Brown, Kenneth Ray

• Court: Court of Appeals of Texas
• Decided: February 23, 2015
• Docket: WR-33,336-11
• Status: Published

Opinion

33 /53(/0’11

FEBRUARY 17, 2015

KENNEI‘H RAY BROwN #334618 M©T"@N DE HE ED JAMES v. ALLRED UNIT

DATE: 5 2101 FM 369 N BY- 9 c IOWA PARK, TX 76367 RECENED lN COURT OF CR\M|NAL APPEALS CLERK OFFICE COURT OF CRIMINAL APPEALS [FEB 23 2015

P.O. BOX 12308, CAPITOL STATION AUSTIN, TEXAS 78711

Ar@@v Awsua, Gf\@v‘k

Re: TRIAL COURT NUMBER 34845555F EX PAKI'E KE:NNEIH RAY. BROWN. wRIT NUMBER wR-33,336-11

cLE:RK ,

ENCI_DSED IS A MOI`ION FOR RELIEF FROM TI~IE ADJUDICATION JUDGMENT TO BE F`ILED FOR T[-IE COURT'S CONSIDERATION. PLEASE INFORM ME UPON THE F.I_LING OF THE ENCLOSED MOTION THEREPO THE ABOVE STYLED

/Maé/M{ ) @-%“

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ONE OF ONE PAGE

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IN THE COURT`OF CRIMINAL APPEALS

EX PARTE § wle NUMB]::R--wR-33,336-11 , § TRIAL coURT NUMBER_-3481»55-F KENNEI‘H RAY BRowN, - § - .

Movant.

MOTION FOR RELIEF FROM THE ADJUDICATION JUDGMENT

This motion is brought Pro Se by KENNETH RAY BROWN a State Prisoner of Texas herein called "BROWN or MOVANT" and submitted this motion pursuant to the Rules of Texas Courts.

The PRECISE JUDGMENT that this motion concerns to the above styled and numbered is the Adjudication Judgment under cause number 10-83-095-CR. Although this motion for relief and the 11.07 habeas corpus concerns VIOLATIONS of State and Federal constitutional rights to counsel representation at all_critical stag§_of the ~ criminal process. And, evidence of facts and circumstances from the OFFICIAL COURT, RECORDS that reflects/revers;s §§ GOUNSEL provided for Brown following a State's requested and granted Petition for Discretionary Review (PDR). Therefore, by law all preceeding following the granted State's PDR where the records are void of counsel representing Brown, by State and Federal Law such void of counsel represent~ _ation CONSTITUTES A VOID RESULIING JUDGMENT. As such is presented in Brown's current 11,07 application for relief; However, since the DISTRICT AITORNEY and PRESIDING JUDGE both of Harris County, Texas dogs got recognizes the UNITED STATES CONSTITUTION SIXTH AMENDMENT RIGHT TO COUNSEL, and/or the denial of counsel is the EXCEPTION to any procedural bar. See State's Original Answer and Recommendation. lt is through this motion for relief from the adjudication judgment where previous filed 11.07

habeas corpus, the District Attorney and Presiding Judge, same as the Sixth Amendment

QQ§§ not recognizes the defendant/appellant's rights to DUE PROCESS pursuant to the FOURTEENTH AMENDMENT. This HONORABLE COURT has always considered and recognized clear facts and circumstances from the OFFICIAL COURT RECORDS that reflects/reveals violations of constitutional rights pursuant to the Sixth and Fourteenth Amendments may result in any obtained judgment, A VOID JUDGMENT. Thereby, any resulting judgment from an 11.07 habeas corpus filed [AS IN BROWN'S CASEl to a void.judgment, is also considered by law a void judgment.`

Therefore, this motion for relief concerns violations of the Sixth.Amendment as presented in Brown's current 11.07 application, and therewith violations of the Fourteenth Amendment where facts and circumstances from the court records reflects/ reveals Brown was deprived of his liberty without the DUE PROCESS OF LAW. Thusj this Court according to justice and the fairness of justice, and the fairness of Texas'

Courts7 THIS HONORABLE COURT OF CRIMINAL APPEALS CANNOT REFUSE THE REQUESTED RELIEF

IN THIS MOTION AND IN BROWN'S CURRENT 11.07 APPLICATION. For reasons of the following.

I.

Brown/Movant moves and urges this Honorable Court to grant the relief sought in the current 11.07 habeas corpus filed in the Court under WR-33,336-11. Which is xfiled pursuant to the VOID JUDGMENT EXCEPTION TO THE GENERAL RULE. Thereby, as to this motion, granting relief from the adjudication judgment under cause number 10-83~095-CR. For it is clear from the court records, the reliance of the affirmed adjudication judgment as presented in the 11.07 application is clearly repugnant, and the affirmed judgment is clearly¢jnconsistent with this Court's holdings as to

what constitutes a void judgment..See §§§,664 and SPAULDING,687 S.W.Zd at 745.

II.

AS in Brown's cause where an arguable alleged VOID JUDGMENT is presented and

WHEREBY BROWN IS INCARCERATION FOR LIFE UNDER SUCH VOID JUDGMENT. Ihis Honorable

f Court should be compelled, as a matter of public policy, and for the sake of justice as to providing sufficient openly rulings [law] on the facts and circumstances from the official court records to ensure that State and Federal constitutional rights, or protections are give effects pursuant to the Sixth Amendment right to counsel and the

Fourteenth Amendment Due Process and Equal Protection.

III.

