jurisdictional element.

W, ll S.W.3d at 2CD. At least one court of appeals has declined to apply

Old Chief to Pen. Code §49.09(b). Idat 200.

Proof of a prior final conviction must be established for that conviction

to be used to enhance or elevate an offense. anry v. State, 331 S.W.3d 552, 555

('Iex. Ppp. - EbIBtm [l4th Dist] 2011, nopet.). The burdenf of proof of finality

is that of reasonable doubt. 11 A failure by the State to meet that burden

bars the conviction from use to elevate the offense. 31 A stipulation to

a prior conviction affirmatively links a defendant to a convictionwbuttdoes

not necessarily satisfy the burden of proof for finality. LDS, 85 S.W.3d at

2167 _I‘En__ry, 351 S.W.3d at 555; Flowers v. State,' 220 S.W.3d 919, 921-22 ('lex. Crim. App. 2007).,

A stipulation is,a form of evidence that supports the conviction and precludes

further presentation of evidence to a j§£y, however in this case, my stipulation

is contradicted by the certified copy.of a defective judgment filed contemporv `

aneously with the 1993 court proceedings. The State's submission of that

document creats reasonable doubt as to finality of the 1993 conviction, which

is more probative than my stipulations made thirteen years later. E§E§!ll

SJl3daK.XR kiipiadrnssu§ioawhaiUry<zmrythesameeddattzy\@hxaasije jdgmmts

of};icr oxmdctd:s).

If the burden of proof as to finality of the 1993 DWI conviction has

not been met, and because the record reflects that no additional qualifying

convictions were pled as jurisdictional elements, and no other extrinsic

evidence was submitted to support the finality of the 1993 conviction, then

all that is left is the predicates to obtain a misdemeanor conviction pursuant

to Pen. Code §49.09(a), over which the convicting court would have no juris-

diction, and for which the currently imposed sentence would be excessive

as not authorized by law.

. lsias reply Hoic>ie%-D mc 1 page "5

RELIEF

The appropraite,relief would be to vacate this conviction, as I have

served a prison term that exceeds any term allowed for a misdemeanor offense.

Fletdier v. State, 214 S.W.3d at 9.

II. ADMISSION.OF BLOOD SAMPLE OONTRARY TO A NEW RULE OF LAW

During the pendancy of my appeal the U.S. Supreme Court established

a new rule of criminal procedural law, rendering Trans. Code Sec. 724.012(b)

unconstitutional as applied to the facts and circumstances of my conviction.

App. pp. 8~9; I>pp. Man. gm 6-10; P/tissouri v. M:Neely, __133 S.Ct. 1552 (2013)(decisicn date 4/17/13)

(oollecticn of evi<brrtiary blood specimmt wittout a warrant violates F‘ourth Arerdnent absent

exigerm circlirstames).; State v. Fine, 330 s.w.3d 904, 910 ('iex. Criin. ppg 2011.). Had the

decision in Wbeen applied to my case, on appeal, my conviction would

have been reversed. TEX. R'.. APP. H?OC. ('IRAP) 44.2(a); Srrtith v. State, S.W.3d 2014

'Iex. A;p. LEXIS 12372 .(11/13/14, pet. review grated 2/11/15).

FACTUAL HISTORY

The evidentiary blood.speciment was collected without my consent and ~.'l'i`

without a warrant, based solely on the repeat offender provision of Trans.

Code Sec. 724.012(b)(3)(B), and occurred while I was in custody. FR7: p. 107

` (plaoed wider arrest), p. 108 and 122. (-refused breath test and blood test); SI'X 35 (oollectio'l

order form 'IPF 51)

The prosecutor elicited false testimony from a police officer, misleading

the jury into believing the specimeni collection was made pursuant to a warrant

or authorization of a judge. RR7: pp. 108-1097 SI‘X 35.

The blood evidence was used extensively at trial and provided scientific

proof of intoxication beyond a reasonable doubt. SI'X 39 (blood analysis repCrt);

mm pg 13-159 (entire pestva of rigid sample armySiS); W, __ S.w.ad __ (g

17 - report erases reasonable dmbt' by presenting scientific evidence of legally defined intoxicaticn)..

Trial counsel failed to correct the false testimony elicited by the

1

_ Islas reply F-z)10-1896-D wm 1 Page 6

prosecutor described above.

