Petition for Writ of Certiorari — Juan Francisco Turcios, Petitioner v. Texas

*

FILED

APR 05 2024

g5^F<3S[^K

?

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JUAN FRANCISCO TURCIOS

— PETITIONER

(Your Name)

vs.

STATE OF TEXAS

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

COURT OF CRIMINAL APPEALS OF TEXAS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Juan Francisco Turcios

(Your Name)

3 Jester Road TDCJ-ID Jester III

(Address)

Richmond, TX

77406

(City, State, Zip Code)

none

(Phone Number)

RECEIVED

APR 16 m

QUESTION(S) PRESENTED

(1).

In

accordance with Judicial Discretion,once the trial Judge

accepted and approved the plea bargain agreement for the maximum of

ten

the

years,did

trial

court

erred

bv sentencing petitioner

to a twenty years?.

(2).The

once

Texas Court of Criminal Appeals,and Federal Constitution,

the

possible maximum is set,the trial court must honor it?.

(3).The Supreme Court of the United States has no related cases

that

as

shows "once the trial court bound itself in the plea bargain

to

the

maximum

possible

sentence,the

court must carry out

such sentence"?.

(4).The Court of Appeals,erred by ignoring the plea bargain agree­

ment , specially

when

there

also

the

Code

ignoring

no initials on the cross-out,and

of criminal Procedure art.26.13(a)(2)?.

(5),The

trial

defense

counsel wassworking biased with petitioner,but did nothing

to

resolved

(6).The

Judge

was

the

trial

knew

of

issue,was

court

the conflict of interest,and that

the

approved

court abusing its

-discretion?.

and accepted the plea bargain,but

the court continue admonishing petitioner wrong,and defense counsel

never

aid

,or

correct

the court,but instead render ineffective

assistance,was this failure of the court? or the defense counsel?,

or both?.

(7).The

Court

of

criminal

law,did

Criminal

Appeals

as the maximum authority in

the

erred

by not addressing petitioner

court

claims?,or was this abused of judicial discretion?.

(8).Petitioner

present

for

mandamus,to

writ

of

the

appeals

correct

court with 3 or 4 petitions

petitioner's sentence,but the

court abused its discretion by requesting items not needed,is this

right?.

LIST OF PARTIES

ptf] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

TURCIOS v.STATE,2013 Tex.App.LEXIS 12443

IN RE TURCIOS,2014 Tex.Crim.App.LEXIS 442

In re TURCIOS,2014 Tex.Crim.App.LEXIS 448

EX PARTE TURCIOS ,2015 Tex.Crim.App.Unpub.LEXIS 389 & 530

TURCIOS v.DAVIS,2018 U.S.DIST.LEXIS 149608

In re TURCIOS 2020 Tex.Crim.App..Unpub.LEXIS 133

In re TURCIOS,2020 Tex.App.LEXIS 6593

In re TURCIOS,2021 Tex.App.LEXIS 1317

Inre TURCIOS,2022 Tex.App.LEXIS 453

Inre TURCIOS,2023 Tex.App.LEXIS 161

In re TURCIOS, 2023Tex.App.LEXIS,9121

Turcios v.Davis,2018 U.S.Dist.LEXIS 148904

Turcios v.Lumpkin,2020 U.S.App.LEXIS 42465

TURCIOS v.LUMPKIN,142 S.Ct.568 (2021)

TURCIOS v.TEXAS,143 S.Ct.1763 (2023)

TURCIOS v.TEXAS ,144 S.Ct.40(2023)

TABLE OF CONTENTS

1

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

PERKINS v.lHIRD C.O.A. SUPREME JUD.DXST

EX PARTE BECK....,..........................

LAFLER v.COOPER,.. ,......................... .

MISSOURI v.FRYE......... ........... ,............

SANTOBELLO v.NEW YORK.

I# RE REECE..........................................

BfelCSGN v.PARDUS................. ,....... .......

...,2,3,B/3

»8,

.9,10,15,B/4

,..9,10,15

10,B/3

,...11,12

12,13

HARRIS v.NELSO,............................ ......................

RODRIGUEZ v. STATE........... ................... .

MOORE v. STATE.....................................................

BRUNELLE v.STATE............................ ..............................

BHTERMAN v.STATE,................... .................. .

ORTIZ v. STATE......................... ........................

14

15

B/l

B/l

B/l

B/l

STATUTES AND RULES

Texas Code of Griminal Procedure art.26.13(a)(2).

TEX.CODE OF GRIM,FROG.art.§ 11.07,.............

U.S. CONST. ART. 1 § 9 c!2....,...............................

..Z^AB/l.B/B.S

.........10,13,B//1

.14

OTHER

PAPILLON v. STATE.............

54 WILLAMETTE L. REV. 137

i *

, .B/6

...B/4

**( NOTE )■**• Petitioner is a lay man of the law,please excuse as "B” stands for

pages on the Reason for Granting.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

M For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix Q "6 to the petition and is

[ ] reported aiUlfc ^\

--Q&

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

court

to the petition and is

appears at Appendix

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was --------- ----------------------[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

and a copy of the

Appeals on the following date: -----------------order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including _------------------------- (date) on----------------------------(date)

A

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

|Xy For cases from state courts:

The date on which the highest state court decided my case was January 10yl?024

A copy of that decision appears at AppendixWR - 83,1-55-08

[ ] A timely petition for rehearing was thereafter denied on the following date:

____________________ _ and a copy of the order denying rehearing

appears at Appendix---------[ ] An extension, of time to file the petition for a writ of certiorari was granted

to and including--------------------- (date) on---------------------- ■ (date) in

Application No. —A---------The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The wisdom of a constitutional provision [m]ay not be question

(art.26.13(a)(2),nor

can

judicial

the express provisions of the

set

the provisions

the

meaning

forth

policy

be

contrary

to

Code of Criminal Procedure,or

on

the

constitution,however,if

of the language of the Tex.Code of Crim.Proc.is

clear and unambiguous,the effectivenes of the code must be gi­

ven effect without regard to consequences.