As presented in Brown's current 11.07 application where there are no proof of counsel appointed for him either on papers of his case, or on docket sheet following the granted State' s PDR. lt is presumed there was a denial of Brown' s right to counsel representation as being an indigent defendant/appellant§ However, it is without any doubts from the official court records as in Brown's direct appeal process that the State was allowed to challenge his successful reversal of trial court's conviction without Court of Criminal Appeals, or Tenth Court of Appeals nor 248th District Court (trial court) providing him with counsel after discretionary appeal was granted to the State. Brown as being indigent at the time and without the benefits of counsel clearly was unable to make any kind of reasonable decisions as to the law concerning the consequences of his reinstated conviction and innocence as to defend-

ing his liberty against the State resource. See BLANKENSHIPleS F.3d 312 at 317.

IV.

Brown/Movant moves and urges this Honorable Court to grant his current 11. 07 writ and/or grant relief according to this motion from the adjudication judgment that affirmed the trial court' s conviction. For reason(s) the APPELLATE level thereto the first direct appeal as a matter of right. See Texas Code of Criminal ANN. Article¥é 44.02. The right to Counsel, both at trial and appellate level, is recognized not

for it own sake, but because of the effect that it has on the ability of the accused

to receive a fair judgment. V.

Evidence from the court records indicates same as following the State's granted PDR. There are np_p£ggf_of counsel appointed either on papers of the case, or on decket sheet following a £gman§_by the Court of Criminal Appeals of the successful direct appeal reversal of trial courtis conviction. Same as following the State's granted PDR. lt.is presumed there was a_d§nial of Brown's right to appointment.of counsel representation whereby State law the Court of Criminal Appeals' r§m§nd of the conviction reinstated the appeal process back to the first level of the appeal. At Such Appellate level clearly entitled Brown to appointment of counsel due to his indigent status. See Tex.Code Crim.Proc.Ann. art. 44.02, 1.051

Also see EX PARTE LOPEZ,763 S.W.Zd 427 and JENNINGSZS9O S.W.Zd 809.

VI.

lt is arguable from the court records where Brown is incarcerated for»lifev under a VOID JUDGMENT§ OR VOID ADJUDlCATION JUDGMENT. The Tenth Court of Appeals, the Court that affirmed the adjudication judgment under cause number lO-83~O95-CR following the remand and reinstated direct appeal. From the evidence of court records, the Court clearly relinquished, or had forgo its responsibility as impartial JURIST(S). Thereby becoming advocates for the State, and thereby Tenth Court of Appeals unfairly ad- vanced ano argument on the State' s behalf in its OPINION_that affirmed trial court's conviction. See Texas Rule of Appellate Procedure 38.1(h) and 38.2(a)(1) and CODE OF JUDICIAL CONDUCT: Also see SIVERAND,89 S.W.3d 216. §EE E§HIBIT D PAGES 2 & 3.

v Evidence from the court records reflects/reveals §QI Brown nor State resubmitted brief concerning matters of the remand in order for the Court to make an impartial crediable and/or reliable affirm adjudication judgment. Evidence from the records: reflect/reveals Brown's failure to resubmit brief following the remand is the FACT

he had No coUNSEL REPRESENTING him at this critical stage [resubmittihg brief] of

THE REINSTATED DIRECT APPEAL THAT ACTUALLY DECIDED HIS FATE TO LIFE IMPRISONMENT. See T.R.A.P. 38.8(b)(1)(2)<3)(4). However, same as following the granted State's PDR. Tenth Court of Appeals on its own allowances, or initiative was allowed to challenge matters of the reinstated direct appeal without the COURT(S)' complying with the provisions of Texas Code of Criminal Procedure Article 1.051 as to the Court's obligation to appoint counsel for Brown to defend him concerning matters

of the direct appeal, or reinstated direct appeal which determined Brown's EATE. VII.

'%m elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." ARMSTRONG V. MANZO,BSO U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.EE.§d_€§(l§€§$.

CAREY V. PIPHUS,98 S.Ct. 1042 at 1050(1978) The DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT provides; "[N]or shall any State deprive any person of life, liberty, or property without the due process of law...." The Court repeatedly has emphasized that "procedural due process rules are shaped by the risk of error inherent in the truth finding process...." "Such rules minimize substantively unfair or mistaken deprivations of life, liberty, or property by enabling a person to contest the basis upon which a State proposes to deprive them of protected interests. ' '

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT COMMANDS _THAT NO STATE SHALL "DENY TO ANY PERSON WITHIN ITS JURISDICTION 'THE EQUAL PROTECTION'OF THE LAW," WHICH IS ESSENTIALLY A DIRECTION THAT ALL PERSONS, SIMILARLY SITUATED SHOULD BE TREATED ALIKE. SEE PLYLER V. DOE,lOZ'S.Ct. at 2394 (1982). . » .

ATTACHED TO.ThlS MOTION ARE EXHIBITS OF THE OFFICIAL COURT RECORDS IN BROWN'S

POSSESSION. AS TO THE ATTACHED COPIES OF COURT RECORDS. "IF" THERE ARE OTHER

OFFICIAL COURT RECORDS CONCERNING THE HEREIN STATED MAITERS THAT WOULD REBUI;

OR CONTRAVENE THESE HEREIN STATED FACTUALL ALLEGATIONS~ THEN THE COURT(S) ARE

OBLIGATED TO REVEAL THOSE RECORDS. AS TO ANY DENIAL DECISIONS FROM THE COURT(S)Q VIII.