ARGUMENT

The State argues that this claim is one of sufficiency of evidence,

therefore it is not a habeas issue. SiI-\, p. 6-7. rI'his is another mischaracter-

ization of a claim in my application, and the only argument presented by

the State. In facti this issue raises a claim of a violation of the U.S.

Const. Amend. IV; Tex. Const. art. l, §9; CCP art. 38.23'(a); Srtith v.State,

2014 'Iex. App. LEX[S 12372, Mam. Cp. p. 5 and N. 6. (oollecticn of evidentiary blood sample

implicates Folrth Arre'xine'it).

This issue was not decided on appeal and the issue of admissability

based on the potential ~of police misconduct is not presented herein as a

habeas claim.

The issue of ineffective assistance of appellate counsel is presented

in Ground 4 herein as well as the original application and memorandum. Hab.

App., pp. 8-9; Ppp. Nen.,, 6-10.

-RETROACTIVE APPLICATION OF MCNEELY

The State claims that it was "unclear" whether or not McNeely could

have been applied in the appeal"_court's consideration of my case. SiA, p. 15.

-I do not agree. seeA;p. l`/Hn.,7 p. 6': C¥oir'd4he:ein, iten2.

McNeely was decided on April 17, 2013, duirng the pendancy of my appeal

and the appeal in Smith v. State. >Srrith v. State, No. l3-ll-694F(R, 2013 WL 5970400 ('It=_>x.7

l>pp. - Cbrpus G'u:isti 10/13/13, m pet.)(Men. Op. not p.b'd), withdraw and replaced by §_rl£h_

v. State, 2014 'Iex. Ppp. LEX[S 12372, decided 11/13/14 (omvictim reversed, case renarriled).

The reversal of the conviction in M was entirely the result of the application

of the Uly decision retroactively.

My appeal was filed in April, 2012, and the decision was rendered on

May 14, 2014. During‘that time period __D/ki_\l_ee£ was decided, and §r_t_i_thwas decided

and then reconsidered, and the State's PDR granted on February 11, 2015.

Islas Reply F-2010-1896-D V\HJ l Pag@ 7

Also, another appellate court decided that _N_bl\hel:__y_ applies retroactively as

noted in the State's habeas answer. SHA, p. 15: State v. Esher, 3315 'lex. Agp. LEX[S

772 ('Iex.` App. - Dallas 7/2'7/15, no pet.)(lvsn. Cp. mpub‘d).

As presented in Ground 4 herein and in my initial habeas submissions,

I was entitled to the application of the __p_l‘/H\le__e_l_y_decision to my conviction

for consideration on appeal. At least two other appeal courts retroactively

applied_Uly to cases on appeal. The State's assertion that it was "unclear"

whether _l`/ti__\lee_ly could be applied retroactively to cases on appeal is not supported

by the greater weight of precedent and the conduct of other Texas appeal

courts. See §rl;'_t_h_, 2014 'Iex. App. LEXIS 12372 (Cp. p. 15)(relevant <Hcisims of 'Iexas appeal

courts applirg lvbNeely).

ANAL'YSIS OF MCNEELY APPLICATION

Without a demonstration of exigent circumstances or express consenti

a warrant was required toi`obtain the evidentiary blood sample used in my case.

l M, id at 16. Because the blood sample was * obtaii'-_nede'.;without a warrant or

valid exception to obtaining a warrant, 'D:ars. G:Jde §724.012(b) was unconstitutionally

applied and the blood evidence should be held to be inadmissable. L`t_h, id at 16.

Due to the extensive use of the blood evidence at trial previously described,

as well as the scientific proof of intoxication that erases reasonable doubt,

it cannot be said, beyond'a reasonable doubt, that the blood evidence did not

l contribute to my conviction, which should result in a reversal of this conviction.

U, id at 17;' Hemardez v. state, 60 s.w.3d 106, 108 (ieg crim. ppg 2001); iex. R. ppg_.

Proc. 44.2(a).

Just as in W, other circumstantial evidence of intoxication was presented

by the State. SHA; p. 16; oqrparewith §__m`_th_, p. l7. Just as in§l@`t_l'_l, the test

result, on the blood sample, exceeded the value the legislature set to define

intoxication.'fSIX 39 - Feport of ll\nalysis.l Just as in _S_m'_th_, the blood sample .'

analysis eliminated any reasonable doubt of intoxication based on the other

, Islas Pepiy- F-2010-1896-D mac 1 rage 8

circumstantial evidence presented to the jury. Finally, just as in Smth,

this conviction should be.reversed.

