Petition for Writ of Certiorari — Albertico C. Cruz, Petitioner v. Texas

Supreme Court briefMay 2, 2025

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FILED

MAY 0 2 2025

IN THE

SUPREME COURT OF THE UNITED STATES

ALBERTICO CORRAL CRUZ

(Your Name)

(

— PETITIONER

■

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

ALBERTIGO CORRAL CRUZ

(Your Name)

TDCJ# 02367582, 2661 FM 2054

(Address)

TENNESSEE COLONY. TEXAS 75884-5000

(City, State, Zip Code)

PRO £F. T.TTTOANTr NO PHONE OR EMAIL

(Phone Number)

QUESTION(S) PRESENTED

QUESTION ONE:

Did the Eleventh Court of Appeals, at Eastland, Texas, deny Petit ioner's Due

Process to an appeal in the normal course by ordering Petitioner to file a pro

se response pursuant to Ander's, when his appeal was not an Ander 's proceeding?

QUESTION TWO:

Did retained ^Appellate Counsel render ineffective assistance by filing an An-.',

der's Brief misguiding Petitioner to file a pro se response pursuant to Ander's

and not a brief in the normal course of an appeal, or hire new counsel. Denying

effective assistance, due process, and forfeiture of an entitled proceeding?

QUESTION THREE:

Did trial Counsel render ineffective assistance for failing to investigate, in

terview, depose, and prepare defense first witness, Ariana Hernandez, which e

elicited extraneous offense testimony, denying a fundamentally fair trial and

punishment?

QUESTION FOUR:

Did trial Counsel render ineffective assistance by failing to obj ect that the

admission of the audid recording v/as forcing Petitioner to choose one constitutional right over another, violating his constitutional rights to a fundamentally fair trial and punishment?

Page ii

LIST OF PARTIES

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 pige. A list of

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

petition is as follows:

RELATED CASES

State of Texas v. Albertico Corral Cruz, Cause No. CR55110, 441st Judicial

District Court of Midland County, Texas. (Jury Trial).

Albertico Corral Cruz v. State of Texas, 2022 Tex. App. Lexis 482 (Tex. App.—

Eastland, January 26, 2023)(Direet appeal affirmed/ retained counsel/Ander's)

In re Cruz, 2023 Tex. Crim. App. Lexis 388 (PDR Refused, June 07, 2023)

Exparte Albertico Corral Cruz, WR-96,248-01 (Tex. Crim. App. December 18, 2024)

(Writ of Habeas Corpus denied without written order).

Page iii

TABLE OF CONTENTS

CONTENTS:

iii

Cover Page...

Questions Presented...

List of Parties • • •

iii

vii

Related Cases

Table of Contents • • •

Index to Appendices

• ♦ •

it*

Table of Authorities • • •

Opinions Below

Jurisdiction • • •

Constitutional and Statutory Provisions Involved • • •

Statement of the Case...

Reasons For Granting the Petition • • •

Question One:

Did the Eleventh Court of Appeals at Eastland, Texas,

deny Petitioner's Due Process to an Appeal in the

normal course by ordering Petitioner to file a pro

se response pursuant to Ander's, when his appeal was

not an Ander s proceeding?

A. Facts surrounding the Court of Appeals order and dir

ection to Petitioner instructing him to file a pro se

response pursuant to the standard of Ander's proceeds

ures.

B. The Purpose of an Ander's Brief and the proceedings

do not apply to retained counsel.

C. The holdings of this Court, Court of Appeals of Texas

Court of Criminal Appeals of Texas, Standard pf Revie w,

and the Appellate Courts supervisory role.

Question Two:

Did retained counsel render ineffective assistance by

filing an Ander's Brief, Misguiding Petitioner to file a

pro se response pursuant to Ander's and not a brief in

the normal course of an appeal, or hire new counsel,

denying effective assistance, Due Process, and Forfeitur e

of an entitled proceeding?

Standard of Review.

A. Facts of Counsel's deficient performance leading up to

filing an Ander's Brief and improperly advising Peti

tioner to file a pro se response pursuant to Ander's

proceedings.

Page iv

TABLE OF CONTENTS

PAGE #:

CONTENTS:

B. The Supervisory Role of Appellate Courts to Properly

correct counsel, but more importantly Counsel's ineffec

tiveness for failing to properly advise his client and

his erroneous filing of an Ander's brief when the pro

ceeding was not an Ander's proceeding.

C. Petitioner has shown Counsel's performance fell below

an objective standard of reasonableness and prejudice,

Question Three:

Did trial Counsel render ineffective assistance for fail

ing to investigate, interview, depose, and prepare defense

first witness, Ariana Hernandez, which elicited extran

eous testimony, denying a fundamentally fair trial and

punishment?

Standard of Review

A. Facts leading to counsel eliciting extraneous offense

testimony from defense first witness Ariana Hernandez.

B. Counsel's failure to investigate, interview, depose, and :

prepare the witness cannot be considered part of a rea

sonable trial strategy for his failure to prevent the

elicited extraneous offense testimony, and the testi

mony bolstering the Complainant's testimony.

Question Four:

Did trial Counsel render ineffective assistance by failing

to object that the admission of the audio recording forced

Petitioner to choose one constitutional right over another,

violating his Fifth, Sixth, and Fourteenth Amendment, Due:

Process, and Constitutional rights to a fundamentally fair

trial and punishment.

Standard of Review

A. Facts surrounding the audio of interrogation that was

admitted and forced Petitioner to choose one Constitu

tional right over another, denying his constitutional

rights to a fundamentally fair trial and punishment

due to Counsel's deficient performance.

B. It is intolerable to force a defendant to choose one

Constituional right over another.

C. Statements deemed to be testimonial and non-testimon

ial.

D. Is a defendant's confession, interrogation, or interview,

deemed to be testimonial?

Page v

E. Are confessions, interrogations, and interviews

hearsay.

F. Criminal defendant's are not unavailable til he or she

exercises their Fifth Amendment right to not testify.

G. A defendant cannot be forced to choose one constitu

tional right over another due to the law of evidence.

H. Petitioner has shown Counsel's deficient performance

and prejudice.

Conclusion • • •

Proof of Service • • •

Index to Appendices • • •

Declaration of Inmate Filing. • •

vii

Attached

;

Page vi

INDEX TO APPENDICES

APPENDIX A: Judgment of Conviction, Midland County J . Texas

APPENDIX B: Counsel's Letter advising he filed an Adder's Brief.

APPENDIX C: Court of Appeals advising receipt of Ander's Brief.

APPENDIX D: Court of Appeals advising receipt of Appellant's Mo:ion for Ex

tension of time to file pro se response.

APPENDIX E: Appellate Counsel's letter advising he sent entire Clerk s

Record, Trial Transcripts, and Exhibits.

APPENDIX F: Court of Appeals advising extension of time to file pro se response to retained counsel's Ander s Brief is do Oc tober 10,

2022.

APPENDIX G: Court of Appeals advising receipt of Appellant's rebuest for the

Court to provide transcript of voir dire. August 22, ZUZZ.

APPENDIX H: Appellate Counsel advising he "inadvertently did not send voir

dire. Attached is the voir dire transcript. August [22, 2022.

APPENDIX I: Court of Appeals dismissing motion to provide voir < dire, because

counsel provided it.

APPENDIX J: Pro se Response to Counsel's Ander's Brief. October 09, 2022.

APPENDIX K: Court of Appeals receipt of pro se response. October 18, 2022.

APPENDIX L: Court of Appeals affirming trial court's judgment, and granting

Appellate Counsel's motion to withdraw. January 26, 2023.

APPENDIX M: Court of Appeals Mandate Issued. August 01, 2023.

APPENDIX N: Petition for Discretionary Review refused. June 07, 2023.

APPENDIX 0: Midland County:Bistrict^eierk, acknowledgingrreceipt" of writ of

Habeas Corpus. July 05, 2024.

APPENDIX P: State's proposed findings of fact, conclusions of law, and order.

July 10, 2024.

APPENDIX Q: Trial Court's order designating issues to be resolved. July 12,

2024.

APPENDIX R: Trial Court's order for affidavits from Appeallate Counsel, T.

Mitchell Dooley and Trial Counsel, Isaiah Jackson. August 01,

2024.

APPENDIX S: Appellant Counsel's affidavit with exhibit A. Profe ssion Services

Agreement. August 23, 2024.

APPENDIX T: Petitioner's response to Appellate Counsel's affida vit.