As to the above UNITED STATES CONSTITUTION FOURTEENTH AMENDMENT. As it is Brown's

current subnitted 11.07 application filed in this Court under WR-33,336-11 dp§§

ngt argue Due Process as to NOTICE? nor does the writ argues Equal Protection. But rather, the writ argues that the Court of Criminal Appeals, Tenth Court of Appeals

and the 248th District Court (trial court) all deprived Brown's right to appointment ' of counsel representation by unauthorized acts/illegal acts, (errors). Thereby, the Courts were able to prevent, deprive, or cause Brown to be without the benefit of counsel thereto all critical stage of the appeal process following the granted PDR. Which such deprived right to counsel as presented in the 11.07 habeas corpus is sufficient to satisfy the requirements pursuant to the VOID JUDGMENT ECPETION TO

THE GENERAL RULE. But because this motion for relief from the adjudication judgment> that affirmed the trial court's conviction. By law, Brown would show from the exhibits (court records) attached to this motion VOILATIONS of State Law (STATUTES) that 'protects, provides and ensures the defendant/appellant with the FOURTEENTH.Amendment Due Process and Equal Protection. Which violations of these constitutional rights would render any resulting judgment, a VOID_JUDGMENT. Therefore, evidence from the OFFICIAL COURT RECORDS INDICATES: l

(1), Following the State's requested and granted PDR. The records indicates the

Court and/or Clerk of Court of Criminal Appeals fail§d to send ngti§§ of the granted PDR pursuant to TtR.A.P. 69.4(b). Records indicates the Court and/or trial court 'fail§d to appoint counsel for Brown pursuant to Tex.Code Crim.Proc.Ann. art. 1.051 (d)(Z) and Court fail§d to require Brown and State to resubmit briefs pursuant to v T.R.A.P. rules 70.l, 70.2 and 70.3 before remanding the cause. Each above stated state law or State Statutes are designed and designated by ` Texas Legislators under facts and circumstances as to a granted-PDR by the Court in order to protect, provide and ensure the defendant/appellant-with Sixth Amendment

right to counsel and Fourteenth Amendment due process of the law as to notice and

the opportunity to place before_the»court'any objections, and the equal protection

6 .

under similarly situated.

(2), Following the remand by Court of Criminal Appeals. The records indicates §§ §§f§f filed on Brown's behalf within 30 days after the remand. Thusy Tenth Court of bAppeals and/or Clerk faff§d to comply with the provisions of T.R.A.P. 38§8(b). Also, records indicates the Appellate Court and/or trial court failed to appoint counsel for Brown pursuant to Tex.Code Crim.Proc.Ann. art. 1.051(d)(1) and 1.051(c) where the remand reinstated the direct appeal. See article 44.02. And, court records indicates, Tenth Court of Appeals f§fl§d to require Brown and State to resubmit briefs in the court pursuant to T.R;A.P. rules 38.1(h) and 38.2(a)(1) before the Court affirmed the adjudication judgment under cause number 10-83-095-CR.

` Each above stated state rule or State Statutes are designed and desigated by Texas legislators under facts and circumstances as to any remand by Court of Criminal Appeals in order to protect, provide and ensure the defendant/appellant with the Sixt Amendment right to counsel and Fourteenth Amendment due process of

the law as to notice and equal protection under similarly situated.

IX.

,,

As To EACH ABovE sTATE PROCEEDING THEREWITH stair LAw oR_sTATE sTATUTEs THAT RE-

_ PRESENTS PRocEDURAL DUE PROCESS AND EQUAL PROTECTION As To NoTIcE AND A MEANINGFUL _oPPoRTUNITY To BE HEARD`IN A coURT oF LAW IN oRDER To DEFEND oNE's_INNocENcE. BUT, THE RIGHT To BE HEARD onLD BE, IN MANY cAsEs, oF LITTLE AVAIL iF IT DID NoT coM- PREHEND THE_RIGHT To BE HEARD BY coUNsEL. sEE PowELL v. ALABAMA, 237 U.s. 45, 68-69,

58 s;ct. 55, 64, 77 L.Ed. 148(1932). x.

In support of this motion for relief from the adjudication judgment- The United States Supreme Court ruled: "That a person cannot incur the loss of liberty for an

offense without notice and a meaningful opportunity to defend." Concluding that

these principles applied on appeal as well as trial. See JACKSON,99 S.Ct§ 2781 at 2786 (1979). .Under the facts and circumstances that are supported by the official court records. The stated above ruling by the Supreme Court is directly related to this motion for relief as to all the many failures thereto the Court(s) before Brown was deprived of his liberty without the due process of law§

This HCNORABLE COURT OF CRIMINAL APPEALS' integrity, and the fairness of Texas Judicial System would not allow this Court to intentionally or inadvertently overlook, misplace or disregard facts and circumstances from the court records that reflects/reveals Brown was imprison for life; or his fate was determined pursuant to a new state law [at the time] of rules that Brown never, as to this date, have had the opportunity to be heard as to defending himself from the new state law that actually deprived him of liberty and imprison him for life. Thus, as proof from the records, Brown incurred the loss of his liberty without notice and a meaningful Qppoi~tunity to defehd. THIS HoNoRABLE coURr~oF cRIMINAL APPEAis' CoMPLEI'ENEsS, ~ UNIMPAIRED CONDITION OF FAIRNESS AND SOUNDNESS THERETO ITS HONESTY AND SINCERITY, etc. cannot refuse Brown the requested relief in his current 11.07 writ of habeas corpus application and as to this motion for relief. Whereby all submitted EXHIBIIS of court records indicates the new state rule of law pursuant to the harmless error

rule standards that decided Brown's fate came into effect some gf_months after

Brown filed-the original APPELLANT'S BRIEF on direct appeal. Which brief by law; several months before the new state law of standards for harmless error came into effect, the brief accomplished the original reversal of trial court's conviction by the Tenth Court of Appeals. All court records indicates Brown filed the Appellant's Brief on MARCH 21z l983 in the Court of Appeals at Houston, Texas. On MAY..Az 1983; The Court transferred the appeal to the Tenth Court of Appeals at Waco, Texas. This Court of Appeals on DECEMBER 27, 1984 reversed and remanded the trial court's l conviction.