III. TRIAL COUNSEL_RENDERED INEFFECTTVE ASSISTANCE

RIGHT TO COUNSEL

As the accused, I had the right to effective_assistance of counsel.

u.s. thst. Merd. VI; 'lex. clnst. art. l, sec. lO: Garcia v. State, 57 S.W.3d 436, 440 ('l\ex.

crim ppg 2001, cert aen'a); U.e v. crmic, 104 scr. 2039, maria 1\1 10 (1984); W

v. Soott, 60 F.3d 1167, 1170 (5th Cir.. 1995).

STANDARD OF REVIEW

A claim of ineffective assistance is reviewed by the two-prong Szickk¥d

test, demonstrating 1) deficient attorney conduct and, 2) that the conduct

deprived the defendant offa fair trial and reliable result. Bcpmteheerm

785 s.w.aa 391, 393 (Tex. crim p@. '1990); ihcxrpsonv. s;ate, 9 s.w.3d 808, 812 (Tex. crim

A[:p._ 1999); lockhart v. Eretwell(~f' 5(6 U.S. 364, 369 (1993). Although generally evaluated

by‘a totality of the representation, a single error may be sufficient to

demonstrate ineffective assistance, especially during the punishment phase

of trial. ']hc!rpson, 9 S.W.3d at.813; gr:r__u_c, 104 S.Ct. at 2046 N. 20. The applicant's

burden of proof is one of preponderance of the`evidence. Trnpaxh_9.SJm3dai

8137 .E>c parte Nisvarger, 335 S.W.3d 611, 615.'(']lex. C‘rim. Ppp_.) 2011.).

`PRETRIAL OBJECTION TO ATTORNEY PERFORMANCE_

My pretrial objection to --the assistance of trial counsel is a matter

of record. FR'S: pp. 15-2!). At one point, the trial court terminated counsel's

appointment but reinstated the appointment when new counsel was noteximmediately

available.

DEFICIENT CONDUCT

'I'rial counsel rendered ineffective assistance by failing to develop

a firm command of lthe law and facts of this case through adequate independant

investigation resulting in an insufficient adversarial test of the State's

Islas Reply ~ F_2010-1896-D wpc 1 Page 9

case. This resulted in counsel's inability to provide any opening statement

and a rambling, incoherent, irrelevant closing statement; advice to stipulate

to a critically flawed judgment to establish a jurisdictional element; a

failure to object to law enforcement testinony that was obviously false;

and a failure to challenge the finality of a prior conviction used to establish

a felony intoxication offense.

The State incorrectlyassertsthat I am complaining of trial counsel's

conduct relevant to challenging the admissibility of the blood at trial.

SL H§m Ari,pi & ium\l. This was not stated in my habeas application. HIL

Ppp" pp.]f%ll. Because that was not part of my claim in Ground Three. I ask

that the Court disregard the State's argument presented in it's Answer. (Bzm

14 ga 84».

Likewise, the State has presented the same assertion in a different

manner by characterizing the claim as "Tampering." see S-lAi p. 13, item 8; oorpare

vdth.H;idzttmL pp.lO-UJ No claim of ineffective assistance, related to "tampering",

is expressed in Ground Three.

Because of the argument above, I specifically object to the State's

proposed Conclusion of Law No. 3. No attempt to re-litigate the issue of

admissability, based on "tampering" or other police misconduct has been made

in my habeas application. These are bad faith'smokeand mirror" representations

by the State and should be disregarded.

ITEM 2 - FAILURE 'I'O MAKE OPENING STATEMENT

Following the prosecutor's opening statement, my trial counseli Van~

zura, declined to provide an opening statement for my defense. RRh p.16

The State has argued that this may have been a strategic decision that does

not support an ineffective assistance clainn SB&'HA 9411 The several pre-

cedents cited by'the State addresses only a tactical decision to pass on

‘opening at the start of trial. Vanzura,however, passed on delivering an opening

Islas Rq>ly F-Z)lO-1896-D v\HC l ' Page 10

statement at the start of the defense case as well. RR7: pp. 168-69.

Although not making an opening statement alone may not be deficient

. conduct by itself, the complete lack of van opening statement may demonstrate

a lack of effort to provide.effective assistance. Stouffer v. Reymlcb, 168 F.3d

1155, 1163 (10th Cir. 1999). The opportunity to marshall evidence and provide

a blueprint of the upcoming defense case is a vital aspect of legal advocacy.