APPENDIX U: Trial Counsel's affidavit. August 29, 2024.

APPENDIX V: Petitioner's response to trial counsel's affidavit. September

23, 2024.

Page vii

INDEX TO APPENDICES

APPENDIX W: Trial Court's Findings of Facts, Conclusions of Law, and Order.

Court did not adopt State's Proposed Findings. December 03, 2024.

APPENDIX X: Petitioner's reply to Trial Court's Findings of Fac ts, Conclusions of Law, and Order to deny writ. December 19, 2 324.

APPENDIX Y: Texas Court of Criminal Appeals denied writ1 without written order

based on trial court's findngs. December 18, 2024.

Page viii

TABLE OF AUTHORITIES

CASES:

PAGE #:

Anders v. California, 386 U.S. 738 (1967)...

4,5,6,7,9,

10,11,13,

14,16

Buck v. Davis, 580 U.S. 1000(2017);..

21, 22

Crawford v. Washington, 541 U.S. 36 (2004) • • •

Cronic v. United States, 466 U.S. 648 (1984)...

Cruz v. State, 2023 Tex. App. Lexis 482 (Tex. App.—Eastland)...

Davis v. Washington, 547 U.S. 813 (2006)...

Douglas v. California, 372 U.S. 353 (1963)...

Ellis v. United States,,356 U.S. 674 (1958)...

Ex parte Crow, 180 S.W.3d 135 ((Tex. Crim. App. 2005). « •

27,28,30,

9, 15

Ex parte Cruz, No. WR-96, 248-01 (Tex. Crim. App. 2024) • • •

Ex parte Owens, 206 S.W73d 670 (Tex. Crim. App. 2006)...

Faretta v. California, 422 U.S. 806 (1975)...

8,15

Ifl-'-re Cruz , 2023 Tex. Crim. -App, Lexii 388 (2023)...

Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014)...

55,6,11,13,

Kentucky v. Stincer, 482 U.S. 730 (1987)...

Knotts v. State, 31 S.W.3d 821 (Tex. App.--Houst.|1lst Dist.J 2000

no pet.)...

Kyles v Whitley, 514 U.S. 419.(1995) • • •

Lee v. United States, 137 S.Ct. 1958 (2017) • • •

Martin v. Texas, 694 F.2d 423 (5th Cir. 1982)...

McCoy v. Court of App. Wis., Dist 1, 486 U.S. 429 (1988)...

McCoy v. Louisiana, 584 U.S. 414 (2017)...

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1991)...

Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006)...

Ohio v. Arkansas, 448 U.S. 56 (1980) • • •

Oldham v. State, 894 S.W.2d 561 (Tex. App.—Waco, 1995)...

Penson v. Ohio, 488 U.S. 75 (1988)...

Roe v. Flores-Ortega, 528 U.S. 470 (2000) • • •

Rock v. Arkansas, 483 U.S. 44 (1987)...

Page ix

9,15

8,15

17 ,

9,15

7.14

9.15

10,12,15,

16,17

TABLE OF AUTHORITIES

GASES:

PAGE #:

Simmons v. United States, 390 U.S. 377 (1968)...

Smith v. Robbins, 528 U.S. 259 (2000)...

Steller v. United States, 57 F.2d 627 (7th Cir. 1932) • • •

Stone v. State, 17 S.W.3d 348 (Tex. App. Corpus Christi, 2000,

pet. ref'd.)

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)...

United States v. Dominguez-Benitez, 542 U.S. 74 (2004) • • •

United States v, Lilley, 581 F.2d 182 (8th Cir. 1978)...

26,27

9,10,15,16

CODES:

Tex. Code Crim. Proc. art. 11.07

Tex. R. App. Proc. Rule 6.5

Tex. R. Evid. Rule 801(e)(2)(A)...

Fed. R. Evid. Rule 801(d)(2)(A)...

7,14

RULES:

CONSTITUTION:

U.S. Amend. IV...

U.S. Amend. V. • •

U.S. Amend. VI • • •

U.S. Amend. XIV...

26,27

3,26

3,8,12,14

OTHER:

• Christopher, B. Muller & Laird C. Kirk Patrick, Evid-, § 827

at 797 (4th ed. 2005)...

• 1 McCormick on Evid § 144, at 20 (John W. Strong, 5th ed.

1999)...

• 2 McCormick, 5th ed., supra note 55 § 246, at 96

• Roger C. Park et. al., Evid..Law § 7.07, at 274 (2nd ed.

2004)...

Page x

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:

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

the petition and is

[ ] reported at

; 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__________________________________ ___’__; or,

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

[ ] is unpublished.

|X5f For cases from state courts:

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

Appendix _X___ to the petition and is

| or,

[ ] reported at

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

[X3 is unpublished.

The opinion of the Eleventh Judicial District____________

appears at Appendix _JL___ to the petition and is

[ ] reported at_______________________________________; or,

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

[XS is unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

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

was______________________

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

[ ] A timely petition for rehearing was denied by the United £j>tates 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 certio(rari was granted

(date) on

(date)

to and including______

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 12E4(1).

fxj For cases from state courts:

The date on which the highest state court decided my case wa?i Dec. 18, 2024 .

A copy of that decision appears at Appendix _Y------[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

IXXJXAn extension of time to file the petition for a writ of certiorari was granted

(date) in

to and including May 17, 2Q25— (date) on

Application No. &id_A ^0<\----The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

Page 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED!';

U.S. Const. Amend. V: No person shall be held to answer for a capital, or other

wise infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger; nor shall any person be sub

ject for the same offence to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself ;:.ftor"v '

bfe'deprived of life, liberty, or property, without due process of 1aw;, nor shall

private property be taken for public use, without just compensation.

U.S. Const. Amend, VI: In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of tie State and

district wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature of the

accusation; to be confronted with the witnesses against him; to hive compulsory

process for obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defense.

U.S. Const. Amend. XIV, Section 1: All persons born or naturalized in the Unit

ed States, and subject to the jurisdiction therebf, are citizens of the United

States and of the State wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Page 3

STATEMENT OF THE CASE

The Petitioner was indicted in Midland County, Texas, for twc (2) counts of

Indecency with a Child by Contact. Petitioner proceeded to trial by jury and

the jury returned a verdict of guilty.:Petitioner-elected to have the Court

assess his punishment. The Court assessed fifteen (15) years on each count.

However, upon the State's motion to cumulate the sentences, the Court granted

their motion.

The Petitioner filed his motion to bring notice of appeal duej to retained

appellate counsel's failure to. communicate. .

November 15, 2021. CR, 55. Coun-

sel filed an Ander's Brief pursuant to Anders v. California, 386 U.S. 738 (1967)

even though Anders does not pertain to retained counsel. Petitioner filed his

pro se response to the Anders brief pursuant to the Court of Appeals order to

do so. The Court of Appeals affirmed the case was not an Anders proceeding and

affirmed the trial court's judgment. See Cruz v. State, 2023 Tex. App. Lexis

482 (Tex. App.—Eastland, January 26, 2023). Petitioner filed his Petition for

Discretionary Review in the Texas Court of Criminal Appeals, and the Court re

fused the petition. See In re Cruz, 2023 Tex Crim. App. Lexis 388 (June 07,

2023). Petitioner then filed his writ of habeas corpus pursuant to Tex. Code

Crim. groc. Art. 11.07 and the Court denied the writ without written order.

See Ex parte Cruz, No. WR-96, 248-01 (Tex. Crim. App. December 18, 2024).

REASONS FOR GRANTING THE PETITION

QUESTION ONE

DID THE ELEVENTH COURT OF APPEALS, AT EASTLAND, TEXAS, D1£NY

PETITIONER'S DUE PROCESS TO AN APPEAL IN THE NORMAL COURSE

BY ORDERING PETITIONER TO FILE A PRO SE RESPONSE PURSUANT TO

ANDER'S, WHEN HIS APPEAL WAS NOT AN ANDER'S PROCEEDING?

The Petitioner argues that the Court of Appeals denied Petitioner's Due Pro

cess to a protected proceeding, an appeal in the normal course, bj' the court's

Page 4

order and direction for Petitioner to file a "pro se response" pu rsuant to

Ander's v. California and Texas Ander's procedures. See Kelly v. State, 436

S.W.3d 313 (Tex. Crim. App. 2014).

A. FACTS SURROUNDING THE COURT OF APPEALS ORDER AND DIRECTION

TO PETITIONER INSTRUCTING HIM TO FILE A PRO SE RESPONSE

PURSUANT TO THE STANDARD OF ANDER'S PROCEDURES.