Article

§ 11.07 Habeas Corpus,The Court of Criminal Appeals,

[is] the only appellate court in Texas that possesses general

ana unlimited power to issue writs of habeas corpus in crimi­

nal

cases... Under

the

habeas

corpus

article

of the Code

of Criminal Procedure,the court of criminal appeals alone among

the courts of Texas has authority to...release from...confin­

ement persons who have been... finally convicted of noncapital

felonies...such

as

illegal

sentences,or confinement...that

can be raised at any...time.

" 38 Tex. Jur. Extraordinary Writs § 181" (§181) An original

proceeding for a writ of mandamus initiated in the trial court is a civil action subject to trial and appeal on substantiv

issues and rules of procedure as any other civil suit. It is

not a criminal action even though it may stem from a criminal

proceeding and even though it may be available in a [cjriminal

with

matter and be issued to ...compel in action in connection

a

criminal

case.,however

as

a

criminal law matters

must be carried out as proscribed by Texas Law.

STATEMENT OF THE CASE

Petitioner in his efforts to make this simple and economic must

start from the top;

On September 14,2011,petitioner was arrested on suspicion of

domestic-violence-later charged with aggvt/assault-w/weapon,and

Brurglary

Family

of Habitation,before the criminal case took place,a

Court,was

held

in which The Honorable Judge1 was the

act as [mjediator, between petitioner and Maria Perez(the corapplaint),

caught

in

a

quick review after 10 or 15 minutes the Judge

Perez lying about many issues including the complaint ?

the Judge also noticed that Perez :,

^ lodge a criminal compl­

aint

against

must relevant part of this

issue

is

that

petitioner,but

the

Perez first cry telling the Judge that I have

not seen her in more than two years,and that petitioner failed

to support the two sons that he shared,this happen on February

2012,where the insident happen^ February 27,2011.

On April 9,2012 a preliminary hearing was held,ahd after some

10

to

15

offer

minutes

the judge ask the prosecutor if she would

probation,the

prosecutor(Ms.Hawkins)reply

my

offer

is for 15 years prison,then ask defense counsel(Mr.Johnson),to

counter, in which he say 10 years, the trial Jqdge Teresa jH^thorne

then

said

Johnson

you

told

want to talk it over with your attorney,where

the

prosecutor

defendant

agrees to 10 years.

The fact of this conversation is memorialized in the two plea

bargain

documents

(F11-70S86-P

&

Fll-70896HP)the

maximum

sentence of 10 years,on 70896 for deferred adjudicated probat­

ion,and 70886-ten years TDCJ or confinement.

The Honorable Judge then approved and accepted the plea bargain

upon

her

signature,as

relevant part on the last page of the

( 1 of 15 )

reporters

defense

record,volume

counsel,and

one,page

the

16

prosecutor

the Judge ask both the

if

there

was anything

else;

THE COURT: State have anything at this time?

MS. HAWKINS: I’d just like it to be put on the record that my offer is

for 15 years TDC.

MR. JOHNSON: I think you put on the plea bargain ten...

Under Texas Law,Criminal Caselaw, and Texas Code Criminal Proccedure,art.26.13(a)(2) it provide the following:

(a) Prior to accepting a plea of guilty or a plea of nolo

contendere,the court shall admonish the defendant of:

(1)the range of punishment attached to the offense;

(2)the fact that the recommendation of the prosecuting

attorney as to punishment is not binding to the court.Prov­

ided that the court shall inquire as to the existance of a

plea bargain agreement between the State and the defendant

and ,if an agreement exist,the court shall inform the

defendant whether it will follow or reject the agreement in

open court and before any finding on the plea.Should the

court reject the agreement,the defendant shall be permitted

to withdraw the defendant's plea of guilty or nolo contend­

ere ; .

Petitioner cites and uses tne following case to illustated,how

he

perceived his case;

PERKINS v.COURT of Appeals for Third Sup.Jud.List,738 S.W.2d.276(Iex.Cr

im.App.1987)Overview. Relator trial judge agreed to the terns of a plea

agreement between the state and defendant In which the maximum term of

incarceration to be imposed by relator was set at 25 years.Under the

agreement,relator was free to impose a lesser sentence.At sentencing

relator sua sponte moved for and granted defendant a new trial.Respond-

ent appellate court issued a writ of mamdamus that ordered relator

to specifically enforce the terms of the plea agreement and to enter

judgment accordingly.id Hie court found that once relator accepted defe­

ndant's plea of guilty and approved the plea agreement,he was without a

any authority or power to do other than specifically enforce the agree­

ment .The court denied relator's petition for mandamus and ruled that

( 2 of 15 )

when defendant entered into a plea bargain agreement with the prosecutor

and relator approved the agreement,and the agreement was not kept,the

proper relief was either specific performance of the agreement,or

withdrawal of the plea if requested by defendant.The court found that

relator's action of sua sponte granting a new trial was void.

