Beason, Gary Don

• Court: Court of Appeals of Texas
• Decided: February 2, 2015
• Docket: WR-42,787-03
• Status: Published

Opinion

1 (J7sfo&y /&*^SrG*\ MOTION DISMISSED TffCJ # / y?3 *3f* DATE: Q)*}/ j^ /^f^c/injJJ Unjf BY: ?'c' ' • - - "

^

Co\A^fZ.t of Ctff/n/sLoJ Jpfujds ^A^^5 FEB 02 2015 fo/3oy /Z3o& ^p,^d s&Jh*+\

in o~Ay od-of/&^«^ &«^y

w,7k. ry {**£ tx+'ho^. Too ^y /o«a*-s- yfjtX^' f)o*^ /£jlAJHT^ IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS

IN CAUSE NO. CR21120-A

EX PARTE § ON APPEAL FROM THE 35TH

GAR? DON BEASON § JUDICIAL DISTRICT COURT

§ OF BROWN COUNTY, TEXAS

MOTION TO REBUT APPEAL ATTORNEY'S AFFIDAVIT

COMES NOW, GARY DON BEASON, Applicant in the foregoing

cause and wouldi.show M the Court that: Appeal Attorney Nathan

Butler filed his response to the Court's order via affidavit

on January 5th, 2015.

Applicant did not recieve his copy until January 21st,

2015. 15 days after his certification that said affidavit was

mailed on January 5th, 2015.

Applicant herein asserts that Appellant Attorney claims

applicant was given an exact copy of the indictment on file,

and that he was present at hearing when Court ordered such

amendment.

The record will not support Applicant was ever at hearing,

or was notified of such amendment, until August 8th, 2011 at

pretrial hearing where he waived his right to counsel. The

Court read from the docket and stated that an amendment was

done. (R.R., Vol.4, P.10). The Court Clerk's supplemental record, which Applicant

recieved from his Direct Appeal Attorney during the direct Appeal

stage, does contain a motion submitted on February 1st, 2011

by the State's Attorney requesting leave to amend.

And, an order by the Court signed gfcoruary 7th, which says:

"After notice feu Q^Li}n-&UirLO . . . " but defendant was never at hear

ing or notified by Court Clerk or his attorney of record at

that time.

The record- will reflect- that Attorney of record at that

time- was Attorney Judson Wobdley; who was- removed on May 31st,

2011 due to conflict as he also represented Applicant's wife

and niece, that were co-defendants and State's witnesses against

him.

Appellant Attorney's claim that Applicant was given an

exact copy of indictment on record is false, and his legal

argument is moot.

The Court of Criminal Appeals held in Aguilar v. State, 846

S.W.2d 318 (1993), once indictment is challenged via motion

to quash,• if defendant does not prevail at Court, it becomes

first requirement on Appeal, (paraphrased). Therefore Appellant

Attorney was prejudicially ineffective on appeal.

Applicant preserved the error according to Studor v. State,

799 S-W.2d 263 (Tex.Crim.App-1990), quoted in Aguilar v. State,

846 S.W.2d 318 (Tex.Crim.App.1993) and Art-1.14(b) of the Texas

Code of Criminal Procedure.

See also Applicant's rebut to State's response in this

same cause.

2. Respectfully submitted,

7)

TDCJ# 1743056

McCONNSLL UNIT

3001 S. EMILY DR.

BEEVILLE, TEXAS 78102

PNSWORN DECLARATION

I, GARY DON BEASON, Applicant in the foregoing cause do

hereby declare under penalty of perjury that the foregoing is

true and correct to the best of my knowledge.

jOth. j3jula&^ GARY DOT BEASON

0/-2&-/S Dated On

CERTIFICATE OF SERVICE

I, GARY DON BEASON, the undersigned do hereby certify that

a true and correct copy of the foregoing motion was sent to

the Brown County District Attorney's office at 200 S. Broadway,

Suite 323, Brownwood, Texas 76801 on the Z&/K day of rJaJ\UL

GARY Q&N BEASON

TDCJ# 1743055

McCONNELL UNIT

BEEVILLE, TEXAS"73102

3.