On October 28, 2021, Petitioner's "family" retained Manual Diaz Law Firm

to review the trial transcripts Of the case. The Petitioner never signed any

contract with the law firm, nor was he aware that the "contract" signed by fam

ily was only to review the record. Furthermore, the Petitioner ne/er received

any correspondence from Manual Diaz Law Firm prior to receiving tieir Ander's

Brief and Motion to Withdraw.

Due to Appellate Counsel's failure to comunicate with Petitioner, he was

unaware that counsel filed a motion for new trial to delay the deadline for a

notice of appeal, thus, the reason for Petitioner to bring notice of appeal to

the court pro se on November 15, 2021. The trial court re-certifiad his right

to appeal on November 19, 2021. CR, 44-50; Appendix S.

On July 07, 2022, Counsel filed an Ander's Brief and Motion to Withdraw.

In July 2022, Petitioner received counsel's letter, motion to withdraw, Ander's

Brief, and motion for access to the appellate record. The letter and Motion to

withdraw tracked the language of Ander's proceedings requiring "appointed counsel" to inform client of his: 1) right to file a "pro se response' to the An

der's brief pursuant to Anders v. Califomnia, 386 U.S. 738 (1967) and Kelly v.

State, 436 S.W.3d 313 (Tex. Crim. App. 2014);

.a 2) right to review the appel-

late record; and 3) right to file Petition for Discretionary Review.

The Court of Appeals sent an order directing Petitioner Jae had thrity (30)

days to file a "pro se response" to counsel's Ander's Brief due on August 11,

Page 5

2022. However, Petitioner could not file a response due to counsel's failure to

provide the appellate record, as is the custom when appointed counsel files an

Ander's brief in Texas. Kelly, 436 S.W.3d 313.

Petitioner filed a motion for an extension of time and to be provided with

a copy of the appellate record on July 12, 2022. Appendix D.

PetLtioner re-

ceived his extension of time up to October 10, 2022. Appendix F. Petitioner

received guilt & innocence transcripts, exhibit's, and Clerk's Record. Appendix

E. Petitioner received voir dire about 3 weeks later due to counsel not initially providing it. Appendix H.

The Petitioner filed his pro se response pursuant to the standard in Ander's

and Kelly. He raised one ground geared to this standard that only required the

Petitioner to present one arguable ground to the Court, then the Court would

appoint new counsel to brief the issue in the normal course of an appeal, and

review the record independantly. The issues would be argued in the normal course

of an appeal.

B. THE PURPOSE OF AN ANDER'S BRIEF AND THE PROCEEDINGS DO NOT

APPLY TO RETAINED COUNSEL.

The purpose of the Ander's brief is to satisfy the appellate court that the

appointed counsel's motion to withdraw is, indeed, based upon a conscientious

and thorough review of the law and facts: "the Anders brief is only the prover

bial 'tail' [while] the motion to withdraw is the 'dog.'” That being the case?

the court of appeals may not immediately grant the motion to withdraw, even

though the granting of a motion to withdraw is inevitable once an Ander's brief

has been filed. Once an Ander's brief is filed in Texas, there are: two possible

outcomes, both of which involve eventually granting Original appointed counsel's

motion to withdraw. Either the appellate court confirms that there: are no nonfrivolous grounds for appeal, thus extinguishing the appellant's right to counPage 6

sel, and grants the motion to withdraw, or the appellate court fi.nds that there

are plausible grounds for appeal, in which case the appellate court still grants

the motion to withdraw, but remands the cause to the trial court for appointment

of new appellate counsel. Kelly v. State, 436 S.W.3d 313, 318-19 (Tex. Crim.

App. 2014)(Quoting Meza v. State, 206 S.W.3d 684, 689. (Tex. Crim. App. 2006)

(citing Anders, 386 U.S. 738 (1967)).

However, the above Ander's requirements do not apply to any counsel that

is retained. There is a completely different standard when "retained Counsel"

files a motion to withdraw. When retained Counsel files a motion to withdraw,

the Petitioner has the right to: 1) hire new counsel; or 2) file a pro se Appel

late Brief in the normal course of an appeal. Therefore, Petitiorer was denied

Due Process to a protected proceeding and this is where the Court of Appeals

erred. Knotts v. State, 31 S.W.3d 821, 822 (Tex. App.—Houst. [1st Dist.] 2000,

no pet.).

C. THE HOLDINGS OF THIS COURT, COURT OF APPEALS OF TEXAS,

COURT OF CRIMINAL APPEALS OF TEXAS, STANDARD OF REVIEW,

AND THE APPELLATE COURTS SUPERVISORY ROLE.

The Court's have several clearly established precedents that support Peti

tioner's position. The appellate courts have a supervisory role in guaranteeing

representation by counsel, retained counsel is allowed to withdraw only "upon

such terms and conditions as may deemed appropriate by the appellate court."

Tex. R. App. Proc. 6.5; Oldham v. State, 894 S.W.2d 561, 562 (Tex. App.—Waco

1995)(duties of appointed counsel and appellate court pursuant to Anders, 386

U.S. 738 (1967), not applicable to retained counsel.). To fulfill this minimum

obligation, retained appellate counsel's motion to withdraw must be accompained

by a showing that a copy of the motion was furnished to the convicted defendant

along with information concerning impending deadlines. In addition, the retained

Page 7

appellate counsel who wishes to withdraw must provide the appropriate appellate

court with the last known address and phone number for the appellant that counsel

represents.

The Court here,

failed to strike appellate counsel's Ander's Brief and ad

vise Petitioner he had the right to: 1) hire new counsel; or 2) file-a pro se

appellate brief in the normal course of an appeal, and that the proceeding was

not an Ander's proceeding. The Court's failure is no different than counsel

failing to properly advise a client. The failure of appellate counsel to "follow

these requirements" (advising client of option to

file PDR, etc.) is meaured

by a Sixth Amendment standard for prejudice that is more "limited" than the

ordinary standard for ineffective assistance of counsel: "the appellant need not

show that the proceeding that was forfeited due to Counsel's ineffectiveness

would have resulted in a favorable outcome, rather, it is only required that the

appellant show that he or she was deprived of that proceeding and that the appel

lant would have availed himself of the proceeding had the conduct of Cousnel [the

court] not caused a forfeiture. Ex parte Crow, 180 S.W.3d 135, 137-38 (Tex. Crim.

App. 2005).

The Texas Court of Appeals held that "there is no principled reason" that

these standards for Counsel and determining prejudice for ineffective assistance

should not apply equally to an appellant whose attorney files a "no merit"

Ander's brief. Ex parte Owens, 206 S.W.3d 670-74 (Tex. Crim. App. 2006). The

Court of Appeals failure to properly advise Petitioner his appeal was not an

Ander's proceeding and to strike Appellate Counsel's (retained) brief is no;

different than Counsel failing to properly advise his client.

This Court in Smith v. Robbins held, "the two services of appeillate counsel

are on point here. Appellate Counsel examines the trial record with an advocates

Page 8

eye, identifying and weighing potential issues for appeal. This i s review not

by a dispassionate legal mind but by a committed representive, pledged to his

client's interests, primed to attack the conviction on any arguable ground the

record may reveal. If counsel's review reveals arguable trial eri or, he prepares

and subnits a brief on the merits and argues the appeal." M., 52 8 U.S. 259,

292-93 (2000).

Indeed, a defendant's right to the first point is, a partisan scrutiny of

the record and assessment of potential issues, goes to the irreducible core of

the lawyer's obligation to a litigant in an adversary system, anc we have consis

tently held it is essential to substantial equality of representation by coun

sel. The paramount importance of vigorous representation follows from the nat

ure of our adversarial system of justice. Penson v. Ohio, 488 U.S. 75, 84

(1988); see e.g., Ellis v. United States, 356 U.S. 674, 675 (195^); Douglas v.

California

372 U.S. 353, 357-58 (1963); McCoy v. Court of App. of Wis • 9 Dist.

1, 486 U.S

429, 438 (1988). The right is unqualified when a defendant has re

tained counsel, and I can imagine no reason that it should not be: so when counsel

has been anointed. In Petitioner's case, appellate! counsel was“-cnly retained

by "family" to review the appellate record, according to counsel s affidavit.

Appendix S.