` ' 8

\

The Court of Criminal Appeals made the decision of the new state law for harmless

error standards under ALMANZA V. STATE in FEBRUARY of 1985; lt is this new law under

Almanza that were applied by the Tenth Court of Appeals to Brown's successful appeal reversal that actually decided Brown's fate of life imprisonment. Which rule came into effect after the-Appellant's Brief filed on direct appeal, after the original_ OPlNlON that reversed the conviction and after the State's PDR had been filed. §§ EE§§§ ON PAPERS OR DOCKET SHEET indicates Brown was sent notice of the new rule under Almanza, or notice that the new rule would be applied in order to determine the adjudication judgment, nor are there any indication that the court appointed counsel for Brown to defend him from the new rule of state law. l

This Honorable Court of Criminal Appeals cannot refuse this motion for relief from the adjudication under cause number 10-83-095-CR. For the adjudication judgment by State and Federal is a VOID JUDGMENT pursuant to the UNITED STATES CON$TITUTION

SIXIH AND FOURTEENTH AMENDMENTS AS PRESENTED lN THIS MOTION.

PRAYER

WHEREFORE, PREMISES CONSIDERED Brown/Movant can only pray that this HONORABLE COURT OF CRIMINAL APPEALS review the submitted EXHIBITS of Court Records therewith ‘an impartial view of the facts, circumstances to this case; therewith applicablea State and Federal law. Should this Court found other official court records that rebuts and/or contravenes the submitted exhibits. Brown prays that the Court would point these records out in order to settle once and for all, the herein stated factual allegation to a VOID ADJUDICATION JUDGMENT UNDER CAUSE NUMBER 10-83-095-CR.| Brown prays this motion would be granted, or the current 11.07 writ of habeas

corpus application filed under writ number WR--33,336-11.

Respectfully submitted,

§§§§:;?¢¢¢;;;Z;"QéEZZ//zt>¢*”?_¢»’/t EHH RAY BROWN

Service has been accomplished by sending a copy of this motion to the following

address: DISTRICT ATTORNEY OFFICE

HARRIS.GOUNTY, TEXAS 1201 FRANKLIN, sUITE 600 HoUsIoN, TEXAs 77002

sIGNED this 17th day Of February, 2015.

" /Mz/ KENNETH RAY BROWN #334618 JAMES v. ALLRED UNIT 2101 FM 369 N , lowA PARK', TX 76367

ccfiled:

SUPPORTING EXHIBITS SUBMITTED AS EVIDENCE

A. TEXAS COURT OF CRlMINAL APPEALS DOCKET SHEET PD-0182-85.

B. TEXAS COURT OF`CRIMINAL APPEALS' OPINION ON STATE'S PETlTl0N FOR DISCERTIONARY REVIEW.

C. TEXAS TENTH COURT OF APPEALS DOCKET SHEET 10~83"095?CR_

D. TEXAS TENTH COURT OF APPEALS' OPINION THAT AFFlRMED THE ADJUDICATION JUDGMENT UNDER CAUSE NUMBER 10-83-095-CR.

E. 248th DlSTRlCT COURT'S ORDER APPOINTING COUNSEL ON APPEAL. F. TEXAS TENTH COURT OF APPEALS CLERKFS LETTER.

G. TEXAS TENTH COURT OF APPEALS'.ORIGINAL OPlNlON THAT REVERSED AND REMANDED CAUSE NUMBER 10-83-095-CR.

R. APPELLANT'S BRIEF ON APPEAL---THAT ORIGINALLY REVERSED THE TRIAL COURT'S CONVICTION.

L. STATE'S PETITION FOR DISCRTIONARY REVIEW.

Respectfully submitted;

H§" case search Resulzs on case # PD-0132-85

Add to CaseMaif

f Case In_formation:_

case number: -Po~oisz-ss

~~ ~ né‘te wear _ " 7 ' ."2115/1985‘ * Casé Type: . . PDR . Stvi€= ` Brown, Kennet#\ Ray ‘ \l-l

' ;'Case Events:

` - Date` "_""-` " ` EventType` ' 4 7 ‘ § 12/12120'03 . com REQUEST PDR § ' -5/20/2008' . `ooPY-REQUEST.-»PDR» § 1 515/2008 .Mzsc,oocuMENT FoRAPDR - § 12/11/1987 MANDATE lssD § _ 11/2511937 oeiNonlsso - ¢~ § _ 2/5;1986 sosa/men ` __ .- -` " § 1/5;1986 » sET Foa susmzs k . § _ 1/2¢1986 _. _ No BR!EF FILED . » - Appenan: § 1212/1 935 No BR;EF Fu_ED state § . 1012/1985 E)GRAREMARKS ' § 1050/1985 P:JR olsP _ ’ j State , § 9;25/1985 woRKuP coMPLETE state § 517/1985 ' 4404H BAIL _ 7 Pro se § 5/6,'1985 ms BAxL miss , Pm se l § 3/19/'1935 No REsPoNsE ntsb ' » Appaan: §§ 2}’15!1985 f 'PDRHF!LED ‘ ; State Pmsecuii'ng Attumey "C`afé?`rid`ax"s':""*' , k `” ~“ " __ same ~ ' '-':'F¢alehdéélt§pe- " -» - §` , 1201/1987 ` ' " sToRED' Parties: 1 ,_ Party ‘ . - ~ Party Type ' § ' Bmwn, Kennem say ' Appéce\f{wds)prpe!*ani-- § ’ sYATE oF nims state