Jcnes v. Jc:nes, 988 F.Sipp. lGX), 1CD3 (E`..D. La. 1997); Perring v. NewYork, 422 U.S. 853, %2

(1975),.

Once the State has closed it's case presentation, defense counsel is

fully aware of the State's case removing any justifiable :str:'ateg§i:cr reason

to completely waive making an- opening statement. JoE, 988 E‘.Sug). at lCD3 N. 4.

By depriving.the jury of a roadmap of any defense theory, the jury had no

context to form reasonable doubt of guilt, which harms me by allowing the

jury to presume the lack of a~ viable defense. Stouffer v. Reynolds, 214 F.3d 1231,

1234-35 (lOth Cir. 2013).

ITEMS 3 & 4 - WITNESSES AND MEETINGS

The State incorrectly directs the Court to the appellate decision at

Opinion pages *13-14 to demonstrate that any claims regarding witnesses and

client meetings were resolved as issues. The State's assertion of disposition

of those issues is not accurate as the appeal court made no reference to

ineffective assistance in deciding appellate Issue Three. &]A Exh. Cat- *17-21;

SHA, p. 10 and N. 9.

'Ihe record reflects that two pre-trial hearing .were held, relevant to '

assistance of counsel. RR4 - Hearirgcn 2/7/12:’ FR‘S - [-Earirg cn 2/28/12. My lack

o'f contact with Vanzfir.ai was presented to the trial court. RR4: p. 8. The

lack of pre-trial investigation, regarding witnesses, was also presented

to’c:th`e trial court. RR4: p. 8. Nei'ther the trial or appeal court. made any

findings regarding those issues related to the effective assistance of counsel

isles Peply F-2010-1896-D nic-l Page ll

as claimed by the State.

ITEM 5 - INVESTIGATION

To provide effective representation, an attorney is required to develop

a firm command of the law and circumstances of the case through independant

investigation to allow the development of viable defense theories, provide

meaningful-5 assistnace regarding a decision to accept ~a plea offer, effectively

elicit testimony at trial, and generally subject the State's case to a meaningful

adversarial test. Giildress v. Jol'lnson,y 103 F.3d 1221, 1227 (5th Cir. 1997); bsynes v.

_St&£, 790 S.W.2d 824, 827 ('Iex. A;p. - Austin 1990); U.S. v. D:mes, 218 F.3d 496, 500 (5th

Cir. ZOCD); E.x parte Li_lly, 656 S.W.2d 490, 493 ('I\ex. C‘ri.m App. 1983); 'Eeist v. Soott, 885

F.Slpp. 927, 931 (E.D 'Iex. 1995); Ex parte langley, 833 S.W.2d 141, 143-44 ('Iex. Crim. App.

1992): Ex parte Chandler, 182 S.W.3d 350; 358 ('Iex. Crim. App. 2005). Vanzura's failure

to develop a firm command of the law and facts caused _him to advise me to

erroneously stipulate to a conviction for which finality was unproven; he

failed to even challenge the finality of a prior conviction used to satisfy

a jurisdictional element; he failed to recognize and correct the false testimony

. elicited by the prosecutor from a police officer/z and he failed to present

an opening statement laying out any viable defense, as well as providing"a

closing statement for the guilt phase of trial that essentially gave away

the case to the State. Further, his closing statement for the punishment

phase was rambling, incoherent, irrelevant anecdotal presentation.

ERRONEOUS STIPULATION AND FAILURE TO CHALLENGE FINALITY

In Ground One of the- instant application, original memorandum, and herein,

1 have presented the issue of non-finality of a prior conviction used to

satisfy an essential juridictional element". "".Vanz‘ura's failure to investigate

that conviction and recognize the defects, and apply the law to assert a

viable defense due to the defects was ineffective assistance. Ex parte Giardler,

182 S.W.3d at 358 (ignoranoe of well defined laws and legal ocnoepts); lang v. State, 764 S.W.2d

_ Islas Reply F-z)101896-D~ wmc-l Page 12

30, 31 ('Iex. PW. - San Antcnio 1%9) (a stipllaticn that destroys a viable defense is not strategy).