The fact that petitioner's case is [ajlmost identical as the

one above,but because petitioner defense counsel its been very

hard

to

overcome

hearing,for

all

the

obs tacles

that follow the plea

exemple the law provides that the judge announces

the maximum sentence attach to the case,in this case 10 years,

but

contrary

to

the

law

petitioner's

accepting

Judge Hawthorne after signing and

plea

bargain,she

kept

admonishing

petitioner to 5-to 99 of life,neither defense counsellor the

prosecutor corrected the judge,or perhaps the judge failed to

read the contract that she had previously accepted

and appro-

vedf[p]rofessional conduct suggest that competent representation

under prevailing professional norms includes a bare minimum,co*mmunicating

with

the

client,the

court,any

offers,pleas to

expedite the process and saved resources.ABA

standards provide

"an attorney is require to act with reasonable diligence and

promptness in representing a client”However, counsel never convey the court,or corrected the court,during the court wrongful

admonishment,petitioner trial continue as it was

plea bargain

no

took placed.

Defense Counsel Mr. Paul Johnson,keep providing incorrect info­

rmation

through-out

Petitioner's

of

probation

case

the

trial,and

during

appeals process.

passed to P.S.I. as it was the possibility

tin the horizon,however, during petitioner's

interview for probation,one of the officers require petitioner

( 3 of 15 )

to confess as to what happen during the crime(basicly telling

your side of the story)the probation officer concluded that both

petitioner and Perez were guilty,then the officer ask If you

wasn't guilty why did you plead guilty?.

Petitioner

answer

was;

I didn't have any help from my court

appointed counsel Mr, Johnson,Johnson was very clear as he said

"I'm not goin to help you,just plead guilty."

Petitioner

as

he

realized he was [d}oomed,he try to lower his bond,

filed at least five motions to lower his bail,in which

Johnson ask petitioner in one occasion; Why do you want to lowwer your bond? Petitioner reply to get money for a good lawyer.

Johnson reply, No because you may run. But contrary to Johnson's

assertions petitioner was out on bond for a State-Jail Felony.

During sentencing stage,as it is part of the reporters record,

on volume four,page 20 the court inquire as follows;

PROSECUTOR: So I just think for the safety of all parties involved,more

so those two children that she'll be responsible for,the State is asking

that you sentence the defendant to the TEXAS DEPARTMENT OF CORRECTIONS.

THE COURT: Okey. And just because this has been in a three-part series, I

just want to make sure that we're correct on the fact that he had two

enhancement paragraphs and you agreed to drop those?

MS. HAWKINS: Yes, ma'am.

THE COURT: And I granted that.

Mr. TUrcios, can you please stand. I wish I hadn't granted that motion * * *

The court lamented that she had granted the quashed ; enhancements(alth­

ough the enhacements were old,and for probation,and could not be use)the

court failed to adhere to ’iart.26.13(a)(2); as "once the court bound

itself ,is bound to carry the terms of the plea bargain it approved,and

accepted."

The prosecution in accordance with the Supreme Court findings in Santobello

must also inform the court of their promise,and the maximum sentence.

The prosecutor obligation is to scrupulously comply with the letter of the

( 4 of 15 )

the

plea

bargain that also bound to carry,it means that even

technical compliance will not suffice if the prosecutor other­

wise "undercut[s] the plea agreement"

The

coraittment it has its burden on all members of the court,

as

neither

Johnson

the

prosecutorMs. Hawkins, or Defense counsel Mr*

alerted,signal,inform,or

the

wrong

to the court upon

sentencing

petitioner

The

court must recognized the importance of the signed

trial

to

objected

sentence

of 20 years.

plea bargain documents,as it is theSi£heme of justice and the

concomitant for the court to adhere to these strict compliance

and hold the prosecution to the most meticulous standard of

of

both

promise

and performance,the court failure to adhere

to

its

promise

requires

beginning

of

a

reversal ,but this was just the

long tortuous process that it look like have

no end,defense counsel Mr. Johnson then kept obstructing petit­

ioner like an enemy,as petitioner filed a notice to appeal,with

the

help of other inmates in the county jail on April27,2012.

Petitioner

Dallas

filed

District

7,2012,and

a

total

of

3 notice's to appeal,that the

Attorney try to corrupt,finna1ly on November

after

loosing

the

gra^e

period

to correct the

sentence without appeal,the trial court appoint a (civil law)

lawyer Mr. Matthew J, Kite,although Mr. Kita had good intentions

he

had no experience on criminal-law,or one can said criminal

law wasn't his forte,Mr .Kita never touch the plea bargain,alth-»

ough it was part of the Trial Court Clerk Record,and the direct

appeals Clerk's record.

Petitioner

was

on

a

quick-sand as the Fifth District Court

of Appeals at Dallas after replacing the facts on petitioner's

( 5 Of 15 )

/

trial,In its opinion the Appeals court went on in saying;

(" Without the benefit of a plea bargain agreement,Juan Francisco

"furcios pleaded guilty to the offenses of burglary and aggravated

assault»lhe trial court sentence him to twenty years improsfcment........

FACTUAL BACKGOUND: Before he was arrested for these offenses,however,apellant was involved in a serious motorcycle accident.On the schedule

trial date,appellant appeared in court on cutches,waived his right to a

jury trial,and entered an open plea og guilty to both offenses.At the

sentencing hearing over two weeks later,appellant was using a walker.Apellant testified that "[The doctors]"could not finish all surgeries

because I, you know came up with diabetes and high blood prssure and,you

know,a whole lot of other things.")