Court of 'Appeals Case Information:

coA case Nu;_nber: 10-83-00095~CR coA~Dispasmo¢i: _ ». 4 _ opinion cite: Rev & Rem\12-27-84 \ \ `\ \`.

NO. 182-85, v. ' _ v ' unnic£aw€ulstrict or rexas

THE sTATE 012 TEXAS, , (Harr~is:county) , ;;_,

'Appellee A\ Q/fl’ 1};:§1;;; §L,H 15 ' `

PINION 'ON STATE'S PETITION FOR DISCRETIONARY REVIEW

The jury was charged on nurder'an&;£h§¢iesse§;ingig§g; ;; ;;;i; offense of voluntary manslaughter. AEter“deliberating,vthe~gury §a:_ g

found appellant guilty of murder. Bisdpunishmentrwenhanced-by_a;e---_ w;

|-1l i.]

‘_On_December 27, 1984, the Waco Court;o E~Appealsfreve ed :§i §§5@ 'appellant's conviction after finding§§pg§§g§§tal@errc&£§& th&:z §in:ig jury 'charge. Specifically, the appeal;s.;;<§O\_l:r;t;¢;;;r;e,.lyi_:gg;--zzrr.»;G_<;>_b_a_'§>: r~;:»;z.z;--"-_:_-z rubio v. State, 675 S. W. 2d 749 (Tex_ Cr;App.:l984), foun&¢theems:: ;¢; ac asgsw§e£ecti@ because it failed to require the state to - disprove the lack of sudden passion in the paragraph of the

charge which applied the/law of murder to the facts of the case.

cber~BG:lJSBS: we granted the State' s petition for discretionary review to consider the issue.- Since the Court of ` prpeals handed down its opinion in this_case, this Court decided Aimaxiza v. state; 686 s.w.zd 157 ('fex.cr'.App. 1,985)(op,inion on 'Rehearing). In Almanza, we'set out tests to be used.when there was_ either objected- to error or llnobjected to error» in the court's charge to the jury. See also Castillo-Fuentes v. State,' 707 S.W.Zd 559 (Tex;Cr.App. 1986); Lawrence v. State, 700 S.W.Zd 208 (Tex.Cr;App,,lSSS); Moore v._State, 694 S.W.Zd 528 v_('Z_l‘e);.Cr.A___p,._1985).,,,,.,_____...1,,. A k

Because the Court of Appeals did not have the benefit cia

Almanza when it revie ed appellant' s case, we will remand this

.cause`to that court so that.it may.apply Almanza to appellant s.

`Brown - 2

4 ?T ””””””” enntention concerning the allegea `unobjected§?to¥HerIor€ifp ?the-e§? ;H

: court's chérgei* Shenks v. State, 7t&zS:W§ZdEBSSEJTex§Qn£Kng

1986).

w | H:h Hfls

"”It is so otdered; _e n ) vPer Curiam

(Delivered November 25, 1987) ‘=H;eev=;ee _v-“-e~

En Banc'

Do Not Publish

Presiding Judge Onion and Judge Teague dissent to the remand

‘ F',";}"-`F~v _

¢..o:E.:.”_~:". _. '1_:

Permaueot Record PreSBWB¢I%FEN-m BIKBUIRIE)

- Amount of Appea| Bond: ` Y€$ lncarce`rated

11 §§

couRT oF APPEALS " SUPREME JuchlAL DlsTRlcT--___

'Punishmer_lt Assessedf` L`1_1:e " _`

»» _ v:__\r__\r__~

- » _-

M11rrder ._ _~' `-

_Type' Ca§e/Offense: ~

THE STATE OE TEXAS€{"

' -L": ;’ " _ §§;.r'£{.b__ Numb;.~`.f.§f_.j __ __ `"'CAUSE N0'10~83-095-CR CCUNTY Harris' Tr_ial-Judge: _Henry K. Oncken _X_Transfer Orj _ Pmceedin Tl'ial COUt'f. 248th D`1_$t1"1Ct PART|ES' n w l 'g -g " Tnal Court NL|mber: 348, 455 ~#~ Coun:Reponen ’ Myrna Hargis KENNETH RAY BRowN contents o§ _Rec_ord- " Ye$ Transcript §Appel|'ant E _______ _~v_s_. __ _ Y:S S Of F_a¢_'_¢$_ `_YS$__AP_F_>_€"¢€_§_!

:§S Exhlblts § '_" § §

Appea!s> Consolidated Under This Case:

APPELLANT/THE APPLchNT; §

D ' Percy F.or‘eman

_ _Foreman & DeGeur~in

Fann1 n, Su1te l-l-H-_z»"§@

: _Houston, Texas "7‘?'602_770/?