Moreover, because the right to the second point is, merits breifing, it is

not similarly unqualified. The limitation on the right to a merits brief is that

no one has a right to a wholly frivolous appeal. When a defendant has retained

counsel, the defendant is entitled to file a pro se appellate brief in the normal course of an appeal or hire new counsel, upon retained counsel's motion to

withdraw.

This Court in Anders v. California addressed the problem as ' confronted"

Page 9

by assigned/appointed counsel, though in theory it can be equally acute when

counsel is retained. It is unlikely to show up in practice, however. Paying

clients generally can fire a lawyer expressing unsatisfying conclusions and

will often find a replacement with a keener eye for arguable issues or a duller,

nose for frivolous ones. As a practical matter, the states may find it too dificult or costly to prevent monied Petitioner's from wasting their own resources,

and those of the judicial system, by bringing frivolous appeals. This does not

mean, however, that the states are obligated to subsidize such efforts by indi

gents. Smith, 528 U.S. 259, FN 2 (2000).

The Court of Appeals ordered Petitioner to file a pro se respinse pursuant

to Adder's even though the Court knew the proceeding was not an Aider's proceed

ing. See Court's Op. at page 3. The Court erred and denied Petitioner's Due Pro

cess by failing to advise him his appeal was not an Adder's proceiing and he

had the right to: 1) hire new counsel; or 2) file a pro se appellate brief in

the normal course of an appeal. Instead, the Court lead Petitioner into believing

he was filing a pro se response pursuant to the Ander's standards

and this is

what the Petitioner did. See GOA Op. Pgs. 1-3. Appendix C, D, F, (fc, I, J, K, L,

AND M.

This Court has held, "the likelihood of a better outcome from a waived or

forfeited proceeding is not the correct reliability standard because 'we cannot

accord any presumption of reliability' to judicial proceedings that never took

place." Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)(citing Smith v. Robbins,

528 U.S. at 286).

Taken together, the facts and record, and authority above, this Honorable

Court must grant cer :iorari and decide the: issues above.

Page 10

QUESTION TWO

DID RETAINED APPELLATE COUNSEL RENDER INEFFECTIVE ASSISTANCE

BY FILING AN ANDER'S BRIEF, MISGUIDING PETITIONER TO FILE A

PRO SE RESPONSE PURSUANT TO ANDER'S AND NOT A BRIEF IN THE

NORMAL COURSE OF AN APPEAL, OR HIRE NEW COUNSEL, DENYING

EFFECTIVE ASSISTANCE, DUE PROCESS, AND FORFEITURE OF AN

ENTITLED PROCEEDING?

Appellate Counsel (retained) rendered ineffective assistance by filing an

Ander's brief, that misguided Petitioner to file a pro se response pursuant to

the standard set in Anders v. California, 386 U.S. 738 (1967) and Kelly v.

State, 436 S.W.3d 313 (Tex. Crim. App. 2014), when counsel should have advised

Petitioner he could: 1) hire new counsel; or 2) file a pro se "brief" in the

normal course of an appeal. Therefore, counsel's performance fell below an

objective standard of reasonableness when he improperly advise Petitioner to

file a pro se response to Ander's and filed an Ander's brief and simply a motion

to withdraw. Counsel's error caused the Petitioner's appeal in this normal course

to be waived/forfeited, resulting in prejudice. Strickland v. Wasliington, 466

U.S. 668, 688-94 (1984).

STANDARD OF REVIEW

The Court set the standard for ineffective assistance of counsel in Strickland. The Court held to show a claim of ineffective assistance, there must be

a showing that: 1) Counsel's performance fell below an objective standard of

reasonableness; and 2) but for counsel's error, the result of the proceeding

would have been different, or the result cannot be held to be a reliable result

rendering the trial and/or proceeding fundamentally unfair. Id., ^-66 U.S. 68894. (1984).

The failure of retained appellate counsel to properly advise his client is

Page 11

measured by a Sixth Amendment standard of prejudice that is more limited than

the ordinary standard for;ineffective assistance of counsel: "the appellant

need not show that the proceeding that was forfeited due to counsel's ineffec

tiveness would've resulted in a favorable outcome, rather, it is only required

that the appellant show that he or she would've availed himself of the proceed

ing had the conduct of counsel not caused a forfeiture." The Court has held

that "there is no principled reason" that these standards for counsel and de

termining prejudice for ineffective assistance should not apply equally to an

appellant whose attorney files a "no merit" Ander's brief. Roe v. Flores-Ortega,

528 U.S. 470, 484 (2000).

A. FACTS OF COUNSEL'S DEFICIENT PERFORMANCE LEADING UP Tp 11

FILING AN ANDER'S BRIEF AND IMPROPERLY ADVISING PETI

TIONER TO FILE A PRO SE RESPONSE PURSUANT TO ANDER'S

PROCEEDINGS.

Petitioner's family retained Manual Diaz Law Firm to represent him during

his direct appeal. However, Petitioner never signed any agreement with the law

firm, their agreement was with the family member that retained there services.

Appellate Counsel filed a motion for a new trial on October 28, 2021, to delay

the deadline to file a notice of appeal. This was due to the agreement signed

between Petitioner's family member and the law firm was only to review the .

appellate record for error, and any actual appeal would cost a significant fee.

However, Petitioner brought a motion to bring notice of appeal on November

15, 2021, due to the law firm never corresponding with the Petitioner about the

delay tactic of their Motion for New Trial. Truly, Petitioner received his first

communication from the lav; firm when he received counsel's motion to withdraw

and Ander's brief. The trial Court re-certified Petitioner's right to appeal.

See Trial Court's Clerk's Record.

Page 12

On July 11, 2022, Petitioner received his first communication from Manual

Diaz Law Firm, which, included their motion to withdraw, Ander's Brief, and pro

se motion for access to the appellate record to be filed in the (hurt of Ap

peals. Counsel's letter and motion tracked the language of Ander1s proceedings

requiring appointed counsel to inform appellant of his: 1) right to file a "pro

se response" to the Ander's Brief pursuant to Anders v. California, 386 U.S.

738 (1967) and Kelly v,. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); 2)

right to review the appellate record;, and 3) right to file a pro se petition

for discretionary review.

The Court of Appeals sent an order, directing Petitioner that he had thirty

(30) days to file a "pro se ^response" to counsel's Ander's brief due on August

11, 2022. Appendix C. However, Petitioner could not file a response due to

Counsel failing to provide a copy of the appellate record with his motion to

withdraw and Ander's brief. Petitioner filed a motion for access to the record

and an extension of time to file his response. Appendix D. The Petitioner re

ceived an extension to October 10, 2022. Appendix F. Petitioner received the

record from counsel except the vior dire. Appendix E. About three (3) weeks

later he received the voir dire. Appendix H.

The Petitioner filed a pro se response pursuant to the standards in Ander's

and Kelly as directed by the Court and appellate counsel. Petitioner raised

one ground geared to this standard that only required Petitioner to present one

arguable issue to the court, then the court would appoint new counsel to brief

the issue and review the record. Further, the issue[s] would be argued in the

normal course of an appeal. Id., 386 U.S. 738; 436 S.W 313.

Moreover, the provision's in Ander's and Kelly do not apply to retained

Counsel. When retained Counsel believes the appeal has no merit, he is required

to file a motion to withdraw, and to inform client he has the right to: 1) hire

Page 13

new counsel to perfect the appeal; or 2) file a '‘pro se Brief" in the normal

course of an appeal. Due to counsel's error, the Petitioner was denied his

due process right to an appeal in the normal course by either hiring new counsel

or proceeding pro se in the normal course of an appeal.

B. THE SUPERVISORY ROLE OF APPELLATE COURTS TO PROPERLY COR

RECT COUNSEL, BUT MORE IMPORTANTLY COUNSEL'S INEFFEC

TIVENESS FOR FAILING TO PROPERLY ADVISE HIS CLIENT AND

HIS ERRONEOUS? FILING OF AN ANDER'S BRIEF WHEN THE PRO

CEEDING WAS NOT AN ANDER'S PROCEEDING.

Truly, Appellate Courts have a supervisory role in guaranteeing represen

tation by counsel, retained counsel is allowed to withdraw only "upon such terms

and conditions as may be deemed appropriate by the appellate court." Tex. R.

App. Proc. Rule 6.5; Oldham v. State, 894 S.W.2d 561, 562 (Tex. App.—Waco

1995)(duties of appointed counsel and appellate court under Anders v. Califor

nia, 386 U.S. 738 (1967), not applicable to retained counsel.). To fulfill

this minimum requirement, retained counsel's motion to withdraw must be accom

panied by a showing that a copy of the motion was furnished to the convicted

defendant along with information concerning impending deadlines. In addition,

retained counsel who wishes to withdraw must provide the appropriate court

with the last known address and phone number for the appellant that counsel

represents..