A failure to investigate a prior conviction is deficient conduct if a potential

defense is ignored. lVbore v. Jd'nscn, 185 F.3d 244; 265 (5th Cir. 1999), cert. denied

120 S.Ct. 522 (failure to investigate prior conviction is deficient die to pote'rtial ciafense);

Vasql.ez v. State, 830 S.W.2d `948,' 951 ('lec. G:im. Ag). 1992)(unreasorsble condlct for attorney mt

to advance defalse recognized by'courts and statutes); Bladdourn'v. Fbltz, 828 F.2d 1177, 1181-82

(6th Cir. 1%7 )(an error of law is not reasonable strategy).

By failing to recognize the potential defense of non-finality that would

result in a lack of jurisdiction, ?Vanzura's conduct was unreasonably deficient.

His failure allowed a felony prosecution and conviction when a misdemeanor

conviction and punishment may only have been possible. Pen.(bde§49AIXa);Vasmrz,

830 S.W.2d at 951 (harm is satisfied by ccnvictic:n if other result prdoable but for attorney

ardxi). Although the challenged felony conviction satisfies the Sziddani

prejudice prong¢ the State argues that the stipulations entered on the defective

advice of counsel bar any challenge to a lack of jurisdiction. SWN p.5;(komd

l daemi If the State's argument is persuasive, then TVanzura's advice harmed

me by preventing the later submission of a claim upon which relief could

be based, although a showing of specific harm may not be necessary. §ZE§

v. lockhart, 851 F.Zd 1115, 1117 (8th Cir. l988)(errcneo.ls stip.]lation pres,rres preju§ice).

But for his advice, I would not have stipulated to the 1993 DWI conviction.

'Manzura's defective advice to stipulate to flawed evidence required

for jurisdiction, in combination with the resulting conviction, felony punish#

menti and any barrier to a later challenge on appeal of that evidence, should

be sufficient as a single error to demonstrate ineffective assistance. Thoqxrn,

9 S.W.3d` at 813; U.S. v. go£, 104 S.Ct. 2039, 2016 N. 20 (1984).

*Nanzura sat silently while the prosecutor elicited false police testimony

regarding the authorization to collect the evidentiary blood used so extensively

against me. At first a police officer testified that the TPF-5l order was

. lslas Reply F-2010-1896-D wmc-l cage 13

a warrant. RR7: p. 108, lines 16-25; SD< 35 - Mandatory Q:der. The characterization

of a "warrant" was deceptively corrected to be a form bearing "... that judge's

signature." RR7: p. 109, lines 2-3. The prosecutor and police officer knew,

or should have lmown, that no judge's signature appeared on the form and

that no space for a judge's signature is provided. Van Zura should have

known that as well had'he conducted a sufficient investigation of the evidence.

"Vanzura's failure tov object or challenge the police officer on cross

examination allowed the jury to believe a judge authorized the collection

of the blood, which more than likely allowed greater weight to'i be given to

the evidence, as well as greater confidence'in the veracity of the police

officer' s1 testimony as a whole. FR7: pp. 111-114 (Va'lzirfa cross'exa¢m_i;'rstio'l, silent

as to document challenge). :_;Vanzura did nothing instead of seizing a valid opportunity

to create reasonable doubt in the case against me. l

The deficient conduct and harm described above flow from an overall

failure to investigate my case and develop a firm command of the relevant

law and facts allowingf.-adequate adversarial testing of the case against me.

ITEM 6 -,STIPULATION

The State complains of a lack of specificity regardng the stipulation.

That assertion is illogical. Only one stipulation of evidence was made.

The defective evidence and my claim was~adequately presented in Ground One

of the original application and memorandum. 1 have made a further presentation

of the claims herein. Based on the original submissions, the State was able

to connect the dots to address the issue but elected to argue lack of detail.

SiAl p. 12 andN. 10. The State's main argument should fail: due to it's obligation

to apply the doctrine of Libera-l construction. Guidrcz v. Lynatgh, 852 F.2d 832,

834 (5th Cir. 1989); Bledsoe v. Jd'n')So'), 1% F.3d 250, 255 (5th Cir. 1999).

ITEM 7 -' CLOSING ARGUMENT

The theory asserted as a defense by Vanzrira". was that I was not the

"c:

. 4Islas apply F-2010-1898-D mic-1 page 14

driver of the vehicle. At closing, Vanzura destroyed that theory due to

his commentary on the State's evidence and admission that my conduct acknowledged

guilt.

The judicious selection of closing arguments is a core exercise of attorney

discretion. Yarboro.)gh v. Centry, 541 U.S. 1, 8 (20)3). A closing statement should

clarify the issues to be resolved by a jury. ldu m:6. The argument should

not contain statements that explicitly-admit guilt. U.S. v. S'\ort, 181 F.3d 620,

624-25 (5th Cir. 1999).