Contrary

to the above,petitioner only testified at preliminary

hearing,of the facts to the accident,he could not walked,as the

doctors at Parkland Hospital restrict him to "no weight batrter"

he could not walKlnstead use a wheel-chain; on that hearing,furthar,the

appeals

court

had

copies

of

the two plea-bargain

documents which reflect the maximum of ten years, petitioner vol­

untarily enter Parkland Hospital on June 2011,and was diagnosed

with

type

accident

two diabetes,he later was discharged,then the fatal

took place on

June 30,2011,petitioner was on induce-

coma for 3 weeks,how bad can petitioner’s luck-go

v. :,after the

accident,and after labor-day weekend,where he took the two baby

boys to the beach,petitioner got arrested,how bad-can the luck

be,petitioner

original

lawyer-and

friend

Mr.Jim

Moore

was

running for Dallas Mayor,for unknown reasons Jim get disbar*then

Paul Johnson gets appointed,in short in less than "one"l yearjggg)-'

itioner

goes from a normal citizen to broke-down,beaten,convi­

cted,in prison it is like a horror-story.

Petitioner

trial counsel Mr.Paul Johnson,after trialrintroduce

an affidavit of facts which reflects how-much hate he have for

( 6 of 15 )

petitioner

i counsel's affidavit,where for insta-

•/ *

nee (" Mr.Turcios was very difficult to represent and deal with

throughout

the

entire

of

the

case • • • I

met with Mr.Turcios

on several occasions and discussed all Aspects of his case fully*

**). Counsel means encouraging petitioner to plead guilty,however

unlike counsel statement petitioner didn't: even know what he was

in jail for,a -proof of this is a letter sent to the Dallas Dist­

rict

Clerk,(the

letter

was redacted by a fellow inmate)where

petitioner is asking the clerk why he was in jail.

Counsel on his affidavit stated that he met with petitioner on

occasions • • • contrary

several

to that assertion petitioner,pan

proved with the help of the clerk's record that counsel was act­

ing contrary,as petitioner told the trial judge on a motion to

reduce bail,and a personal memo /’counsel seeks only plea agree­

ment

and

show

no interest on helping me or my cause". I pray

that you honor replace counsel. Signed March 28,2012

Unlike

defense counsel,petitioner can "proved beyond reasonable

doubt" that counsel never try to help petitioner,that after pet­

itioner was threaten by the Court with life in prison for a

crime he did not commit chose to plead guilty for 10 years,pet­

itioner presented every court,hereafter with the same facts,but

once

he

reach

the

Fifth Circuit on his brief for the court,

petitioner introduce the facts to the plea bargain agreement,but

on

its

opinion

,2020 U.S.App.LEXIS 42465,The Honorable GREG6

COSTA,in his opinion for the court [2jiThat counsel was ineffec­

tive, laboring under conflict,and that the district court breacched

the

plea agreement,and that his sentence is void,Turcios

motion to supplement the record on appeal is denied.COA

( 7 of 15 )

is DENIED.

The Court of Criminal Appeals of Texas ,held that a [d]efect whi­

ch renders a sentence void may be raised at any time.(citing ExParte Beck,1996 Tex.Crim.App.LEXIS 71("We held that where the

punishment

pursuant

to

a

negotiated

plea bargain agreement

exceeded the statutory maximum,the proper relief was to set asi­

de the judgment and remand the applicant to the Sheriff of the

convicting county to answer the indictment.In the instant cause

the

trial

court has found that the guilty plea and subsequent

conviction were the result of a plea bargain agreement.Thus,the

petitioner

bargain

granted

the cause is remanded to the 203RD J.D.C.of Dallas

in

for

illegal

sentence,therefore relief is

County.")

[Ijronically,the case above comes from the same court that

sen-

-ntence petitioner,therefore,if ? a fair minded court,or juris; j

will

reverse a sentence unless there is an abuse of discretion

or some defect in the sentencing procedure,but petitioner point

that

no

[Cjourt

after

the illegal sentence was imposed ever

held a hearing,consider the law of art.26.13(a)(2),or the plea

bargain

j$e

a

documents,although

the

documents.ufenat tamper with,and

relative

insident

remand

on

issues,the State,or Dallas District Attorney's

Office

send

hot

the

IAC

on

front

its

of

during the Court of Criminal Appeals

reply

to

cause (70886) a back copy,but

that plea bargain agreement,here included.

In petitioner "breached of plea bargain"the plea agreement obliigate

the

State

to

follow the sentencing recommendation,the

Court to executed the recommendation from the State,and the def­

ense counsel to&j>k>cate for petitioner,correcting the Court,when

the Court erred in its

admonishing wee«g,when the court i ( 8 of 15 )

consider the illegal enhancements,or before the trial even took

placed

and

petitioner was requesting a bond reduction,defense

counsel could have told the court "I don't like petitioner due

to

the

fact that initially when ask petitioner about him self

as

[o]ne

of most

must notorious lawyers in Dallas,petitioner

told counsel he did not believed that*as every where petitioner

went Jim Moore,Tom Cox and other attornies names came up but not

Paul Johnson”.

Petitioner and Johnson got in a heated argument about the P.S.I.

report

when

Johnson

read

it was furious,and told petitioner

"You're not going home today I make sure of that."

In short some plea agreements obligate the prosecutor to ramain

silent,in

petitioner's

case however,the prosecutor Ms.Hawkins

did not remain silent but advocate to harsher sentence,than the

one she agreed-to,this is contrary to all Supreme Court preced­

ents like LAFLER v.COOPER,566 U.5,156

MISSOURI v.FRYE,566 U.S.

