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No.» 1259653-€ EX PARTE y§ IN THE 262ND DISTRICT § CoURT oF

CRYSTAL Y. ROBERSON, 4 § HARRIS COUNTY, T E X A S Applicant/

lSTATE’S ORIGINAL ANSWER The State of Texas, through its Assistant District Attorney for Harris County, files this, its original answer in the above-captioned.cause, having been served With an applicationfor Writ of habeas corpus pursuant to Tex. Crim. Proc. Code art. ll.07 § §, and Would show the following: y " 1. The applicant is confined~pu_rsuant to the judgment and sentence of the 262rld

District Court of Harris County, Texas, in cause number 1259653, vvhere the

applicant Was convicted by a jury of the felony offense of aggravated assault ot a family member. The jury assessed punishment at 36 (thirty) years confinement in the Texas Department of Crim`inal Justice - Institutional Division.

The applicant’s conviction Was initially affirmed by the First Court of Appeals. Roberson v. State,` 371 S.W.Bd 557 (Tex. App. - Houston [1st Dist.] 2013, pet. granted). The Court of Criminal Appeals granted the applicant’s petition for discretionary review on February 11, 2013. The applicant’s conviction Was affirmed

by the Court. Roberson v. State`, 420 S.W.3d 832 (Tex. Crim. App. 2013).

The applicant’s initial application for writ of habeas corpus, cause number 12`59653-A, was dismissed on May 9, 2012, because it was filed before the applicant’s appeal was final. Ex parte Roberson, WR-34,388-11 (Tex. Crim. App. 2012).' The applicant’s previous writ, cause number 1259653-B, was dismissed on December 18, 2013, because it was also prematurely filed before the applicant’s appeal was final. Ex parte Roberson, WR-34,388-12 (Tex. Crim. Appi 2013). The mandate issued on December 17, 2013. The instant application was filed on August

4, 2015.

II' State denies the factual allegations made in the instant application, except

those supported by official court records and offers the following additional reply:

TO PLICANT S IRSTAND ECOND ROUNDS FOR M The applicant alleges in his first and second grounds for relief that the trial court abused its discretion. In her first ground he alleges that the trial court lacked . subject matter jurisdiction because her offense Was a misdemeanor. Applicant’s Wrz't at 6. The applicant alleges in her second ground that the trial court erred by entering an affirmative finding of a deadly weapon. Applicant’s Writ at 7. The applicant’s

first ground is meritless because the applicant was charged with aggravated assault

which is a felony offense. TEX. PEN. CODE §22.02(b) (West 2009). With respect to the applicant’s second ground for relief, the trial court did make dan affirmative finding of a deadly weapon being used during the course and commission of the applicant’s offense (IV R.R. at 17). The State alleged the applicant used a deadly weapon as an element of the offense See State’s Exhibit A, Indiclment, cause no. ]259653. Additionally, an allegation regarding an improper finding that a deadly weapon has been used should be raised on direct appeal, and not initially on habeas corpus. Ex parte Nelson, 137 S.W.3d` 666 (Tex. Crim. App. 2004). Therefore, the

applicant’s second ground should also be denied.

REPLY To APPLICANT's THIRD GRoUND FoR RE;JIEF The applicant alleges in her third ground for relief that the State produced no

evidence in trial or a judgment of a prior conviction involving family violence.

Appizcam `s Wrzr at jU. Tne applicants claim is meritless because the applicant was charged with charged with the offense of aggravated vassault.l There is no requirement that the State allege or prove that the applicant had been previously convicted of assault of a family member when the State charges a person with

aggravated assault. See TEX. PEN. CODE § 22.02(a)(l) (West 2009).

l The applicant was initially indicted for the felony`off`ense of aggravated assault of a farnin member with a deadly Weapon. However, the State abandoned the family member (dating relationship) language contained Within the indictment by striking through it on the first day of the applicant’s trial. See State ’s Exhibit A, Indictment, cause no. 1259653; (II R.R. at 4-5).