During Vanzurajs closing, he favorable commented on the State's evidence

admitted as STX 37. HU:;L XB. Referring to the police car dash-cam video,

Vanzura stated, "That's real great evidence." .Rl Giving such favorable weight

to that evidence by the defense does nothing to create reasonable doubt.

Vanzura then stated, "Okay. ~He took off because it's a third DWI." BR7:5» ZX&

This essentially is an admission of guilt to the jury and was not based on

any prior interpretation of evidence presented to the jury. The statement

effectively destroyed the defense theory of another driver.

Vanzura made other incorrect assertions to the jury regarding evidence

presentation. RR7: ;p. 205-06 (SD( 37 irtrodlced‘throlgh ml'ic?:e officer testimony). The

dash-cam video was not introduced via police testimony, the video was published

to the jury during the blood evidence testimony. IEU HR 15%60

During the closing, for the punishment phase, Vanzura attempted a rambling,

disconnected, irrelevant, and incoherent plea for leniency that did nothing

but create an impression of weakness and no viable defense. Sulmier\h Fegrids}

168 F.3d 1155, 1162 (l(]:h Cir. 1999)»; 858 ;p. 186-88. He cited a work written by deToqueville

in 1835, stating that criminals are generally unfortunate people, and then

told a story about an off-duty police officer killed while walking along

some railroad tracks and struck by a train. Alcohol was not involved.

In a totality of representation review, the closing statements made

Islas apply F-2010-1896-D wmc-1 rape 15

by Vanzura serve to demonstrate a lack of effort to truly subject the State's

case to any adversarial testing. This complaint is not based merely on.a

difference in wordingi but rather on the substance. GIIer\h Jdmr£n,]lO FLH

1098, 1113 (5th Cir. 1997, cert.' granted, remerded), m remand 131 F.3d 452 (5th Cir. 1997).

I'I‘EM 8 - TAMPERING .,;.

The State has once again incorrectly stated that l am challenging blood

evidence admissability based on tampering and including that challenge as

part of the ineffective assistance claim. SBL p.l3 In supportl the State

directs the Court to the original Wbmorandum at page 9. That reference in

no way implicates an ineffective assistance claim and is contained as part

of my original argument for Ground Two. That is facially obvious and does

not support the State's disengenuine, bad faith representation related to

my ineffective assistance claim. This aspect of the State's defense to Ground

Three should be disregarded.

CONCLUSION

Vanzura's trial representation fell below the reasonableness presumed

for attorney performance. As demonstrated above, harm resulted or may be

presumed to have occurred. l once again request that Vanzura be ordered

to adress this allegation and that I be-providedcopiesof any affidavit or

other submissions at the time they are provided to the Court.

This conviction should be vacated due to the ineffective assistance

of trial counsell `.

IV. .APPEAL` CUJNSEL RH\IDHZED INEFFECI'IVE ASSISTANCE

Appellate counsel failed to identify and submit meritorious issues to

the Court, or advise me of the existence of any such issues for my consideration

or presentation later.

", t .'_":'_ . ',_ ’: '~_ " ` ' '.-'-~".r;

_ Islas Rq)ly ` F-2010-18%-D v\HZ-l Page 16

l' have previously requested that counsel be ordered to submit an affidavit

to address this issue. The State did not propose any findings or conclusions

regarding the effectiveness of appellate counsel's representation. (see St.

wsm ara apprised Finairps, c@rplusias, mrsiips ms 15, 16 ana capllsim-Ns. 4), Hab. ppgi

Ground 4.

STANDARD OF REVIEW

The denial of a meaningful appeal due to the ineffective assistance of

counsel is a cognizable habeas claim. Clivo v. State, 918 S.W.Zl 519, 522 N. 8 ('llex.

Crim. Agp. 1996). The two-prong S;rickland` test applies to this claim. M

Phi111ps, 210 F.3d 345, 348 (5th cir. 2000); Rsis v. csrtemsn, 522 F.3d 517, 531 (5th cir.

3108, cert. dei'd). The applicable standard of reasonableness requires that

while not every non-frivolous ground be raised, meritorious grounds solidly

based on law..and precedent should be presented.4 Phi]lips, 210 F.3d at 348; E'S_,

522 F.3d at 532; Arre`dor v. Quartermen, 458 F;3d 397, 410 (5th Cir. 206 cert. den'd): Mn;s_

v. Smith, 528 U.S. 259, 285 (20(!)).

