Butler, Quincy Deshan

Opinion

PD-0129-15 COURT OF CRIMINAL APPEALS COA. No 10-13-00430-CR TRIAL No. 12-00472-CRF-272

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QUINCY BUTLE.R vs THE STATE OF TEXAS VED APPEAL-HRQM..-TV Cause No 12-00472-CRF COURTOF CR/WALAPPfls

THE DISTRICT COUffiT BRAZOS COOHfTX,TEXAS ^AY 11 2015 272nd Judicial District

Abef Acosta, Clerk

MOTION FOR REHEARING(79 .1)

TO THE HONORABLE JUSTICE OF THE SAID COURT: COMES'' NOW QUINCY BUTLER .MOVANT IN THE ABOVE ENTITLED AND NUMBERED cause by and through PRO se ,and files this Motion for Rehearing pursuant ( 79.1),and in support thereof movant would show the court as followings:

THE Court of Criminal Appeals has held the court's jurisdiction is not unlimited when it comes to protecting thehrights of the citizen no matter what walk of life he or she may be from. McBetiii vs Campbell, 125 s.W.2d 118,122 (Tex.crim.app.1929) . Appelant certify said motion see T.R.A.P 10.2 which is also supported by record Authority and Argument to obtain relief. Kindlejr vs State 879 sw.2d 261,264 (Tex App. Houston 14th Dist_ 1994.)This court has held that when our Code of Criminal • Procedure has been overlooked and disregarded we will set aside ..conviction we will always have an attentive ear,Parker vs STATE 795 sw.2d 934,935,937(Tex App,HOUSTON 1st Dist 1988)

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MOVAT WAS DEPRIVED OF HIS RIGHTS AS SECURED AND GUARANTEED under the 6th amendment to an impartial"jury trial" and to be properly informed of the nature and cause of the accu sations against him and violated his 14th amendment right to due process when this court failed to acknowledge that the trial court abused its discretion in denying movants "IMOTION to QUASH indictment .Movant challenged the ©onstitlitional ;bMt test required for a valid indictment, and the elements of r: -•<; the constitutional testeltrequired for a valid indictment,and i•--.••- dl^entT^fthe offense and every fact or circumstances nessary to complete the discretion thereof alleged therein cbb€.-.i charging instrument, and the trial court's denying the ,i "Motion to Quash the Indictment" as the Texas Code of Criminal Procedure illustratively defines defects in the .•••.;. substance to include "That it contains matter which is a legal defense or bar to prsecution •"

And the terms set forth in the second paragraph charging movant with aconduct of being reckless is misconstrued,imper missible and misdirecting to the meaning expressly provided by Texas Legislative intent.In the instant case ,thus reveals constitutional error that is subject to a harmless error re view, and The Court of Criminal Appeals should grant this ,: Motion forUReheaiing of this Court order Ref using.jp .D .R 4-1-15,and movant urges the court to issue an order to re/o verse this wrongful conviction.Futher the challenge to the legallyuinsufficiifent evidence should have been reviewed "de novQfl . Ih accordance to well established law established by the U.S. Supreme Court as well as The Texas Court of Criminal Appeals, a grand jury indictment must set forth each essential element of offense,and to be valid an indictment must charge positively and not inferentl^/but with clarity and certainty so that the accused may know with precise notice of what he is defending against .When a statute • •., :.,,., defines the manner and means of a commission in several alternative ways, a_n_ indictment will fail for lack of_ specificity ^f.i^ neglects to Identify which of the statutory means it_ .-.oV.-. ,,.

address.State vs Edmond,933S.W.2dl20,128(Tex. Cr.App.1996) _(_"WHERE A CRIMINAL STATUTE POSSESSES STATUTORILY_DEFINED, ALTERNATIVE METHODS OF COMMITTING AN OFFENSE, THEN; UPON TIMELY/REQUEST,A DEFENDANT IS ENTITLED TO AN ALLEGATION OF WHICH STATUTORY METHOD THE STATE INTEND TO PROVE .").

The Court of Criminal Appeals intended to create a bright-line rule in Edmond . That rule is:"WHEN A STATUTE DEFINES THE MANNER.OR MEANS OF COMMITTING'AN OFFENSE, AN INDICTMENT BASED UPON THAT STATUTE NEED NOT ALLEGE ANYTHING BEYOND THAT DEFINITION "Edmond ,933; :S .W .2d •at 129. .

In ith'S instant case the charging instrument defines part of Deadly Conduct and part of Aggravated Assault definition in the indictment ,and fails for lack of , oci .i specificity. The <20t*i<:)Gotiir&:op£oAp^AlS stated : THE TRIAL ATTORNEY. STATED THAT THE STATE FAILED TO S TATE^A CUL-PABLE MENTAL STATE AND APPELLANT'S APPEAL ATTORNEY ASSERTS THAT THE INDICTMENTKALLEGED THE WRONG CULPABLE MENTAL STATE.

The 10 th Court of Appeals failed to address the fact the indictment was void as a whole if it did;'ii©t give a culpable mental state of if it gave the wrong culpable mental state which prejudiced the defendant and violated his due process rights guaranteed unider th 14th amendment.

The state charges the deadly weapon as follows:...to-wit:

firearm,which in the manner of its use or intended use was capable of causing death or serious bodily injury..."

This language is not necessary and was not part of the statutorily definition of deadly conduct therefore violating establish law in Edmond supra.