Rl§na"ld G. Mock rchett° a Mock

Houston, Texa$ 77004 3_203 Aust1'n St. _

ATroRNEYs ,¢_/ _, APPELLEE/THE sTATE:

/71>\D

~- John B. Ho1 mes, dr _ » - - D1str1ct Attorney -~~-~~--»~- ~~ 201 Fahnin, Suite 200

_-Houston, Texas 770_02_

` _\J_, $1dn¢y C§@w~Tey, Ass..~t_;.'? 1313’¢y _Atty`

:_\_

L.C"S/-

ear 7]`!!-'~

____- __ _ t _, __»_~_;»¢ " ~"~MEMoRANDuM ENTRlEs'

Date

__ ' _ _ 1 - ' § ::: DATE FluNGs AND oRDERS . _ _ ~ _ M'NUTE _ PARTlEs

"NOT|

__ ._,ENTR_Y _ 61" me o ' me o _ ' or

t of Facts 7 Vo1umes Mtn for Ext of Time to _ e Mtn for Ext of Time to F e or t.o me _ r' men ant s

._S a__

n r scre- 7 ew y ubm1 . ocket end_ 1a

AFFIRMEo 21._dANuARY 1988 , No. 10-83-095_cn a Trial Court ' \ ”'\D # 348,455 » é/}/A <é€ ` m ms ;::,-_-'-`- couRT oF ApPEALs ron ms

TENTH DISTRICT OF TEXAS AT HACO

*************

KENNETH RAY BROHN, _ - , .. _ Appel l ant v. .

THE sTATE or TExAs, . ' ; Appellee

************* '~-

From 248th Judicial District Court \ v Harris County', _Texas

\,_;_¢__ - ************i b-d _

' o P 1 w 1 0' u * * * * *

v This is an appeal by defenth Brown 'from conviction for murder for

f - which he was assessed life imprisonment in,` the Texas `Department of

.Corrections; and is before'us on remand from our Court of‘€riminal Appea'l;s'.

On original submission in this court we reversed and remndsd the case, sustaining defendant' s ground 2, that the court' s charge was funda~ , l

mentally defective for failing to require the State to disprove lack of

sudden passion in the paragraph applying the law of murder to the facts of

the case, am defendant and the state agreed that columbia v. - s_tate,

_675 S.W.§d 749,_which was pending on rehearing in the Court .of Criminal'

Appe_als, would be dispositive of the above ground of error, if the Court of Criminal Appeals denied the State's mtion for rehearing in such case.

The Court of Criminal Appeals, on September 26, 1984, denied the State' s motion for rehearing, and we reversed and remnded the case, sustaining ground 2. "

The State applied for a petition for discretionary review which our com of criminal Appeals granted and nn rlaer 25, leak rennnded the

case to this court, pointing.out that at the tim of our disposition of the

case, we did not have the benefit _nf_ the Court of-- Criminal Appea-ls decision

in Alnanza v. State, 686 S.H. 2d 157, and mandated this court to apply`

` _l_l_______llnanza_ to "appel lant' s contention concerning the unobjected to error in .the- -courts charge".

_A_l_n_l_a_n_z_g_, supra, holds that if no proper objection is made at trial to an error in the jury charge the accused wst claim the error was "fundamental", and he will obtain a reversal only if the error is so egregious and created such harm that the has not had a fair and impartial

' trial, or in short that there was egregious harm; and that ham must be

determined from the entire record._ To the same effect i_s__Kucha v. State. In the instant case the evidence of guilt is ‘ovemhslming. " Defendant

l "“'*'~defended-*-at*-“tria"~l:"on`"-‘the ground _of self""'ds"fense'.v "~The recordreflects that

defendant purchased marijuana from deceased for $30 -_on credit; that deceased demanded defendant pay him; that defendant asserted the marijuana was bad and wanted to return it rather than pay; that deceased refused;

that smeone shot into deceased's `\vindon and decease:i accused defendant of l being the person who shot through his windou, but accepted that defendant

`i

did not do it when he compared defendant"s shells with the ones he‘ had -'

picked out of the wall; that deceased still demanded defendant pay him the $30; that on the morning of the shooting deceased came out of his apartment

carrying a shot gun; that defendant came out of his apartment and saw_

deceased with his shot gun, and went back into his apartment and got his

_ pistol‘; that defendant came»»~~back~ out__ _and__:_;§hot____dec__eased; that deceased dropped his shot gun; that defendant picked up deceased's shot gun and shot _it_ at deceased, not hitting him; that deceased then rah; that defendant

then followed deceased and shot him again with his pistol. - ' we overrule defendant‘s ground 2 and affirm the judgment.

AFFIRMED

DO NOT PUBLISH Chief Justice

_Hf§j% _ _ f_ _ MWMW_ /j;;>

31,__ ~~c\ _\.;. _…m_

' \UPER’s oA'rH oN APPE_»""x

. _ ,/ - 1 CAUSE NO; e.__%_“i\_§”>"\_§>_ oFFENsE; K\\\-\§\\)\ THE sTATE oF TEXAS ' 12 §§LA/msrnlc'r COURT vs. oF

\MM RC~"\ \:)\Jd’~§'\ HARRIS COUNTY, TEXAS

TO _THE HONORABLE JUI§.§ oF SAID CoURT- Now CoMEs N\N\\§~R/Q\ §§@~1§\@¢&\ ,Derendant in the above styled and

n\lmbpred r\al_]$e_and .re Spentfnll.v petitions thé§\ rf_ te_annr_unf .Cnun$nl__ fr\ repr:l:cer\t_ him. ln Said felgn\l __

__ `~. ...-.. - rvr .... v

cause and would show othe Court that he ls too poor to _employ counsel, on appeal.