The State incorrectly asserts that I must demonstrate that but for counsel's

failure, l would have prevailed on appeal. EHA, p. 14. Prejudice is demonstrated

by showing that, but for counsel's failure, the' probability of a".dif'ferent

result exists. Smith v. Robbirrs,v 528 U.S. 'at 285; Fhillips, 210 F.3d at 348; M, 458

F.3d at 411'.

RIGHT TO COUNSEL

l had the right to effective assistance of counsel for appeal. lrnbard

v. Lynaugh, 868 F.2d 1475; 1479, 1485 (5th Cir. 1989); league v. Scott, 60 F.3d 1167, 1170 (5th Cir.

1995).

ARGUMENT

ITEM l - FAlLURE TO RAISE LACK OF FINAL`ITY OF PRIOR CONVICTION

The 1993 conviction pled in indictment elevation paragraph one was necessary

element of the offense alleged as a felony. see Ag>licant'sm‘em. of law, G:omd 1;

Islas Feply F-2010-1896-D VsHC-l Fage 17

Pen. m 49.09(b)(2); State»v. Mewbolrn, 993 S.W.2d 771, 772 ("Dex. App. - 'lyler 1999); Barfield

'v. State, 999 S.W.2d 23, 24 (’Iex. Dpp. - Pbustcn [14th Dist.] 1999). Without proof of

the finality of that conviction, the trial court was deprived of jurisdiction

of the case. Code Crim. Proc. art. 4.057'1Vewbourn, 993 S.W.2d at 772; Barfield, 999 S.W.Zi

at 24N. 1. On appeal, the failure to prove two prior convictions requires

acquittal or a modification of the judgment and a new punishment trial. Barfield,

999 s.w.zd ar 26; Reyes v. State,~ 394-s.w.-3d 809i 812 ('iex. ppg - pnm-1110 2013); Lurdgren

v. Statei 436 S.W.3d 399, 400 ('Iex. App. - Et. Wo:'th 2014; Wbsquia v. State, 936 S.W.2d 714,

"m('Iex. ppg-Ft. mrth1996).

A lack of jurisdiction by the convicting court would render any punishment

imposed illegal as not being authorized'by law., Ex parte Pena, 71 S.W.3d 336, 339

(iex. crim p@. 2002)("111egel" defined es mt minimized by ls»); mizell v. state 119 sw.3d

804, 806 N. 7 ('Iex. Crim. App'. 2303). Relief from an illegal sentence may be obtained

by direct appeal or collateral attack. M, 119 S.W.3d at 806; _Pel;)a, 71 S.W.3d

at 339and N. 1. Jurisdictional claims are not waivable and a district court's

jurisdiction in the instant case is only had when the felony predicates are

satisfied. Miller v. State, 939 S.W.2d 586, 592 ('Iex. Ppp. - Austirr:1995)(jurisdictio'1a1

matters mt »eiveldle_); code crim Prec. art. 4.05; wewbdim, 993 sw.zd et 772.'

Appeal counsel failed to recognize the defective judgment the State

claims proves finality of a conviction required as a jurisdictional element.

The failure of counsel to present the issue was conduct that was not reasonable.

The issue is arguable in- statute and precedent and would require a different

result from the appeal court. Fletcher v. State, 214 S.W.3d 5 ('lex. Crim. P;p. 2007)(at

8 - no harmless error analysis.reqdired; at 9 - proper reredy is reversaland remand); M

v. Robbins, 528`U.S. .at 285. Counsel failed to adequately develop a command of

the law and precedent to properly apply that knowledge to the circumstances

supporting this issue and make an informed decision on its merits. _U.S._v.

Phillips, 210 F.3d at 348 (reaso'!ableness starr;lard); Eb<_parte Ybarra, 629 S.W.2d 943, 946 ('Iex.

isles Peply F-2010-1898-D wit-1 ' Pege 18

Crim. App.'. 1982) (effective assistance reqlires firm command of facts ard law, thcxolgh investigation

is fcundaticn of effective assistance); Elx parte Giandler, 182 S.W.3d 350, 358 ('I\ex. G:iln. App.

2005) (ignorance of mall-defined statutes, general laws, cr legal p:qacsitio"ls not excusable).