The failure of appellate counsel to "follow these requirements" (advising

client of option to file PDR etc.) is measured by a Sixth Amendment standard

for prejudice that is;more "limited" than the ordinary standard for ineffec

tive assistance of counsel; the appellant need not show that the proceeding

that was forfeited due to Counsel's poor performance would've resulted in a

favorable outcome, rather, it is only required that the appellant show that he

or she was deprived of that proceeding and that the appellant woild've availed

Page 14

himself of the proceeding had conduct of counsel not caused a forfeiture. Ex

parte Crow. 180 S.W.3d 135, 137-38 (Tex. Crim. App. 2005). The Texas Court of

Criminal Appeals held, "there is no principled reason" that these standards

for counsel and determing prejudice for ineffective assistance should not apply

equally to an appellant whose attorney files a "no merit" Ander's: brief. Ex

parte Owens, 206 S.W.3d 670, 674 (Tex. Crim. App. 2006)(Quoting hoe v. FloresOrtega, 528 U.S. 470, 484 (2000).

However, this Court in Smith v. Robbins held, "appellate counsel examines

the trial record with an advocate's eye, identifying and weighing potential

issues for appeal. This is review, not by a dispassionate legal mind but by a

committed representative, pledge to his client's interests, primed to attack

the conviction on any ground the record may reveal [this is true regardless of

the heinousness of the crime or the financial situation of defendant]. Id.,

528 U.S. 259, 292-53 (2000). If Counsel's review reveals arguable trial error,

he prepares and submits a brief on the merits and argues the appeal.

A defendants right to the first point is, a partisan scrutiny of the record

and assessment of potential issues, goes to the irreducible core of the law

yer's obligation to a litigant in an adversary system, and we have consistently

held it is essential to substantial equality of representation by counsel.

"The paramount importance of vigorous representation follows from the nature of

our adversarial system of justice." Penson v. Ohio, 488 U.S. 75, 34 (1988); See

e.g., Ellis v. United States, 356 U.S. 674, 675 (1958); Douglas v. California,

372 U.S. 353, 357-58 (1963); McCoy v. Court of App. of Wis • » Pist. 1, 486 U.S.

429, 438 (1988). The right is unqualified when a defendant has retained coun

sel, and I can imagine no reason that it should not be so when counsel has been

appointed. Id., at 292-93.

Page 15

A defendants right to the second point is merits briefing, and is not sim

ilarly unqualified. The limitation on the right to a merits brief is that no

one has a right to a wholly frivolous appeal. However, when a defendant has

retained counsel, the defendant has the right to: 1) hire new counsel; or 2)

file a pro se brief in the normal course of an appeal and proceed in the self

representation status. Id.

This Court's clearly established prejudice standard in several precedents

held, "the likelihood of a better outcome from a waived or forfeited proceeding

is not the correct prejudice standard because 'we cannot accord any presump

tion of reliability' to judicial proceedings that never took place." Roe v.

Flores-Ortega, 528 U.S. 470, 483 (2000)(citing Simth v. Robbins, 528 U.S. 259,

286 (2000). In those circumstances the different outcome question may be relevant

to the extent that it sheds light on whether the deficient performance really

did affect the defendant's decision making, but, it is not the measure of pre

judice. In the Petitioner's case, his decision was made by Counsel's advise

in his letter and ultimately the Court of Appeals order based on Counsel's

poor performance, directing him to file a "pro se response" purstant to Anders

v. California and Kelly v. State. 387 U.S. 738; 436 S.W.313.

C. PETITIONER HAS SHOWN COUNSEL'S PERFORMANCE FELL BELOW AN

OBJECTIVE STANDARD OF REASONABLENESS AND PREJUDICE.

The Petitioner has shown deficient performance by counsel and prejudice.

As this Court held in Strickland, "prejudice may be reasoned in one of two ways:

'a reasonable probability of a different outcome or a reasonable probability of

a different decision by the defendant.'" Id., at 688-94. Choosing between the

two depends on the possible result of the deficient performance. Id. For example,

if the deficient performance pertained to a guilty verdict, then prejudice

would depend on "a reasonable probability that, absent the error[s], the factPage 16

finder would've had a reasonable doubt respecting guilt." Strickland, 466 U.S.

at 695. If the deficient performance pertained to punishment, then prejudice

would depend on a Reasonable probability that the sentencer would've assessed

a more lenient punishment absent the error[s]. Id. But if the deficient per

formance might havi cause the defendant to waive a proceeding he was otherwise

entitled to, then a reasonable probability that the deficient performance caused

the waiver/forfeiture fulfills the prejudice requirement. Lee v. United States,

137 S.Ct. 1958, 1965 (2017).

Indeed, the possibility of a different outcome is the wrong prejudice stan

dard in Petitioner' s:-caser:lhe different-outcome question is relevant only to

the extent that it sheds light on whether the deficient performance affected

the Petitioner's decision making. Roe v. Flores-Ortega, 528 U.S. at 486.

Appellate Counsel did not communicate with Petitioner whatsoever before he

filed an Adder's brief. Counsel failed to ask Petitioner how he wished.! to ..pro

ceed and this denied the Petitioner to be the master of his appeal which is no

different than being the master of defense during trial. The Petitioner would*

have hire new counsel or proceeded in the pro se status (self-representation)

and filed an appellate brief in the normal course of an appeal had he been ad

vised that the proceeding was not an Ander's proceeding. McCoy v. Louisiana,

584 U.S. 414 (2018); Faretta v. California, 422 U.S. 806 (1975). Further, the

H.H. Coffield Unit Mailroom Supervisor will provide this court with an affidavit

stating that Petitioner did not receive any mail from Manual Diaz Law Firm

prior to July 12, 2022.

Appellate Counsel ' states in his affidavit that: "During the representa

tion of Mr. Cruz, it became apparent to Affiant that the family that was paying

the legal bills did not have a lot of money as it was difficult for Affiant to

Page 17

get the money from the family for the transcripts. Knowing that the family's

financial situation was tight, even though Affiant was now flung into Appellate

court unwittingly by Mr. Cruz's notice of appeal, Affiant did not want to ::

charge the family any additional money (a retainer for an actual appeal would

be substantially higher than that contained in the agreement between the parties)[Petitioner was never a party to any agreement] until such t:Lme as affiant

could determine from his review whether there was actually a basis for an ap~peal.” Appellate Counsel, basically states he filed an Ander's brief based on

the assumption that "the family paying the bills did not have a iot of money

and didn't care what the Petitioner wished to do.” Appendix S, Pg. 4-5.

Even though, the merits and outcome of Petitioner filing an Appellate Brief

in the normal course of an appeal is irrelevant, Petitioner would've raised

the following issues on appeal: 1) sufficiency of the evidence in count 1; 2)

Petitioner'was 'denied Dae Process, Fifth Amendment, Fourteenth Amendment, and

fundamental fair trial rights by forcing him to choose one constitutional right

over another by the admission of the audio recording; 3) Ineffective Assistance

of Counsel for failing to properly object to the admission of the audio record

ing that forced Petitioner to choose one constitutional right over another by

forcing him to testify on his behalf; 4) Ineffective Assistance cf Counsel

for eliciting testimony of an sexual extraneous offense by Complainant's sis

ter (defense 1st witness) due to Counsel's complete failure to investigate, in

terview, depose, and prepare the witness; If any doubt remained with the jury

about guilty or not-guilty, there minds were sealed here.

Moreover, the ultimate decision on the advisability of an appeal rests with

the defendant. If the defendant wishes to appeal despite the advioe of retained

Page 18

Counsel to forgo the appeal, retained counsel should decide whether to continue

representation. If the decision is made to withdraw, Counsel should ensure that

the defendant has retained other competent counsel or know how to effectuate

the appeal. See Martin v. Texas, 694 F.2d 423, 426 (5th Cir. 1982)(denial of

effective assistance when counsel fails to advise appellant of appellate rights

and to implement them.). Obviously, retained counsel failed to ensure that the

Petitioner knew that he was to file an "appellate brief" in the normal course

of an appeal or hire new counsel. Furthermore, counsel failed to advise Peti

tioner that his appeal was not an Ander's proceeding.