134 .

In

order

to

prove

prejudice a petitioner who claims that he

plead guilty for a "capped"sentence,and proceed to trial as it

no

plea

bargain

took

place,and due to his counsel deficient

performance stood trial with grossly adversary consequences,and

such

consequences

miscarriage

of

never

been

justices",where

address it amounts to "grossly

petitioner

still

suffer the

injuries

cause by .-that- defense counsel,as he been incarcerated

past

maximum

the

term

that, he agreed,and where in Texas the

Board of Pardons and Paroles does not work,even when petitioner

notified the Board that he is illegally incarcerated.

In Lafler v.Cooper,supra the petitioner was prejudice by counsel's

ineffective

advised,he

would have accepted the plea offered.

( 9 of 15 )

__^-rv. .

In MISSOURI v.FRYE.supra the court ,found that due to counsel's

the plea was never communicated ,due to counsel's ineffectivness.

Because

counsel

allowance

the

plea

offer to expire,but for

counsel's errors he would pleaded guilty and accepted the plea.

In SANTOBELLO v.NEW YORK,92 S.Ct.495(l97l)The judgment was vacated and the case remanded for reconsideration.

In

petitioner's case as the Court of Criminal Appeals of Texas

held a "petitioner who claims or sits on illegal sentence can

challenge it at any time • • • further the Court insisted that the>

petitioner can also challenge by using a "Nunc Pro Tunc Motion"

a "writ of Mandamus',* or article 11.07.State Habeas.

Petitioner filed all of the above,a total of five Nunc Pro Tunc,

three Writ of Mandamus,and two State Habeas Corpus.

The

trial

Court has

never answer or consider any of the NunG

Pro Tunes,the Fifth District Court of Appeals,in four writs,the

court

uses

"Civil Law"instead of "criminal Law" as require,to

dismissed,DENY,or Denied petitioner.

The

Court

of

Criminal

Appeals a total of eight writs,all of

them "Denied without written Order."

No

Court

"has

ever address the illegal sentence,plea bargain

agreement,plea documents,or ineffective assistance claims ,on

the plea bargain agreement*.’

Petitioner

points out that as defense counsel on April 9 ,2012

at the end of the hearing • • • agreed with all members of the court

that

petitioner

agreed to a "TEN YEARS ON THE PLEA BARGAIN.",

In defense counsel's affidavit,he is the one who changed his mind

not petitioner,as there is no proof that the Court held another

( 10 of 15 )

hearing,or that the trial court executed a different plea agree­

ment other than the one for ten years.

Petitioner is fighting to stay alive,and for his freedom,as on

the 6th day of November,2023 requested the Honorable Rachel

"Rocky”

Jones

an appointment of counsel,in January petitioner

daugther

in

Dallas

copy of that petition,which

send

his

she

e-mailed it to the 203rd Judicial District Court of Dallas

County. On the 6th day of February the Honorable Judge Jones ans­

wer the petition as follows "ORDER" On this day came to be considered

defendant's

pro

se "Motion for Appointment of counsel

on Behalf of Relator Arising from the above felonies(Fll-70896-P

F11-70886-P),to

sit

as

Special Master to Aid Relator Over

violations Steaming [sic] from Violated Plea Bargain Agreement."

Having

considered

the motion and relevant authority,the Court

is of the opi iinion that said motion should be denied. Signed the

6th 4&y of February,2024 Rachel "Rocky"Jones 203rd J.D.C.Dallas*

Petitioner

will

not give up,as in his efforts ask the Supreme

Court of Texas,to clarify for the Fifth District Court of Appea­

ls the difference between "Civil Law" and "Criminal Law Matters"

petitioner cites the Court with the following;

In re Reece.341 S.W.3d«360(Tex.Sup.Ct.2011)(The Court was presented with

a question arising from the bifurcated nature to provide a forum for

a civil litigant who is deprived of liberty pursuant to a court's eontetempt order,and the Court of Criminal Appeals has declined to exercise

its habeas jurisdiction.<at-374>It is difficult to imagine a circumstance more compelling without a remaining procedural safeguard for challenging his confinement,Certainly,a result of our inaction is a potential

waste of judicial and litigant resources as the cases travel between th(£

( 11 of 15 )

Court and the Court of Criminal Appeals, vwrtW neither court exercising

jurisdiction to consider the merits of Reece’s petition. But the further

consequence of Reece’s lack of an adequate appellate remedy in this matter s

his [u]nlawful confinement idt the relator's very liberty interests are

at stake with no other procedure to challenge his confinement in our state

court <at-377> Because the trial court abused its discretion in confining

Reece for criminal contempt for acts of perjury occurring during a deposi­

tion and Reece has no adequate remedy by appeal,we conditionally grant

the writ of mandamus and order the trial court to vacate the May 29,2009,and

June 24,2009,contempt judgments against Reece.We are confident the trial

court will comply,and our writ will issue only if it does not.

Petitioner on the 25th day of January,2024 requested the Supreme

Court

of

Texas,under

jurisdiction [d]efine for the

Fifth District Court of Appeals at Dallas,the difference betwe­

en writ of mandamus-over civil law,and writ of mandamus in a

criminal law,although the court as it today March 19,2024 hasnot yet address either the issuetfngr resphn^ petitioner writ,its

unknown what the court will decided.