3

A claim of no evidence is cognizable on habeas, however, the reporter’s record demonstrates there is sufficient evidence to support the applicant’s conviction. The applicant and the complainant, Alynncia Harris, were involved in a romantic relationship and Were living together at the time of this offense (III R.R. at 5 0-52). ` On the day of the offense, appellant and Ms. Harris became involved in an argument (III R.R. at 57-60). The argument became physical and appellant stabbed the complainant in the arm with a knife (III R.R. at 65-67). Furthermore, to the extent that the applicant is challenging there is insufficient evidence, a claim of insufficiency of the evidence does not state a claim for relief in habeas corpus. Ex parte Easter, 615 'S.W.Zd 719 (Tex. Crim. App. 1981). Thus, the applicant’s third

ground should be denied.

REPLY TO APPLICANT'S FOURTH GROUND FOR RELIEF

The applicant claims in her fourth ground for relief that he was denied effective assistance of counsel. Specifically, the applicant alleges that her counsel, Ms. Ruth Y. Burton, was ineffective because she failed to:

1. Object at any point in the presence of the jury during the trial;

2. File a motion to dismiss the indictment due to lack of subject matter jurisdiction; and '

3. Investigate the charging instrument or evidence.

Applz'cam"s Writ at ]2-]3.

The United States Supreme Court held in Strz'ckland v. _Washz'ngton, 466 U.S. 668, 686 (1984), that the benchmark for judging any claim of ineffective assistance ~ of counsel is whether counsel's conduct so undermined the proper functioning of` the adversarial process that the trial cannot_be relied upon as having produced a just result. The Court in Strickland set forth a two-part standard, which has been adopted by Texas. See Hernana'ez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First, the defendant must prove by a preponderance of the evidence that counsel’s representation fell below an objective standard of reasonableness Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Narvaz'z v. State, 840 S.W.2d 415, 434 l(Tex. Crim. App. l1992) (citing Stricklana' v. Washingron, 466 U.S. at 688). Reasonably effective assistance of counsel does not require error-free counsel, or

l counsel Whose competency is judged by hindsight Mercaa’o v. State, 615 S.W.2d 225, 228 (Tex. Crim. App.'1981). Second, there must be a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.' Id. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. l

Article I, Section 10 of the Texas Constitution also requires that a criminal defendant receive effective assistance of counsel. However, the Texas constitutional provision does not create a standard that is more protective of a

5

defendant's rights than that established in Strz'cklana’. Black v. State, 816 S.W.2d 350, 357 (Tex.v Crim. App. 1991) (citing Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Therefore, an analysis of the effectiveness of the applicant’s trial counsel in the primary case pursuant to the Slricklana' standard satisfies both the federal and state constitutional requirements

Furthermore, when evaluating an ineffective assistance claim, the reviewing court looks at the totality of the representation and the particular circumstances of the case. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In reviewing counsel's performance, the court indulges a strong presumption that he acted within the wide range of reasonable professional assistance Id.

The applicant’s first claim of ineffective assistance is not supported by the reporter’s record. Ms. Burtonldid object in the presence of the jury (III R.R. at 18-

19, 39, 41, 48, 56, 58, 64, 90, 98-99, 137). Furthermore, the applicant fails to

specify what obj_ection(s) counsel should have made and how she was prejudiced by any such failure on Burton, To successfully assert that trial counsel’s failure to object amounted to ineffective assistance, an applicant must show that the trial judge would have committed error in overruling such an objection. Ex parte lth'te, 160 S.W.3d 46 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App.` 1996). Therefore, the applicant’s first claim of ineffective assistance is

meritless and should be denied.

The applicant next claims that counsel should have filed a motion to dismiss the indictment because due to a lack of subject matter jurisdiction. The reporter’s record shows that no such motion was made by Burton, however, Burton did make a motion that the State failed to meet its burden of proof as to all of the elements of the case after the State rested during the guilt stage UII R.R. at 143). The trial court denied Burton’s motion (III R.R.- at 143). The applicant offers no legal support that such a motion would have been granted if it had been made. Again, the applicant bears the burden of showing that the trial court would have erred in overruling the motion to dismiss and she has not shown that. Ia’. Thus, the applicant’s second claim should be denied.

The applicant’s last allegation of ineffective assistance of counsel is that she failed to investigate the charging instrument or the evidence. An applicant raising

the claim that his counsel was ineffective for failing to investigate, he must show

what a more i’n-depth investigation would have shown. Mooney v. State, 817 S.W.2d 693, 697 (Tex. Crim. App. 1991). The applicant does not show what further investigation would have revealed or how it would have been beneficial Therefore,

the applicant’s last claim should be rejected.