Defendant further states under oath that defendant is without funds, property or income; that because of his poverty he is unable to. pay for a transcript of the evidence which is necessary to be filed with the'Court of Criminal Appeals of the State of Texas;

WHEREFORE, he prays that the Court appoint counsel to represent him on appeal and that the Court direct th_e Court Reporter to prepare a statement of facts, as provided by law, in question

and answer form, for use on appeal. %/ ,>¢~///M

DEFENDANT

sUBSCRIBED AND sWoRN 10 before me, this `;\<)`\\dny_of W ,_

19 tel § ` _ 529 § DE_§`UTY DisrRlc’T cLEs`_) 5_ _DISTRICT coURT 6a 410.]__’ 91 11 ' HARRIS COUNTY TEXAS _W{$S)_ __90°~;:`;` "£:>

pOIN'I`ING COUNSEL ON APPEAL

- ' `:" \%’\->`3` 19% l,-it- appearing to the Court that the above n§in§d defe nt has executed an affidavit statinAg that he' ls without counsel and is too poor to employ counsel, it is orde ed that the attorney listed below is appointed to represent the above named defendant 1n said cause, on appeal.

@Ql\ w®'\_\§ ;"\§

ATTORNEY LQ §§ Q\ )§ed~»~\.n\>~h’\% (D`\ D`CK l' ADDRESS Q»R\ §§ _77@@§\ CITY _ STATE ZIP

};b~a©ek

l 1

ORDER TO PREPARE STATEMEN'I` OF_ FACTS ON APPEAL

This the \\Q§§\ay 'of ‘ W 19 after hearing .

testimony on the above affidavit and it appearing that the defendant ls entitll:d to the relief prayed for, it is _ORDERED that the Court Reporter of this Court prepare a statement of facts in question and _ answer form of the testimony in said cause. lt is further _ORDERED that the clerk of this Court mail __

a copy of this Order to the Court Reporter: ' \"

'_ __§:\_¥__`_Dlsrk'lcr COURT- -,'H_ARRlS COUNT_Y,TEXAS

- DlsTa\oT cl.ERl<

"'_.-.'J ".." _

“Tam any ~ ' ~ 531 Wa$§mgméy&l{§l€, gingng . ». _, _*.'_ .. ,, ` - ~ ` ' "Wacg> Texas767?§`132?'5.~_-:‘?¢=*-"5}2111')~}2;93. l ‘ . Bill Vmwe , z - ' . Ph<_me; (254l )757-5200 w wya`:’~z::£Z$i _) 757-2322 1 _ b v '_W

`F€@€R€yw , _ 1 § ,

mammals ~ . ,' -1697§M930R¢ _

Re':~ wof:APpealsNizmber: 10-§3_00095_€1; '”':_ Trial€om'z€aseNmnbez-: 348,455 '

Slyie: K=!M Ray m _ 1 l ':_'.1_.:_;__ v. _ _'

;r:n;:_.

,'.:

.. __ _;_.:\! _,':__ r=:'l-‘-"*'~.Tlr-'- `~‘5';2‘ §___';_\_z;'_¢ o ;W mnm_.` .... H___=. ¢

. _»we: : . .. mom~» --=,~-.-¢¢-.r~_‘ ;-.'-_:'_-¢=. _".\_¢a:'_.\l rrur'_`urn ga `. nan u ~ - "’ -~ _; ~_» ..

REVERSED § REMANDED 27 DEcEMBER 1934v 'No._lo-és-ogs_cn- `

':;,§§;“. ' '- &XASS\.’?` 6 '_

-4

w_.l

#

_IN THE couRT or APPEALS . l FoR THE: _ v TENTH.$uPREME*JunIcIAL DISTRICT oF TExAs ` AT wAco "

**~k*-ri#..~k**'~k*-k

- KENNETH RAY BRowN, , "F ' f ' ' ' Appe]iant y. -

THE STATE OF TEXAS,‘ - Appeiiee

iii>'ci<‘*'*'k‘k*i**

`From 24Sth audi¢iai nistri¢t.court ` Harris County, Texas

0 P l N I-O N * * * f t This is an appeai by defendant Brown from conviction for murder for which he was asses$ed iife imprisonment in the Texas Department_of Ccr' rections. Appeiiant appeais on 3.Grddnd$ of Error. ' Ground.l asserts the indictment iS fundamentally defective in nqi aiiéging a generéi cnipabie'denta]'state in the second par;graph. This does not render the indictment defective, LugO-Lugo v. State, Ct. Crim. Appis, 650 S.N.Zd 72. §r€wr@ 3 i?»nvcrru?ed. Ground 3 asserts error in the charge permitting Cdnviction nn iess pr:ci than required by the indictment. `The charge uses the phrase “Shoot at“ whereas the indictment states “shot“. There was no objection id the charge, and the comn]aint was

»~ -`.~.`

V.@;

Moreover, the inclusion of the word "at" was not error calculated to injure the rights of appellant nor was trial rendered unfair thereby- pierscn v; state, 644 s.w.zd 31 (Tex,npp.--Houston [14th oist.] 1932, review ref‘d). we find no error. v

Ground 3 is overruled.