Petitioner's [p]lea bargain,and all the issues relevant around

the

plea

agreement

’’never been address by no court”,as even

the trial court has yet address,after all this writ that been

filed

in

all

different

has yet decided it

• • f

courtfs,State

and Federal no Court

Why ?.

ERICKSON v.PARDUS.127 S.Ct.2197(2007).”A pro se complaint,however,inartfully pleaded,must be held to less stringent standards than formal

pleadings drafted by lawyers.”

Petitioner presented all arguments needed to develop any doubt

®r case-law for legal error as the Dallas Court of Appeals,ar­

gued

to

denied

every time as follows; (

Relator is dismiss

for want of jurisdiction,he should brough up this under 11.07.j

[Accordingly,we

deny

the

deny relator's petition the trial court,must

petition

if

the court determines relator is not

( 12 of 15 )

entitled to the relief. [A]s relator's comments that this court erred by

denying his most recent petition for writ of mandamus,this court lacks

power to grant mandamus relief against itself,accordingly we dismiss relator

petition for want of jurisdiction;/

[N]one of the documents included with relator's petitions are certified

are certified or sworn copies. They are also incomplete in relation to the

documents material to his claim for relief accordingly, WE DENY RELATOR'S PET­

ITIONS FOR WRIT OF MANDAMUS/.)(citing 2020 Tex.App.Lexis 6593/2022 Tex.App.

LEXIS 453/,2023 Tex.App.LEXIS 161./2023 Tex.App.LEXIS 9121.)

All

of

the above cites pertain to petitioner style as Relator

requesting for the Fifth District Court1 of Appealsthe Trial Court

enforce the plea agreement that it was accepted,and by law must

be honored(State and Federal).

Petitioner points out that while there is Supreme Court cases of

broken

plea

agreements,unfullfil

promises,this

case will be

important beyond the particulars facts ,as there is never been

an

agreed case,with document signed,and accetpted by the trial

court,then violated to the extreme that no lower court wanted to

address jit, there is 0% of cases like this one. See

BORPENKIRCHER v.HAYES,1978 U.S. LEXIS 56<at-361X Whatever nu^htbe the

situation in an ideal world, the fact is that the guil ty plea and the ofr ten concomitant [p]lea bargain are Important components of this country's

criminal justice system<362>Properly administered,they can benefit all

concerned.BLACKLEDGE v.ALLISON,431 U.S.63.71.Ihe open acknowledgment of

this previously clandestine practice had led this Court to recognize

the importances of counselid during plea negotiations.BRADY v.UNITED STA

TED STATES,357 U.S.742,758,the need for public record indicating that a

was knowingly and voluntarily made,BOYKIN v.ALABAMA ,395 U.S.238,242,and

the requerement that a prosecutor's plea bargain promise must be kept.SA *

NT0BELL0 v.NEW YORK,404 U.S.257r262.1he decision of the Court of Appeals

in the present case,however,did not deal with considerations such as these

but held that the substance of the plea offer itself violated the limit­

ations imposed by the Due Process Clause of the Fourteenth Amendment.Cf.

( 13 of 15 )

;

The writ of habeas corpus is the fundamental instrument for saf­

eguarding individual freedom against arbitrary and lawless sta­

te action.id,Its pre-eminent role is recognized by the admoninition in the Constitution that:."The Privilege of the Writ of

Habeas Corpus shall not be suspended » « ♦ • "U.S.Const.,Art.l,§9,cl.2.

The scope and flexibility of the writ-its capacity to reach:

all

manner

of

barriers of

illegal detention--ita ability to cut through

form and procedural mazes-have always been emp­

hasized and jealously guarded by courts and lawmakes.The very

nature

of

the

writ demands that it be administered with the

initiative and flexibility essential to insure that miscarria­

ges

of

justice

[Ajs

Blackstone

within its reach are surfaced and corrected.

phrased

it,habeas

corpus is Mthe great and

efficacious writ,in all manner of illegal confinement."(citing

Harris v.Hel3onf89 S«Ct.1082,1969 U.S.LEXIS 2161)

Petitioner argues that he was submitted to a double trial,as

he

r

had already pleaded guilty,the plea bargain was set,as

to the maximum possible sentence,as opposed to the minimum,but

for defense counsel he was hold to a "Double Trial",where the

judge was the sole factfinder. " No person shall be subject •

r

for the same offense to be twice put in jeopardy of life or

lirab[.]" Petitioner was tried (although already plead for ten

years)to a double trial,as it was unnecessary to exposed hira^o

djgreater sentence when a maximum of the sentence was already

set. But the Court of Criminal Appeals,as the court portrait's

" [T]he Court of Criminal Appeals of Texas is the only author­

ized 'criminal court to grant habeas relief in a criminal case."

However,in petitioner's case the Criminal Court had >

( 14 of 15 )

steadily

refused

to

agreement,or

recognized

petitioner's illegal sentence or plea

grant him relief ,but the court instead " denied

without

written order"* every time petitioner filed a writ,but

if

State

the

files

any-motion it grant them as shown next.