III. Applicant raises questions of law and fact, Which can be resolved by the Court

of Criminal Appeals upon review‘of official court records and without need for an

evidentiary hearing.

IV.

Service has been accomplished by sending a copy of this instrument to the . following address:

Crystal Y. Roberson

# 1915067 - Lane Murray Unit 1916 N. Hwy 36 Bypass Gatesville, TX 76596

sIGNED this 19th day of october, 2015

Respectfully su_bm` d,

Andrew J. Assistant District Attorney Harris County, Texas 1201`Fran1<1in, 6"‘ Floor Houstori, Texas 77002 (713) 755-6657

(713) 755-5809 (fax) rean Bar ID #24048100

C'ertificate of Compliance as Reguired by Tex. R. App. 73.1§![

The State of Texas, through its Assistant District Attorney for Harris County, files this, its Certificate of Compliance' in the above-captioned cause, having been served with an application for writ of habeas corpus pursuant to .Tex. Crim. Proc. Code art. 11.07 § 3. The State certifies that the number of words in the State’s

Answer is 1,680.

THE STATE OF TEXAS

VS. CRYSTAL YVETTE ROBERSON SPN: 00778165 12601 S GREEN #1804 ' DOB: BF 08 17 66

HOUSTON, TX 77034

NCIC CODE: 1314 21 RELATED CASES:

FELONY cHARGE: AGGRAVATED ASSAqu Wmmber\

CAUSE NO: 1259653 HARR!S COUNTY DISTRICT COURT NO: FIRST SE'IT[NG DATE:

mfaw\

lN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

DATE PR.EPARED: 7/1/2010

§

q,

D.A. LOG NUMBER:1628330 CJIS TRACKING NO.:9165329163-A001

BY: LM DA NO: 002261142 AGENCY:HPD

O/R NO: 055012410A AKREST DATE: 04 17 10

BAIL: $NO BOND PRIOR CAUSE NO:

The duly organized Grand Iury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texa_s,

CRYSTAL YVE'I'l'E ROBERSON, hereafter styled the Defendant, heretofore on

intentionally and knowingly cause bodily injury to ALYNNCIA HARR]S, .- styled the Complainant, by using a deadly weapon, namely, A KNlFE.

Before the commission of the offense alleged above, (hereatter styled the primary ».

l77TI-l DlSTRICT COURT of HARRIS County, Texas, the Defendant was DELIVER A CONTROLLED SUBSTANCE.

or about APRIL 17, 2010, did then and there unlawfully, .. ,.... _.; »._ :.,:`. ._, _’ ',_ ._.;.,_

' ense), on IULY 8, 1991, in Cause Number 0590710, in the convicted of the felony of POSSESSION WlTH INTENT TO

Before the commission of the primary otfense, and after the conviction in Cause Number 05907|0 was final, the Defendant committed the felony of AGGRAVATED ASSAULT and was finally convicted of that offense on AUGUST 28, 1989, in Cause Number 475567, in the 232ND

DIS’I`RICT COURT ofHARR.lS County, Texas.

FlLED

Loren Jackson Distrlct Clerk

JuL 06 2010 la*.o\ PI'\

mmi umw T¢xo¢ ` NL.() Depuly

Time:

Bv

lNDlCTM

FOREMAN OF THE GRAND JURY

RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging

ENT

` - , hereafter

l §

r. §

THE STATE OF TEXAS . D.A. LOG NUMBER:1628330 VS. . ' CJIS TRACKING NO.:9l65329163-A001 CRYSTAL YVETTE ROBERSON SPN: 00778165 BY: LM DA NO: 002261 142 '