Taken together, the facts/record, and appendix volume with the authority

above, the Petitioner has shown a clear conflict among the State courts with

this Court's authority and even the Fifth Circuit Court of Appeals authority.

Therefore, there is not a member or solictor general of this Court that could

rationally decide that the issue above is not worthy of granting certiorari.

This ‘. Court must GRANT certiorari.:

■:

•

QUESTION THREE

DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE FOR FALLING

TO INVESTIGATE, INTERVIEW, DEPOSE, AND PREPARE DEFENSE FIRST

WITNESS, ARIANA HERNANDEZ, WHICH ELICITED EXTRANEOUS OFEENSE

TESTIMONY, DENYING A FUNDAMENTALLY FAIR TRIAL AND PUNISHMENT?

Trial Counsel's performance fell below an objective standard of reasonable

ness by his failure to investigate, interview, depose, and prepare defense first

witness, Ariana Hernandez, the Complainant's older sister. Due to Counsel's

deficient performance he elicited testimony of extraneous offense in a sexual

nature that: "Petitioner put his hand up her shirt; touched her sister; and she

believes her sister." This was a fatal blow to Petitioner's defense at this

point, and coupled with the unconstitutional admission of the audio recording,

Page 19

it was "check mate." Truly, there was no way to overcome the prejudice to his

defense, because of counsel's deficient performance the end result was a funda

mentally unfair trial and punishment proceeding. See Strickland, 466 U.S. 668,

688-95 (1984).

STANDARD OF REVIEW

This Court set this standard in Strickland v. Washington. To prove a claim

of ineffective assistance of counsel, a Petitioner must show: 1) counsel's

performance fell below an objective standard of reasonableness; and 2) but,

for counsel's error, there is a reasonable probability that the outcome would

have been different or the result cannot be held to be reliable rendering the

trial and/or punishment1 "fundamentally unfair. Id., 466 U.S. 668, 688-95.

A. FACTS LEADING TO COUNSEL ELICITING EXTRANEOUS OFFENSE

TESTIMONY FROM DEFENSE FIRST WITNESS ARIANA HERNANDEZ

Trial, Counsel rendered ineffective assistance to a fundaments! degree, when

his performance fell below an objective standard of reasonableness by his fail

ure to investigate, interview, depose, and prepare the defense first witness,

Ariana Hernandez. Counsel's complete failure caused him to "not know" that the

witness was going to make allegations of inappropriate touching ty Petitioner,

that he "put his hand up her shirt and touched her breasts," "touched her

sister," and that "she believes her sister." Ariana Hernandez was the defense

first witness in guilt-innocence. Ms. Hernandez testified that she was sixteen

years old and would be seventeen soon. She remebered the movie "It," the clown

movie. It wasn't a special day. It was just like the first time that he [Peti

tioner] ~had! touched me and my sister.KR3, 135-40. On cross-examination, Ariana

identified the Petitioner as the person that put his hand up her shirt. And

she "believes" her sister. RR3, 140. Counsel was constitutionally ineffective

to a fundamental degree for not doing the minimum that any reasonable attorney

Page 20

would to prepare a witness, and most importantly to know what the witness is

going to testify to.

The result of counsel's failure was a denial of the advocacy counsel is to

a criminal defendant. This was a blow to the defense and Petitioner. There was

absolutely no way to get the testimony out of the minds of the jury. There is

not any jury instruction in the world that would actually convince a jury to

disregard the extraneous offense testimony. Counsel never requested for any

curative instruction. The defense case-in-chief was essentially ever at this

point. One could spy that this error compares to a Cronic, claim. The pre

judice was so severe that it was impossible to overcome.

B. COUNSEL'S FAILURE TO INVESTIGATE, INTERVIEW, DEPOSE, AND

PREPARE THE WITNESS CANNOT BE CONSIDERED PART OF A REA

SONABLE TRIAL STRATEGY FOR HIS FAILURE TO PREVENT THE

ELICITED EXTRANEOUS OFFENSE TESTIMONY, AND THE TESTIMONY

BOLSTERING THE COMPLAINANT'S TESTIMONY

This Court in Buck v. Davis, found Counsel to be ineffective for eliciting

testimony that, Buck's race was "competent evidence of an increased probability

of future violence." Id., 580 U.S. 100 (2017).

At trial, Buck"s counsel, despite knowing Dr. Quijano's view that Buck's

race was competent evidence of an increased probability of future violence, de

fense counsel called Dr. Quijano to the stand and asked him to discuss the

"statistical factors," he had "looked at in regards to this case. 'Id., at

145a-146a. Dr. Quijano responded that certain factors were "know[n] to predict

future1 dangerousness," and consistent with his report, identified race as one

of them. Id., at 146a. "Its a bad commentary," he testified, "tha-; minorities,

hispanics, and black people, are over represented in the criminal justice sys

tem." Ibid. Through further questioning, counsel elicited testimony concerning

factors Dr. Quijano thought favorable to Buck, as well as his ultimate opinion

Page 21

that buck was unlikely to pose a danger in the future. At the close of Dr.

Quijano's testimony, his report was admitted into evidence. Id., at 150a-152a.

The Fifth Circuit Court of Appeals vacated the judgment in regards to Buck's

counsel's ineffective assistance at the punishment phase. Buck v Davis, 865

F.3d 215 (5th Cir. 2017).

In Petitioner's case, trial counsel elicited testimony from the defense

first witness during guilt-innocence that, Petitioner "put his hand up her

shirt and touched her breasts, touched her sister, and that she believs her

sister that he rubbed her vagina with his hand and fingers, and nibbed his

erect penis against her butt." The alleged touching was to have occurred over

the clothes. KR3, 135-40. The elicited testimony here is much more prejudicial

than the testimony elicited in Buck's punishment phase. RR3, 135-40; Buck, 580

U.S. at 104-07.

The Court of Appeals of Texas in Stone v. State held, "we hold that under

the facts of this case, Counsel's decision to elicit testimony regarding the

prior murder conviction cannot be considered part of reasonable trial strat

i’’

egy. We believe that where, as here the record affirmatively demonstrates that

counsel took some action in defending his client that no reasonably competent

attorney could have believed constituted sound trial strategy, the defendant

has shown he received ineffective assistance of counsel. We hold, therefore,

that counsel's performance in eliciting that testimony was deficient repre

sentation that fell below the objective standard of reasonablenes 5." Id., 17

S.W.3d 348, 353 (Tex. App.—Corpus Christ!, 2000, pet ref'd). See Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); McFarland v. State, 928 S.W.

2d 482, 500 (Tex. Crim. App. 1996).

Evidence of extraneous offenses is inherently prejudicial and harms a

)age 22

defendant, in part because it forces the defendant to defend against charges

that are not part of the present prosecution and also because it encourages

the jury to convict on bad character instead of proof of the specific crime

charged. Here

the outcome of the trial essentially depended on tae jury's

evaluation of the credibility of Petitioner and his accuser, whosle testimony

was significantly corroborated by Ariana's testimony about her own similar

encounter with Petitioner. Ariana's testimony therefore harmed ths defense

by diminshing Petitioner's credibility and bolstering the Complainant's test

imony about the abuse. Furthermore, Ariana's. account of her encounter with

Petitioner prevaded the trial and defense, such that trial counsel's error had

a significant impact on the representation as a whole. RR3, 135-40.

When viewed in the context of the entire record, counsel's deficient per

formance undermined Petitioner's credibility which was at the vary heart of

his defense after being forced to testify due to the admission of the audio

that forced him to choose one constitutional right over another. f!he course of

conduct undertaken by trial counsel cannot be considered sound tr:.al strategy.

Therefore, counsel's deficient performance is sufficient to undermine this

court's confidence in the verdict. Strickland, 466 U.S. at 694.

Petitioner's trial counsel's performance was deficient and the: harm to the

defense was fatal. Petitioner's defense and case-in-chief was absolutely over.

The damage was done and he was convicted before the trial ended. Taken together,

this Court should grant certiorari.

Page 23

QUESTION FOUR

DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE BY FAILING

TO OBJECT THAT THE ADMISSION OF THE AUDIO RECORDING FORCED

PETITIONER TO CHOOSE ONE CONSTITUTIONAL RIGHT OVER ANOTHER,

VIOLATING HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT, )UE

PROCESS, AND CONSTITUTIONAL RIGHTS TO A FUNDAMENTALLY FAIR

TRIAL AND PUNISHMENT?