Rodriguez v.State,470 S.W.3d.823(Tex.Crirrt.App.2015)<at-825>Appellant

was charged with ten counts of sexual assault of a child.Based on

the advice of his counsel,he declined the State's plea bargain recorrmendation a ten-year sentence and proceeded to trial.After loosing

and given ten life sentences and a twenty year sentence ha was

granted a new trial,Appellant pleaded guilty again stipulations

of guilt,the trial judge rejected the plea agreement and advised

appellant that he could withdraw his guilty plea and go to trial,or

accept^} 25 year sentence.Appellant rejected the offer,the Judge moved

recuse herself on the basis of demostrated prejudice.The judge

voluntarily recused herself,and a new judge was assigned to the

case. Appellant filed another motion to require the State to re-cffar

the ten year deal.The new judge declared that the slate was wiped

clean by the original judge's recusal but that she would accept

a new agreement if one were reached.The State offered a plea deal of

25 years and Appellant accepted,pleading guilty to five cf the

counts in exchange off' the waiver of the other five counts.The judge

accepted the deal and signed the judgment of conviction.

The direct appeals court then reversed the sentence based on Lafler,

and Frye,asking the trial court to imposed the original ten year.

The State then file "Petition for Discretionary Review"(PDR) The Co r

urt of Criminal Appeals agreed with the State<at-831>We reverse the

decision of the court of appeals.The slate was wiped clean upon

the recusal of the original trial judge and the court was entitled

to start anew.The 25-year sentence that was offered by the State,

agreed by Appellant,and accepted by the trial court is reinstated.

Petitioner

could

not agreed more with the court decision,but

Why ? can the Court do in opinion like the one above as enough

time

lapsed

and

it is time for petitioner to be vindicated.

( 15 of 15 )

REASONS FOR GRANTING THE PETITION

Petitioner

decision to continue seeking relief and vindication

are not because of his continue illegal incarceration but also

the

Texas Courts failure to address the illegal incarceration,

a<d Resolved the plea bargain agreement,which was signed,approved

,accepted,and acknowledge at the end of the plea-hearing.

The

Honorable

Teresa Hawthorne,as well as the prosecutor Ms.

Hawkins,and defense counsel Mr.Johnson acknowledge to the court

reporter

what the document reflects,as to the possible maximum

of ten years.

The Texas Court of criminal Appeals acknowledge that if it is it*

fact

a plea-bargain agreement signed and accepted by the Trial

Court,and as a matter of illegal sentence can? be attack at any

time.

MOORE v.STATE.295 S.W.3d.329(Tex.CRIM.APP.2Q09)lfe33l]As a contract once

both parties have entered knowingly and voluntarily into a plea bargain

they are bound by the terms of that agreement once it is approved

by the judge.Ad,Plea agreements may contain a wide variety of stipula­

tions [*332]and conditions that allow the state to tailor conditions

in order to reach agreement with the defendant.See e.g.ERONELLE v.STATE

.113 S.W.3d 788(Tex.App-Tyler 2003,not pet.)The only proper role

of the trial court in the plea-bargain process is advising the defend­

ant whether it will "follow or reject"the bargain between the state

and the defendant.TEX.CODE CRIM.PR0C.art.26.13(a)(2)("the court shall

inquire as to the existance of any plea barganing agreements between

the State and the defendat in the event the such agreement,the state

may not withdraw its offer.BITTERMAN v.STAE,180 S.W.3d 139,142(Tex.Crim

App.2005)(citing ORTIZv.STATE.933 S.W.2d.l02Tex.Crim.App.l996). If the

trial court rejects the plea-bargain agreement,the defendant is,as

a matter of right,allowed to withdraw his guilty plea,and the state

may then withdraw its offer.TEX.CODE CRIM.PRQC.art.26.13(a)(2)("Should

the court reject any such agreement, the defendant shall be permitted ]

( 1 of 6 )

X

to withdraw hia plea og guilty or nolo contendere".)..♦ Only the State

may offer or withdraw a plea bargalnid.Because a plea-bargain agreem­

ent is solely between the state and the defendant,only the state and

the defendant may alter the terms of the agreement; the trial court

commits error if it unilaterally adds un-negotlated terms to a pleabargain agreement. PAPILLON v.STATE.908 S.W.2d.621,624(Tex.App.BBAUMMONT 1995 no.pet)(error accurred "when [the trial court] Inserted additionall,non-negotiated terms into the negotiated plea bargain between

the State and Appellant,and then made acceptance or rejection of

said plea bargain contingent on whether or not appellant complied

with said additional,non-negotiated terms.")

In petitioners case he pleaded guilty in exchanged for 10 years

also

a fine if? was probation for $2,500/no contact w/victim/

sa,no affv(No Affirmative Finding Family Violence." .There was

no other stipulation ,or statement

within the plea bargain

document saying for any reason the judge was agreein^-^rjf?! to a

different sentence other than the 10 years circle in the plea

bargain agreement executed on the 9th day of April,2012.

Petitioner after pleading guilty,and signed the plea document,

and after the judge also signed ittdefense counsel !

,for

a PSl[presentence investigation report](citing PERKINS supra > >

738 S.W.2d.at278,),(The record clearly reflects that petitioner

/relatormade it clear to everyone that "the maximum punishment

that

[he]

would

be

giving[

] • * * would be 10 years pursuant

to the State's plea negotiation." Vol.l page 16 Reporters Reco­

rds, signed and dated April 9th 2012.)

When

petitioner reappeared in court for sentencing,the judge,

sua

aponte,set

withd rew

aside

the

punishment that been assessed and

the petitioner's maximum for ten years and assessed

twenty instead(citing Perkins at 231).

( 2 of 6 )

The

Fifth

District

more

the

true

plea

bargain

Court

of Appeals,in its opinion corrupted)

background of the case,when they replaced the

agreement

with ["Without the benefit of a plea

bargain],but as the Court on Perkins held. ("The court of appeals

have

mandamus

Court

of

jurisdiction vlrually identical to the Supreme

Texas,and the Court of Criminal Appeals[in criminal

law matters]was prescient as to what this Court would eventualy

hold

when

it

decided

the question whether the court of

appeals,in criminal cases,had authority to issue writs of mand­

amus in criminal cases.")(Perkins at 281.)