'Sroend 2 asserts the court“s charge is fendamentally defective for

»failing to require she State to disprove lack of Sudden passion in the

paragraph of the charge when applying the law of murder to the facts of the case. t The appellant relies on Cobarrubio v. State, Ct. Crim. Appls, 675 S.N.an 749, pending (at time of-filing of appellantls briefj-on-State’s motion to grant leave to file motion for rehearing, in support of his contention that the complained of portion of the charge was iundamentelly EFY`OF?€OUS. _ l The State in its reply_briei states: "The final decision-of the Court of Criminsl preals in such case will be dispositive of this ground of error$‘ y " l _ n n j n *Sn September.Z$,'lSS¢, the Court of Criminal-Appeals denied the tate's motion ior leave to file motion for rehearing in Cobarrubia. _ Ground 2 is sustained which requires a reversal.

REvERsEp a REMANpED

` FRANK G. MCDONALD 00 NUT PUBLISH _ _ `Chief Justice

fe 10_-83- 0 9 5 -CR

THE COURT OF APPEALS FIRST SUPREME-JUDICIAL DISTRICT

`HOUSToN, TEXAS é\/l/Acié["(_\`

KENNETH RAY BROWN, Appellant,

vs; ~ : `~APPEAL NOL 01-82-00453~CR

THE STATE OF TEXAS, Appellee.

1 APPELLANT'S-BRIEF ON APPEAL

b

Appeal from Cause NO. 348,455 in &he 248th Judicial District Courtl Houston, Texas g

FOREMAN a DeGEUREN Percy Foreman ‘ State Bar NO. 07254000 /' . 609 Fannin, Suite 1111 Houston; Texas 57002 (713) 224-9321~§

""`j§IE-T¢_____ BONNEY a MOCK couRToFIZ\pI,S}ALS Ronald'G. Mock , TEHN§FMH;WRHS ‘ State Bar NO{ 14@42700 ‘ E '?: `609 Fannin, Suitp 2129 MAy 41983 Houst»on, Texas j77002

(713) 223-2660

ROBERT '§ G'W“T“'CERK _ ATTORNEYS ON APREAL ONLY

I N D E X

Pagez

TABLE OF AUTHORITIES......w.............,...;;..... ..... ii sTATsMENT oF THE NATURE oE THE CAsE..........¢.......... l21 sTATEMENT oF_FACTs...-.....§.................L.......... 2 GRoUND oF ERROR No. l;.;....s...,.......-....¢.......... 5

The conviction should be reversed because the

indictment is fundamentally defective in not

alleging a culpable mental state in paragraph

_twO. GRoUND‘oF ERRoR No. 2;.......................§.........; 6

jury charge is fundamentally defective in that

it does not place on the State the burden of

disproving the lack of sudden passion in the

paragraph of the Charge applying the law of

murder to the facts of the case. cRoUND or ERRoR No. 3....;...,...............L.......... 9

The conviction should be reversed because the jury charge is fundamentally defective in that

it authorized a conviction if the jury found

from the evidence that Appellant did, with intent to cause Steve`L. Binder serious bodilyiinjury, shoot at Steve L. Binder, whereas the indictment alleged in paragraph two that Appellant intended to cause serious bodily injury to Steve L. Binder and that he shot him with a pistol. '

CoNcLUsIoN AND PRAYER.;........;............,........-...1 10

t /'# '"\ `;)z 1 »i

NO. 10-83#095-CR

TO THE COURT OF CRIMINAL APPEALS

oF THE STATE.oF TEXAS

KENNETH RAY BRowN, Appeliant V.

THE sTATE oF TEXAS, appellee Appeal from HARRIS County`

`ir~k'k**'k

STATE'S lPETI'I'ION FOR DISCRETTONARY'!REVTEW

TENTH SUPREME JUDICIAL DISTRICT O:F TEXAS

l

HH.ED lN

WUTMGMHMLHEMS FEB 15l985

.Th¢md$ -§-Gwe, C§erk

AND " BRIEF IN SUPPORT THEREOF l

****'k'k

FROM THE AT wACO

ROBERT HUTTASH¢ c State Proseouting Attorney Bar I. D. No. 10363000`§

vALFRED WALKER 5 First Assistant State's Attorney Bar I. D. No. 20693000

P. o. sex 12405 Austin, Texas 787ll 512-475-4581

FH£E)B§ coURonAPPEALs Tenth District-Waco, Texas

rea : 2335

sonam <;. wAns, cLF.RK/z

'

II'¢

SQBQEQT INDEX

Statement of the case.........r........., ....... ......,l

Statement of the Procedural History...... ...... .......°2 Questions for Review....................J.... ...... ...12

(l) In a murder case, when the issue of voluntary manslaughter is raised, i.e., when the issue of whether the defendant was acting under the immediate influence of sudden passion arising from adequate cause is raised, does a trial judge commit fundamentgl_errgr by failing to submit that issue as a part of the State s burden of proof in the paragraph of the jury charge which applies the law of murder to the facts?

. (2) Should this Court's decision in Cobarrubio v. State, 675 S. W. 2d 749 (Tex. Cr. App. 1983, rehearing denied Sept. 26,1984) be overruled or at least modified and clarified with respect to the 'fundamental

'error' aspect of the case?

`(3) »Should this Court's decision in Jenkins v. State, Nos. 64,000-64,004 (Tex.Cr.App., Feb. 16, 1983,

L§h§§;ing_pending) be set aside and/or overruled?

ReaSOnS for Review. . . l . . l . . l . . . l . ° . . . . . . l- l . . . l . l ' . . ' l ’ l3 Argument and Authorities...............................4 Prayer for Relief. I l I l ‘|I l . 1 I l l . l - . 1 l .. 1 . l l . l . . l . l . l . .-¢ . 04

Certificate of Service .................,..............6