The Petitioner argues, that trial counsel's performance fell below an objective standard of reasonableness by his failure to object to the fact that

"the admission of the audio recording was forcing Petitioner to cjioose one

constitutional right over another." RR3, 101-14. Cousnel's error forced Petitioner to testify, because he was the only person that could put context with

this audio recording, when their was absolutely no wrong doing admitted.

STANDARD OF REVIEW

This Court set the standard in Strickland v. Washington and held to prove

a claim of ineffective assistance of counsel, a Petitioner must siiow that: 1)

Counsel's performance fell below an objective standard of reasona Dieness; and

2) but for Counsel's deficient performance there is a reasonable probability

that the outcome would have been different or the result cannot bs held to be

reliable, rendering the trial and/or punishment fundamentally unfair. Id. 466

U.S. 668, 687-95 (1987).

A. FACTS SURROUNDING THE AUDIO OF INTERROGATION THAT WAS

ADMITTED AND FORCED PETITIONER TO CHOOSE ONE GONSTI TUTIONAL RIGHT OVER ANOTHER, DENY HIS CONSTITUTIONAL

RIGHTS TO A FUNDAMENTALLY FAIR TRIAL AND PUNISHMNET

DUE TO COUNSEL'S DEFICIENT PERFORMANCE.

The Pe titioner was arrested on May 01, 202Q„ and booked into the Midland

County Jail . On May 01, 2020, Detective Edelmira Subia, (MCSD) was notified

Petitioner was in custody. Due to COVID-19, Det. Subia had to makfe special

Page 24

arrangements to interview Petitioner. On May 04, 2020, during the interview the

Petitioner never admitted to any wrong doing or crimial offense[s]. KR3, 100.

Det. Subia was the state's last witness in their case-in-chief. T le audio

recording is State's Exhibit #6.

Trial Counsel objected to the admission of the audio recordi ng under the

hearsay rule and Fifth amendment violations. Counsel admitted he dad reviewed

the recording and there was no

admission of any wrong doing. Cou nsel believed

the recording was not admissible due to Petitioner never admitting to any

wrong doing or criminal_offense[s].

However, counsel never made an objection that this recording was forcing

Petitioner to take the stand and testify, in turn, waiving his Fi fth Amendment.

The state made the move to admit the audio recording to force Pet itioner to

testify because the Petitioner was the only person that could put context with

his statements in the recording.

Indeed, this admission was the very reason why defense couns el told Petitioner: "you have no choice but to get on the stand and testify t d the context

of the recording." The admission of this forced Petitioner to cho sse one Constituional right over another, and forgo his Fifth Amendment right to not test

ify on his own behalf.

B. IT IS INTOLERABLE TO FORCE A DEFENDANT TO CHOOSE ONE

CONSTITUTIONAL RIGHT OVER ANOTHER.

This. Court held in Sinmons v« United States that:

The rule adopted by

the courts below does not merely impose upon a defendant a condition which may

defer him from asserting a Fourth Amendment objection — it imposes a condition

of a kind to which this court has always been peculiarly sensitive. For a De

fendant who wishes to establish standing must do so at the risk that the

words which he utters may later be used to incriminate him. Those courts which

Page 25

have allowed the admission of testimony given to establish standing have rea

soned that there is no violation of the Fifth Amendment's self-incrimination

clause because the testimony was voluntary. Steller v« United Sta tes, 57 F.2d

627. As an abstract matter, this may well be true. A defendant is "compelled"

to testify in support of a motion to suppress only in the sense that if he

refrains from testifying he will have to forgo a benefit, and testimony is not

always involuntary as a matter of law simply because it is given to obtain a

benefit. v

However, the assumption which underlies this reasoning is that the defen

dant has a choice: he may refuse to testify and give up the benefit. Where this

assumption is applied to a situation in which the "benefit" to be gained is

that afforded by another provision of the Bill of Rights, an undeniable tens

ion is created. Thus, in Simmons, Garrett was obliged either to give up what

he believed, with advise of counsel, to be a valid Fourth Amendment claim or,

in legal effect, to waive his Fifth Amendment privilege against self-incrimin

ation. In these circumstances, we find it intolerable that one constitutional

right should have to be surrendered in'order to assert another. Id , 390 U.S.

377, 393-94 (1968).

This Court in Kentucky v. Stincer held that, "this court has on occasion

held that a forced choice between two fundamental constitutional guarantees is

untenable. Id., 482 U.S. 730, 753 (1987)(quoting Simmons, 390 U.S . 377,, 394

(1968))(Defendant's testimony in support of motion to suppress evidence under

the Fourth Amendment may not, under the Fifth Amendment be admitted over an

objection at trial as evidence of defendant's guilt.). A trial according to

Due Process of Law is a trial according to the "law of the Land"—the law as

enacted by the Constitution or the Legislative Branch of Government, and not

Page 26

"laws" formulated by the Courts according to the "totality" of the circum

stances." Simmons, 390 U.S. at 396.

C. STATEMENTS DEEMED TO BE TESTIMONIAL AND NON-TESTIMONIAL

This Court has clearly explained what statements constitute to be testi

monial and non-testimonial. Whether a particluar out-of-court sta tement is

testimonial is a question of law.

The primary focus in determining the threshold issue of whether a hearsay

statement is "testimonial" is upon the objective purpose of the interview or

interrogation, not upon the defendant's expectations. Davis v. Washington, 547

U.S. 813, 822-23 (2006). A statement is more likely to be testimonial if the

person who heard, recorded, and produced the out-of-court statement at trial

is a government officer. In Petitioner's case, the person who heard, recorded,

and produced the audio was a Midland County Sheriff Detective.

D. IS A DEFENDANT'S CONFESSION, INTERROGATION, OR INTERVIEW

DEEMED TO BE TESTIMONIAL?

This Court's decision in Crawford v. Washington only applies to "testimo

nial" out-of-court statements, the "comprehensive definition," of which the

Court intentionally left to be worked out in future cases. M., 541 U.S. 36,

38 42004). Nonetheless, the Court made it clear that a statement made in re

sponse to police interrogation falls squarely within its "core class" of test

imonial statements. Id., 51, 52, 53. To reach this position, Justice Scalia,

writing for the majority in Crawford, started with the language o:: the Confron

tation Clause: "In all prosecutions, the accused shall enjoy the right • • • to

be confronted with the witnesses against him." U.S. Const. Amend. V. Justice

Scalia, then turned to history to determine whether the founders understood

"Witnesses against a defendant to mean those who actually testify at trial,

those whose statements are offered at trial, or something in-between." CrawPage 27

ford, 541 U.S. at 42-43. Notwithstanding this indication of a som ewhat broader

inquiry, Justice Scalia's focuse thereafter is almost exclusively upon out-of

court statements that might have been offered in evidence at tria 1 and whether

cross-examination of such a statement was a prerequisite to its a imissibility.

Id., 43-46. One source of evidence similar to a modem police intsrrogation

was the "Marian" bail and Committial proceedure, which "required justices of

the peace to examine suspects and witnesses in felony cases and to certify the

results to the court." Id., at 44. And while there was once some 1 ioubt whether

the cross-examination requirement applied to these interrogations , "by 1791

(the year the Sixth Amendment was ratified), courts were applying the cross

examination rule even to examinations by justices of the peace in felony

cases." Id., at 46.

Those who must be cross-examined (i.e., witnesses) are those who give

testimony that is "[a] solemn declaration of affirmation made for the purpose

of establishing or proving some fact." According to Justice Scalia, it is

therefore such "testimonial" statements, when offered into evidence at trial,

which must have been cross-examined at the time made if the persoji who made

the statement is unavailable to testify. Since "statements taken yy police

officers in the course of interrogations are testimonial," as a definitional

matter, a defendant's own confession, interrogation, and interview should be

included within this category.

D. ARE CONFESSIONS, INTERROGATIONS, AND INTERVIEWS HEARSAY?

While there is a "general agreement that the prosecution is entitled to

introduce confessions, the conceptual basis for this position is somewhat un

clear." 1 McCormick on Evid. § 144, at 20 (John W. Strong, 5th ed

1999). The

advisory Committee Notes (ACN) to the Federal Rules of Evidence dcj> little to

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elucidate what that conceptual basis might be. The ACN categorize statements

by a party opponent as not hearsay because their admissibility "i3 the result

of the adversary system rather than satisfaction of the conditions of the hear

say rule." One explaination of the Advisory Committee's position Ls:

The exceptions to the hearsay rule apply to admit hearsay whan surrounding

circumstances provide guarantees of reliability. There are no guarantees of

reliability in the case of an admission. Therefore, admissions do not qualify

for an exception to the hearsay rule. Nevertheless, admissions have been re

ceived into evidence since time immemorial. If they do not qualify as an ex

ception, then they must have been received because they are not hearsay at all.