The Court in Perkins then cited on SANTOBELLQ v.NEW YORK.The i;

reason for suggesting that the trial judge should absent for

any participation during the plea barganingi^fto avoid judicial

coercion

or prejudgment of the defendant since such influence

might affect the voluntariness of the defendant's plea.At-282.

[*285]Given

what

this

court

has

stated and held regarding

specific enforcement of a valid plea bargain agreement,we find

that those decisions placed a ministerial 1,mandatory,and non­

discretionary

the

plea

duty

bargain

on

the

trial judge specifically enforce

agreement that was made by the parties and

approved by the judge. Under the law,t[the judgejhad no discr­

etion about the matter,[he or shejwas charged as a matter of law

with enforcing the plea bargain agreement that [he or shejself

to

In

case .defense counsel erred by stating that,

petitioner's

him

assessing

lesser punishment*",)

approved,subject

"petitioner changed his mind",because petitioner never did,th­

ere

is

no evidence of such mind changing,as the record does-

not suported it.

( 3 of 6 )

Petitioner is not an attorney,nor he is trying to become one

however, he does read and write several different languages,and

ha's a duly educated low-paying mechanical engineer,that in his

readings of law found the following very interested.

THE JUDGE MADE ME DO IT: EVALUATING HOW JUDICIAL EXPRESSION

IN PLEA NEGOTIATIONS MAY CONTRIBUTE TO WRONGFUL CONVICTIONS

54 Willamette L.Rev,137(2017)

[*152]While

there are many favorable aspects to having judges

participate in plea negotiations between the goverment,defense

counsel,and

that

the

the defendant,there is also the grave possibility

process

could

be abused by an incompetent defense

counsel,an

overly aggressive prosecutor,or a biased judge.For

example,in

LAFLER

federal

that

v.COOPER,the

Supreme Court considered the

habeas corpus(*153]corpus petition of Cooper,alleging

his trial counsel was ineffective in light of Strickland

v.Washington, Specifically,he argued that the prosecutor prese­

nted him with a plea bargain under which he would plead to two

of the four felony offenses listed in the indictment in excha­

nged

for

a sentence in the range of fifty-one to eighty-five

months

of imprisonment.After disccusaing the specific details

of

agreement with his trial counsel,the Lafler defendant

the

chose

to

to reject the plea bargain on the advice of counsel,and

proceed

to a jury trial. The jury convicted the defendant

on all four counts and he received a sentence that was at least 100 months

more than the sentence originally proposed by the prosecutor^.] [*158].Accor­

dingly, defense counsel and the prosecution need to place the plea agreement

under the constitutional microscope so that [tjhe proposed

;sentence iS

[fair],reasonable,and appropriate for the defendant fc£fw®1tieba4,rIt is expected

that the trial courts (whether State or Federal)would generally honor the agr­

eement

( 4 of 6 )

reached between » • • the defendant and the,. •prosecution.These agreements,accrding tp a majority of[*159]defense attorneys consulted by this author,are

seen as sacrosanct to the efficiency of the criminal justice system and are

[non]-re tractably to the criminal defendant-whose life hangs in the balance*

Therefore it is clear that the following are without question

factsj

(A),Petitioner exchanged a guilty plea,and confession

!i for ten years,although the trial judge approved and accepited the document without any specifications?

(B),The Honorable Judge did not follow the specifications of

the State Law Code of Criminal Procedure 26.13(a)(2).

(C).The Judge committed an error during sentencing when senteence carry the maximum of 10 years.

(D).Defense Counsel was [ijncompetent,and ineffective.;and

(E).The document(plea bargain agreement)was tamper with,when

someone placed an " X ’’over the plea-agreement*

TEXAS JURISPRUDENCE 3D Ed,2024

("For a fraudulent misrepresentation claim,a party must plead and prove that;

(1)a material representation was made(the " X "over the document);

(2)that was false;

(3)that was made knowingly or with reckless disregard for its truth or

falsity,(4)that was made with the intention that it be acted upon by

the party,(5)it was in fact relied upon by the other party,and (6)deroaged

the other partyJ')

In

petitioner's

plea

bargain

agreement

document,there

is

no

initials as tbrfj&ta "cross-out" the document,so he cannot said

who did it,nevertheless, it is proof that the elements of fraud

are

present,and

that

petitioner suffer unrepairable injury.

Petitioner,also points out that the cross-over is a crime under

Texas Penal Code,Sec.37.10Tampering with Governmental Record

ft

*

("A

person commits an offense if he or shet(l)knowingly makes

a

false entry,or false alterartion of,a governmental record!')

( 5 of 6 )

V

Petitioner

can

proved

with the help of the trial reporters

record that there was no other plea hearing,other than thev J

one

that

took

place

on April 9,2012;that the plea bargain

is for 10 years,according with the plea-documents,and report­

ers record on Volume one page 16,and that defense counsel was

>VT 9 incorrect .ineffective, and incompetent from begfLning

to end,and that because of counsel's failures petitioner

still incarcerated.

These are petitioner's "GROUNDS FOR GRANTING PETITION."

( 6 of 6 )

Ml

CONCLUSION

The petition for a writ of certiorari should be granted.

■espectfull j s'

[tted

p

Date: 3r

Day of April ,2024