Counsel's failure '1 fha"s:- prejudiced me by failing to present a juris-

dictional error'upon which relief would be required if proven true. The felony

sentence imposed is illegal if the jurisdictional`§ error only allowed for

a misdemeanor sentence at the time of trial. l

ITEM 2 - FAILURE 'I‘O CHALLENGE ADMISSABILITY OF'BLOOD SAMPLE EVIDENCE BASED

ON MCNEELY

The U.S. Supreme Court rendered it's decision in D/ti\leely on April 17,

2013, during the pendancy of my appeal) which concluded on September 29, 2014,

over one year~later. Although the length of the appeal review period was

directly due to further proceedings regarding admissability of the blood

sample evidence due to police misconduct, counsel failed to also challenge

admissability based on the illegal seizure of the evidence. see Ag)licant's

P/En. cr law, G':oind 2.- This failure was unreasonable due to the extensive use

of the blood evidence at trial'. SIX'- 397 RR7 pp. 138-159. Further, the collection

of the blood sample was decep_.t?:i’v;e“ljy mischaracterized during testimony elicited

by the State from a police officer. P§plioant's Mem. of law, p. 7; RR7: pp. 107-109.

lt cannot be said beyond a.reasonable doubt that the use of the blood evidence

did not significantly contribute to the jury verdict. -Had my trial counsel

raised the constitutional claim allowed by ,I‘/bNeely, it is more than probable

that a new trial would be required.

The State claims that it is "unclear" whether or not MiNeely could have

been applied retroactively, citing only one case from a different state to

support this lack'of.clarity. see SHA,Jp. 15. The greater weight of precedent

relevant to a 'Dexas conviction clearly establishes that I was entitled to

the application of leNeely~ to the appellate review of my conviction. Danforth

isles Peply F-2010-1896-D mic-1 Pege 19

v. Minresota, 552 U.S. 264 128 S.Ct. 1029, 1032 (2£!)*); Wnartoi v. Bccking, 549 U.S. 4C6 127

S.Ct. 1173, 1180 (2(07); State v. Esher, No. 05-14-00694-CR, 2015 'Iex. App. LEX_`[S 7722 ('Iex.

Ppp. - Dallas 7/27/15, m pet. ); Allen v. leed, 427 F.3d 767 (10th Cir. 2CD5)(at 770 citing

Griffith v. I<entud<y,' 479 U.S. 314, 322 (1987), aid rleague v. lane, 439 U.S. 288, 310 (1%9).

The State's assertion has little merit. Had my appeal counsel successfully

presented the clearly meritorious claim pursuant to §§§§§y, a different result

for the appeal proceedings would have resulted. Instead, counsel failed

to adequately challenge the admissability of the blood evidence and deprived

me of the review of the constitutionality of the blood evidence used against

me at trial, contrary to my right to due process and a fair trial.

Although§§§e§§:was decided during my appeal, it should be noted that

a Texas appeals court decided in 2011 that the Transportation Code does not

authorize what the U.S. Constitution forbids. State v. lvbsely, 348 S.W.3d435, 442

(iex. ppg - pistin 2011, pet. ref'd).

CONCLUSION-'

The successful presentation of either issue described above would have

resulted in a different appeal outcome. 'Either issue outweighed appeal grounds

one and two selected by counsel.v 1

I request that counsel be ordered to address this habeas issue by affidavit,

with a copy provided to me when it is submitted to the Court. I object to

the State's Proposed Findings and Conclusions as contrary to the record and

because the appeal attorney has not been afforded an opportunity to address

this claim.

III. CDNCLUSION

This conviction is based on a trial and appeal conducted in a manner

that does not allow for a presumption of reliability in the result. The

conviction should be vacated. I pray that the Court consider my objections l

to the proposed findings and conclusions, order the attornies to address

§

isles nep1y F-2010-1896-D wic:-l

the claims of ineffective assistance, reject the State's original proposed

findings and conclusions, and provide all relief allowed by law or previously

requested.

IV. ADDITIONAL OBJE(,'I‘ION

On November 20, 2015, 1 received a copy of the ORDER dated October 29i

20151 adopting the State's proposed findings and conclusions. The envelope

was postmarked November 16, 2015. 1 object to this untimely notification

of the ORDER, for which there is no good cause.

1 continue my previous objection raised herein and request that this

case be remanded for further consideration.

reviews

BRANDON ISLAS

Applicant Pro se

TDCJ-ID# 1810458

Thomas J. Goree Unit

7405 Hwy. 75 South

Huntsville, Texas 77320-3405

Rge 23