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STATE’S RE'SPONSE TO APPLICANT'S PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE ]UDC~E OF SAID COURT: Cornes noW the State of Texas by and through its Criminal District Attorney, Nicholas ”_Nico" LaHood, and files this response to the Applicant’s Petition for Writ of Habeas Corpus. . I. I~Iabeas Writ Filed l The Applicant Cary Allen Simmang filed this petition for a post-conviction Writ of habeas corpus pursuant to art. 11_.07, § 3(a), Texas Code of Crirninal Procedure. The State files this mandatory answer pursuant to art. 11.07 § 3(b).

II. Staternent of the Case \/\/KO /‘/§ .

The Applicant Wa£gvicted of the offense of Murder in Cause No, 2008-CR-

' 3999W and punishment Was assessed at confinement for 40 years. His petition for a Writ of habeas corpus Was filed on August 3, 2015. The State Was served by the District Clerl< of Bexar County on August 5, 2015.

III. State's General Denial The State generally and specifically denies each and every allegation of fact made by the Applicant and demands strict proof of same. § C 0 N C L U S I 0 N WHEREFORE, PREMISES CONSIDERED, the State Would ask that the trial court enter an ORDER recommending the relief be denied.

Respectfully submitted, NICHOLAS ”NICO” LAHOOD Crirninal District Attorney Bexar County, Texas §PMW DON Ass tant Crirninal District Attorney Bexar County, Texas Paul Elizondo ToWer W. Nueva San Antonio, Texas 78205 SBN: 02880500 (210) 335-2418 (210) 335-2436-FAX

Attorneys for the State CERTIFICATE OF SERVICE I, ]ay Brandon, Assistant Criminal District Attorney, Bexar County, Texas, certify that a true and correct copy of the foregoing response Will be mailed to Cary A e Sirnrnang, Clements Unit, 9601 Spur 591, Arnarillo, Texas, 79107, on this th da;’$ August, 2015. l

]AY' RA¢§l'boNv 1651 NO. 2008-CR-399QW-W2 EX PARTE § IN THE DISTRICT COURT § 227TH JUDICIAL DISTRICT CARY ALLEN SIMMANG § BEXAR COUNTY, TEXAS O R D E R Applicant, Cary Allen Simmang, has filed a pro se application for post-conviction writ of habeas corpus pursuant Article l l .07 of the Texas Code of Criminal Procedure, collaterally attacking his conviction in cause number 2008-CR-3999W. (West 2014).

HISTORY OF THE CASE On May 12, 2008, pursuant to a plea bargain agreement, Applicant pleaded nolo contendere to two counts of injury to a child (causing serious mental impairment). On August 4, 2008, Applicant was placed on deferred adjudication community supervision for a period often years and fined $1,500. On May 20, 2009, the State moved to adjudicate guilt and revoke lSimmang's community supervision after he failed to comply with the terms of his community supervision A hearing was held on June 12, 2009. Applicant’s probation was revoked, and he was adjudicated guilty and sentenced to forty years the Texas Department of Criminal~Justice - lnstitutional Division and fined $1500. Applicant filed notice of appeal and on June 9, 2010, thel judgment of` the trial court was affirmed (04~09-00563). Applicant’s petition for discretionary`review was refused and mandate issued November 19, 2010.

Applicant’s first writ application was denied without a written order on the trial court’s findings without a hearing on September 24,- 2014. (WR;81,987-0]). ~Applicant filed this second writ application on August 3, 201_5.- A copy of this application was received by the District Attorney on August5,2015. 5>//”%/% :#jj/ ALLEGATIONS OF APPLICANT ln Ground One Applicant alleges that his rights to a “trial by jury and punishment” were violated. He claims he did not sign a jury waiver and therefore his sentence is illegal. Applicant asserts that the maximum sentence that could have been imposed was 5 years. He claims to have found newly discovered evidence and asks that his sentence be corrected to 5 years and he be released for time served.