Roger C. Park et. al., Evidence Law; A student's Guide to the Law of Evidence

as Applied in American Trials § 7.07, at 274 (2nd ed. 2004); See also Chris

topher B. Mueller & Laird C. Kirk Patrick, Evid, § 8.27, at 797 (4th ed.

2009)("Individual Admission).

However, there is circularity in this rationalization that bbgs the real

question. The essence of hearsay, as it is defined in the Rules o : Evidence,

is "an out-of-court assertion, offered to prove the truth of the matter asser

ted." 2 McCormick, 5th ed., supra note 55, § 246, at 96; See FRE (k TRE 801.

Since a defendant's Confession, interrogation, and interviews unambiguously

meets this definition, how is it somehow mysteriously dubbed "not hearsay"

just because it has been received in evidence from "time immemorial"?

One prominent twentieth century commentator tackled this conundrum head on.

After examining and Rejecting several theories for the admissibility of party

statements for reasons other than as exceptions to the hearsay rule, Professor

Edmund M. Morgan concluded:

Certain it is that extra-judicial admission are received in evidence.

Equally certain is that they are received for the purpose of proving the truth

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of the matter admitted. It is likewise certain that they do not fa 11 within

that exception to the rule against hearsay which admits declarations against

interest. These are the facts, and from them the conclusion is inevitable that

they are received as an exception to the rule against hearsay, and not that they

are received on any theory that are not hearsay.

:.Indeed, such statements are admitted into evidence as exceptions to the

hearsay rule because "all the substantial reasons for excluding hearsay" do not

apply to these statements. The party against whom they are offered cannot com

plain about the "lack of confrontation," the "lack of opportunity for crossexamination," or the fact that he/she "was not under oath.

Thus, Professor

Morgan faced an inescapable fact that confessions, interrogations

and inter-

views fall squarely within the definition of hearsay and that they are admiss

ible as an exception to that rule. Given the definition of hearsay-, the logic of

this position is unassailable. This is unconstitutional as applied to Peti

tioner's case. Therefore, confessions, interrogations, and interviews should

be classified as "testimonial hearsay" where there is absolutely no admission

to any wrong doing, nor any criminal offense[s] for Crawford purposes.

F. CRIMINAL DEFENDANT'S ARE NOT UNAVAILABLE TIL HE OR SHI!

EXERCISES THEIR FIFTH AMENDMENT RIGHT TO NOT TESTIFY.

Despite the catergotization of a confession, interrogation, and interviews

as "testimonial hearsay," Crawford's cross-examination requirement would apply

only if the declarant is unavailable as a witness at trial. Id., 1 >41 U.S. at

59. But what exactly does unavailable mean? Does it mean unavailable entirely,

or unavailable to the party seeking to introduce the out-of-court statement?

If unavailable means, unavailable to the party offering the evidence of an outof-court statement,

then a criminal defendant is clearly unavailable as a

witness when the prosecution offers his confession, interrogation

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and interv-

view in its case-in-chief. The Federal Rules of Evidence and Texas Rules define

the relevant form of unavailability as* "A declarant is considered to be

unavailable as a witness if the declarant: 1) is exempted from testifying about

the subject matter of the declarant's statement because the court rules that a

privilege applies • • •

This test of unavailabilty clearly applies to a crim-

inal defendant who has a valid claim of privilege that prevents tHe prosecution

from calling him or her as a witness. So, at least in that sense, a defendant

is unavailable as a witness at the time the prosecution offers his or her con

fession during its case-in-chief. See United States v. Lilley, 58] F.2d 182,

187 (8th Cir. 1978)(holding that the defendant's husband was unavailble to

prosecution as a witness during its case-in-chief due to defendant's invocation

of maritial privilege).

On the other hand, a criminal defendant is clearly not unavailable as a

witness in any absolute sense. He or she has the right to testify on their be

half. Rock v. Arkansas, 483 U.S. 44, 51 (1987). Moreover, he or she has an ad

vantage that other witnesses do not have — the Confrontation Clatse guaran

tees his or her right to be present in court while the prosecutior witnesses]

testify. Indeed, the fact that the defendant has that advantage, as well as the

option to testify, seems to undergrid the admissibility of confessions, inter

rogations, and interviews as exceptions to the hearsay rule.

G. A DEFENDANT CANNOT BE FORCED TO CHOOSE ONE OONSTITUIOKAL

RIGHT OVER ANOTHER DUE TO THE LAW OF EVIDENCE.

This Court has rejected the view that the Confrontation Clause applies of

its own force to in-court testimony, and its application to out-of-court state

ments introduced at trial depends upon "the law of evidence for the time being."

Leaving the regulation of out-of-court statements to the law of evidence would

render the confrontation clause powerless to prevent even the most flagrant

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inquisitorial practices.

The results of this Court's decisions have generally been faithful to the

original meaning of the Confrontation Clause, the same cannot be said of their

rationales. This Court's decision in OhiocV. Roberts conditions the admiss

ibility of all hearsay evidence on whether it falls under a "firmLy rooted

hearsay exception" or bears "particularized guarantees of trustworthiness."

Id., 448 U.S. 56, 66 (1980). This test departs from the historical principles

identified above in two respects. First, it is too broad: it applies the same

mode of analyis whether or not the hearsay consists of ex parte testimony.

This often results in close Constitutional scrutiny in cases that are far re

moved from the core concerns of the Clause. At the same time, the test is too

narrow: it admits statements that do consist of ex parte testimony upon a mere

finding of reliability. This malleable standard often fails to protect against

paradigmatic confrontation violations.

However, where testimonial statements are involved, this Court does not

think the Framers meant to leave the Sixth Amendment protection to the vag

aries of the Rules of the Evidence, much less to amorphous notions of "reli

ability." Certainly, none of the authorities discussed:above acknowledge any

general reliability exception to the common-law rule. Admitting statements

deemed reliable by a Judge is fundamentally at odds with the righ: of confron

tation. To be sure, the Clause's ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a substantive guarantee. It com

mands, not that evidence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross-examination. The Clause

thus reflects a judgment, not only about desirability of reliable evidence,

but about how reliability can best be determined.

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In the end, this Court must GRANT certiorari because Tex. R. . Svid. Rule

801(e)(2)(A) and Fed. R. Evid. Rule 801(d)(2)(A) is unconstitutional as applied

to Petitioner's case, because it forced Petitioner to choose one 'Constitutional

right over another. The Petitioner was denied Due Process right, - ifth, Sixth,

Fourteenth Amendment, and a fundamentally fair trial when he was Eorced to tes

tify by the admission of the audio recording that caused him to“forgo his-fight

not to testify by the ineffective assistance of counsel failing to properly

object.

H. PETITIONER HAS SHOWN (COUNSEL'S DEFICIENT PERFORMANCE ,\ND

PREJUDICE.

This Court in United States v. Dominguez-Benitez, 542 74, 83 :i.9 (2004)

("The reasonable-probability standard is not the same as, and should not be

confused with a requirement that a defendant prove by a preponderance of the

evidence that but for error things would have been different. See Kyles v.

Whitley, 514 U.S. 419, 434 (1995)). Moreover, a hung jury on one count in an

indictment is enough to show prejudice.and there is no authority from this

court that requires a showing that a defendant would have been acquitted.

Therefore, the Petitioner has made the required showing in the facts and

record, along with this Court's authority that the Petitioner received ineffec

tive assistance of counsel to a fundamental degree that denied him a fundament

ally fair trial and punishment. This Court must GRANT certiorari to stop the

question above to keep occurring.

CONCLUSION

Taking into consideration the four questions above and the magnitude of

the impact it has on criminal defendant's fighting for their life to be free,

this Court must GRANT certiorari to prevent this injustice from reoccurring.

The American Justice System depends on this Court to set the precedent and

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to ensure that criminal defendants receive a fundamentally fair t rial and punishment. Without this Court's intervention then errors will keep occurring in

our American Justice System.

Respectfully Submitted,

Albertico Corral Cruz

TDCJ# 02367582

H.H. Coffield Unit

2661 FM 2054

Tennessee Colony, Texas 75884-5000

Pro se Litigant

No Phone or Email.

OaVt'- Ma-

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.