12601 S GREEN #1804 DOB: BF 08 17 66 ' AGENCY:H.PD

HOUSTON, TX 77034 DATE PREPARED: 7/1/2010 O/R NO: 055012410A

ARREST DATE: 04 17 10

NClC CODE: 1314 21 RELATED CASES: FELONY CHARGE: AGGRAVATED ASSAULT - Family Member

cAusE No; 1259653 BAIL: sNo norm 'HAmus couNTY DIsTchT couR'r No: l?& ¢Uo ¢>\ exxon cAusE No; Fmsr sEmNc DATE:

lN THE NAME AND BY AUTHORITY OF 'I'HE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Ham's Coimty, Texas, that in Harris County, Texas, CRYSTAL YVE'ITE ROBERSON, hereafter styled the Defiendant, heretofore on or about APRIL 17, 2010, did then and there unlawfully, intentionally and knowingly cause bodily injury to ALYNNCIA HARRIS, a person with whom the Defendant had a dating relationship, hereafter styled the Complainant, by using a deadly weapon, namely, A KN'IFE.

Before the commission of the o&`ense alleged above, (hereatter styled the primary offense), on JULY 8, 1991, in Cause Number 0590710, in the 177TH DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION WlTH INTENT TO DELIVER A CONTROLLED SUBSTANCE. ~ '

Before the commission of the primary otfense, and alter the conviction in Cause Number 0590710 was final, the Defendant committed the felony of AGGRAVATED ASSAULT and was finally convicted of that offense on AUGUST 28, 1989, in Cause Number 475567, in the 232ND DISTRICT COURT of HARRIS County, Texas. -

FILED

Jaekson Lgl§!?lct Cle¢k

JuL 06 2010 Tlme: D`.’Ol pm

_ W

-Page l ofl

3

3 - .

s F°'e § / 180”'

A§Ams'r THE PEACE ANr) anNrrY oF THE s'rATE. d£/ ( ,¢;_

- - 7

§

§ FOREMAN or THE GRAND JURY

0

§ REcoRoER's MEMoRANouM 5 INDICTMENT Thls instrument is of poor qual|fy o at the time of lmagl"g

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office

this Cotober 19, ZQLS

Certified DocumentNumber: 45 40700 TotalPa es: l

WWM

Chris Daniel, DISTRICT'CLERK HARRIS COUN'I`Y, TEXAS

In accordancewith Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail [email protected]

Cause No. 1259653-C

EX PARTE § IN THE 262ND DISTRICT § coURT oF cRYSTAL Y. RoBERSoN, § HARRIS coUNTY, TEXAS Applicant

STATE'S PROPOSED FINDINGS OF FACT,` CONCLUSIONS OF LAW, AND ORDER

Having reviewed the documents filed in cause number 1259653-C and the official trial court records of the challenged conviction, The Couit adopts as Findings of Fact the history of the case as set forth in the State’s Original Answer. The Court finds that there are no controverted, previously unresolved facts material to'the legality of the applicant’s confinement which require an evidentiary hearing and recommends that the relief requested be denied for the

following reasons:

FINDINGS OF FACT

1. The Court finds that the applicant was initially indicted for the felony offense of aggravated assault against a family member. See State’s Exhz`bit B, Indictment, cause number 1259653. On the day that trial commenced the State abandoned the language that alleged the applicant and the complainant had a dating relationship See State’s E§chz'bit A, Indictment, cause number 1259653.

2. The Court finds that after a two day trial the applicant was convicted of the felony offense of aggravated assault. The presiding judge at the time, the Honorable Mike Anderson, found that the offense was committed against a family member and that a deadly weapon was used (IV R.R. at 17). The Court finds that the jury assessed the applicant’s punishment at thirty years confinement in the Texas Department of Criminal Justice - Correctional Institutions Division.

3. The Court finds that the applicant’s conviction was affirmed by the First Court of Appeals. Roberson v. State, 371 S.W.3d 557 (Tex. App. - Houston [lSt Dist.] 2013, pet. granted). The Court of Criminal Appeals granted the applicant’s petition for discretionary review and subsequently affirmed the applicant’s conviction, Roberson v. State, 420 S.W.3d 832 (Tex. Crim. App. 2013).

. The Court finds that the applicant’s two prior applications for writ of habeas corpus were dismissed on May 9, 2012, and December 18, 2013, respectively, because they were filed before the applicant’s appeal was final. The applicant’s appeal became final when the mandate issued on December 17, 2013.

. The Court finds that the State presented sufficient evidence to support the applicant’s conviction _

. The Court finds that the applicant was represented by appointed counsel, Ms. Ruth Y. Burton (“Burton”).