In Ground Two Applicant claims there was a sentencing error. He asserts the maximum legal sentence he should have received is 10 years.

In Ground Three Applicant asserts “motion for mistrial/time served.” He claims the court committed error when un-negotiated terms were added to the plea bargain In Ground Four Applicant alleges ineffective assistance of counsel. He claims counsel’s blind acceptance of plea practices in the district courts shows harm and prejudice towards Applicant.

Applicant asserts the maximum sentence imposed should have been 5 years.

In Ground Five Applicant asserts “void punishment.” Applicant claims he was entitled to have a jury assess his punishment He claims the sentence is void because the punishment was not authorized ln Ground Six Applicant alleges prosecutorial misconduct in the sentencing stage of the trial.

He claims the prosecution failed to understand the proper punishment range fixed by the Legislature, causing the judge to enter a void judgment beyond the maximum of 5 years.

In Ground Seven Applicant alleges minimum sentencing was violated. He claims the agreement was for 10 years community supervision and therefore the maximum Sentence should not have exceeded 10 years imprisonment ln Ground Eight Applicant alleges a violation of the procedural rule of sentencing In Ground Nine Applicant asserts he is entitled to a new sentencing hearing because due process was violated. He claims his sentence is illegal because his punishment exceeds that set by the Legislature.

FINDINGS OF FACT AND`CONCLUSIONS OF LAW 1. At the outset, this Court believes that Applicant’s writ application does not strictly comply with the Texas Rule of Appellate Procedure 73.1. Therefore, the Texas Court of Criminal Appeals may choose to dismiss the application for that reason.

2. However', to the extent the merits of the application are going to be addressed, this Court makes the following findings and conclusions 3. Applicant’s first writ application was denied by the Court of Cn`minal Appeals on September 24, 2014. (WR-81,98 7-0]). The trial court’s recommendation in the first writ application was made after an assessment of the merits of the application The denial without a hearing by the Court of Criminal Appeals was based upon the trial court’s findings 4. This Court does not have jurisdiction to consider the merits of a subsequent application for writ of habeas corpus unless the application contains sufficient specific facts establishing that (1) the current claims and issues have not been and could not have been presented previously in an original application or~-in a previously considered"application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt. TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(1) (West 2012).

5. A factual basis of a claim is “unavailable” under Subsection (a)(l) “if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date,” and reasonable diligence “suggests at least some kind of inquiry has been made into the matter of the issue.” Ex parte Lemke, 13 S.W.3d 791, 794 (Tex.Crim.App.ZOOO).

The trial court cannot discern the “new evidence” Applicant is claiming that Would entitle him to relief on this second writ application Moreover, the court finds that Applicant has failed to raise any “new evidence” that supports relief in this case. The Court of Criminal Appeals has held that “When an applicant asserts a Herrera-type [actual innocence] claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicants innocence.” Ex parte Franklz`n, 72 S.W.3d 671 , 678 (Tex.Crim.App.ZOOZ). The court finds that Applicant has not met his burden of presenting newly discovered affirmative evidence of his innocence This Court finds that Applicant’s allegations in this writ application could have been presented in his previously filed writ application Therefore, Applicant is not entitled to relief on this second writ application TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(l) (West 2014) Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that this application be DISMISSED.

0 R D E R S The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this document, together with any attachments and forward the same to the following persons by mail or the most practical means: l a. The Court of Criminal Appeals Austin, Texas 78711 b. Nicholas LaHood Criminal District Attorney Paul Eli.zondo Tower Bexar County, Texas 78205 c. Cary Allen Simmang TDCJ No. 01580666 Clements Unit 9601 Spur 591 Amarillo, Texas 79107-9606 ~i . _ . _ ; - \ \. \ f sIGNED, oRDERED and DECREED On … i (t, § 0 l l . \\ s'\ 1 jailer ii let ft " JUDGE KEVIN M. o’coNNELL 227TH Judicial District Court Bexar CQunt-y, Texas