. The Court finds, contrary to the applicant’s assertion, that Burton objected numerous times during the applicant’s trial (III R.R. at 18-19, 39, 41, 48, 56, 58, 64, 90, 98-99, 137). '

CONCLUSIONS OF LAW

. The Court had jurisdiction over the applicant’s case because she was charged and convicted of the felony offense of aggravated assault. Tex. Pen. Code § 22.02(b) (West 2009).

. The applicant’s second ground for relief is meritless because her complaint of an' improper deadly Weapon finding should have been raised on direct appeal. Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App./2004).

. Challenges to the sufficiency of the evidence are not cognizable in post-conviction habeas proceedings Ex parte Easter, 615 S.W.2d 719 (Tex. Crim. App. 1981); Ex parte ' 'Christz'an, 760 S.W.2d 659, 660 (Tex. Crim. App. 1988). Applicant’s first, second, third, fifth, sixth, and seventh grounds for relief are without merit.

. The applicant has failed to prove by a.preponderance of the evidence that counsel’s representation fell below an objective standard of reasonableness and a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different Milchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Narvaiz v. State, 840 S.W.2d 415, 434 (Tex'. Crim. App. 1992) (citing Strz"ckland v. Washington, 466 U.S. 668, 688 (1984)).

5. The applicant fails to allege what objection(s) that Burton should have made. Further, the ' applicant has not shown that the trial judge would have committed error in overruling any objection had it been made. Ex parte White, 160 S.W.3d 46 (Tex. Crim-. App. 2004); Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996).

6. The applicant fails to allege and show what a more thorough, in-depth investigation would have revealed and how it would have benefitted his defense. Mooney v. State, 817 S.W.2d 693, 696-97 (Tex. Crim. App. 1991); Wilkerson v. State, 726 S.W.2d 542, 550 (Tex .Crim. App. 1986). l

7. The totality of the representation afforded Applicant was sufficient to protect his right to reasonably effective assistance of trial counsel.

8. In all things, Applicant fails to show that his conviction and sentence were improperly l obtained.

Accordingly, it is recommended to the Tean Court of Criminal Appeals that the

requested habeas relief be denied.

Q;RM

THE CLERK IS ORDERED to prepare a transcript and transmit same to the Court of Criminal

Appeals as provided by TEX. CRIM. PROC. CODE art. 11.07. _The transcript shall include certified

copies of the following documents:

1.

5.

6.

the application for writ of habeas corpus, and any additional pleadings filed by the applicant;

State’s answer and all attachements;

the Court's order;

the indictment, judgment and sentence, and docket sheets in cause number 1259653 (unless they have been sent to the Tean Court of Criminal Appeals pursuant to a post-conviction writ of habeas corpus order);

the clerk’s & reporter’s record in cause number 1255963; and

the appellate opinions in cause number 1259653.

THE CLERK is further ORDERED to send a copy of this order to the applicant, Crystal Y.

Roberson, # 1915067 - Lane Murray Unit, 1916 N. Hwy 36 Bypass, Gatesville, TX 76596; and to

the State, Assistant District Attorney Andrew J. Srnith, Harris County District Attorney’s Oflice,

1201 Franklin Suite 600, Houston, Texas 77002. '

By the following signature, the Court adopts

the State’s Proposed Findings of Fact, Conclusions of Law and Order.

sIGNED this day of . , 2015.

IUDGE PRESIDING

Cause No. 1259653-C

EX PARTE ` § IN THE 262ND DISTRICT § ' ~ coURr oF cRYsTAL Y. RoBERSoN, § l HARRIS coUNTY, TEXAS Applicant CERTIFICATE oF sERvicE

The undersigned counsel certifies that I have served a copy of the “State's Proposed Findings of Fact, Conclusions of Law, and Order” in cause number 1259653-A to the applicant on October 20, 2015, by mail as follows:

Crystal Y. Roberson

# 1915067 - Lane Murray Unit

1916 N. Hwy 36 Bypass Gatesville, TX 76596

Andrew J. Smirh / Assistant District Attomey Harris County, Texas

` 1201 Franklin, Suite 600 Houston, Texas 77002

` (713) 755-6657 Texas Bar ID #24048100