Thiei U.S constitution states that : Imi all criminal -.o;io prosecution,the accused shall enjoy the right to a...public trial,by impartial jury... and to be in formed of the nature and cause .of the accusation. [U.S. Constitution 6 Amend.]

In the instant case the movant was entitled to a specific allegation of the manner and means of committing the alleged offense in which hev/was charged.

The £ourt of Criminal Appeals has held that an accused cannot ^£L "intentionally or knowingly",and act reckless at_ the_ same time in_ the same instant, [ALONZO y_s_ State,353 s.W. 3d 778(Tex Crim.App 2011)

..and because of such denial of constitutional protection and the State's failure to correct the invalid and fundamentally defective and void indictment when having an opportunity to do so, this court in all things should grant this Motion for Rehearing and Reverse the trial courts conviction and punishment and remand for further proceedings.

2)

In reviewing a legal sufficiency challenge to the evidence Tex. Code Criminal Proc.Ann.art. 1.14(b) provides that certain errors are waived if the>re is no objection. In COQK vs State 902_ S.W-. 2d_ 471,476 (TEX, CR-.App .1995), the Court held to comprise an indictment within the meaning of art,V-.&12 of the Texas Constitution,the document must charge:1) a person(2)with the commission of an offense. In the instant case the -trial court did not have jurisdiction to prosecute this instant case by lack of clarity and specificity to identify the penal statute under which the State intended to prosecute.

The Trial court has denied movant his Sitcth Amendment j ,r, right to compulsory process " is in plain terms the right to present a defense, How could movant present a defense when the fail to give adequate notice of the offense in which the State plan to prosecute after timely request?

3 .)

Double Jeopardy

Movant was tried 3 times for this same offense in violation °'; '•"•<>1--' r.!Op:-:;-y ..wjo :.:w; :'-.;.ii;o i. di. \;. i.,,. I. y -it?!? amendment guarantee .The Trial court also initial indicted movant on a Agg Assault then subsequently indicted movant on DEADLY CONDUCT from the same event as th AGG ASSAULT which was the same identical act by the charging instruments, Luna vs State 493 fr.W-.-2d 854(Tex . Cr . App^. 19 73)

4.)

The-Trial court erred in denying mistrials. The State several in flamatory statements, and the three rern^t- were denied after cumalative effect of all the inflamatorv remarks by the State and there witnesses. ^^matorv ni<;pD"r;n9 closing prosecutor J/ASON GOSS SAY THIS IS A MURDER are aivenV "1Strial J» requested ,denied and instruction are given to dis-regard then after instruction are aiven PROSECUTOR RYAN CALVERT gets up and says thi L a"u?der case theemi„ds If thehad une minds ol ^ again.

the juror's inSt^tions the prosecutor tnfla^d He rephases his statment by putting if in front of the original statement this is a murder case after the said "I HAVE COMMITS MURDER ON THE RECORDS. oart oA°hanthWaSSentenCed part f°r attemPt of the charging instrument. murder which was not This was also prosecutorial misconduct and misrepresented facts in evidence and disregarded instruction the Judge had 2XrSrW?r^l"8Ulted " V1°lati°n « 6thAmendment nght to In evaluating whether the declaration of a mistrial was warranted, in the instant case, the Court of Appeals,as well as the trial court failed to apply inflexible standards, due to the infinite variety ,-of circumstances m which a mistrial arose and" should have been granted.The prosecutor misrepresented tacts in evidence amounted to substantial error because doing so profoundly impress the jury and had significant impact on the jury's deliberations "Donnelly vs Dechristofore 416 u<.S *$?/($ fr^ct I868_, 40 L-^ED 2d 431 (1974)-.

Movant's U,fr. Constitutional right' s6th, 5th ,14tii<* Ala^r.

( amendment )

and the Texas Const,and Federal right's were violated and in conclusion movant prays this Honorable court by and through the interest of justice grant this motion .

WHEREFORE,PREMISES CONSIDERED, the movant prays that this Honorable court will grant this the MOVANT'S MOTION FOR RE, - HEARING . ~

RESPECTFULLY SUBMITTED QUINCY BUTLER #01899541 Eastham Unit 5 DORM -36 Lovelady ,TX75 851

CERTIFICATE OF SERVICE

I certify that a true copy of this Motion for Rehearing was served to the Clerk of the Court of Criminal Appeals on 5-5-15 to '.B.O.JBOX 12308

Capitol Station,Austin ,TX 78711 Y " * MAIL

RESPECTFULLY

QUINCY BUTLER

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COURT OF CRIMINAL APPEALS

'( COA No. 10-13-00430-CR Tr, Ct. no. 12-00472-CRF_(2£7(2n«S PD_0129-15

Second request for extension of time to "•;."..:•: £ile<.;a MotibmhforiRehearimg "

THE* HONORABLE JUSTICE ;OF SAID COURT

COMES.-MOW QUINCY BUTLER .PRO ,se .appellant ..requesting, for an additional, .extensi.on.:.of, time .>. , . ..,.,... -,.. •, , .

Movant would..show-..as .follows-:.

1) -This court granted the extension of time on 4-20-15 but movant just was notified that his first request was granted on 5^4-15 and its due 5-6-15.

2). Movant would show that this court sent movants ;

white card notifying him that the request was granted went to the wrong address and was forwarded to movant upon late notice. Movant is located at Eastham Unit and no longer at Allred Unit and this court had already been.notified of his new location -2665 Prison RD 1

Lpve.lady ,Texas 75851

,. WHEREFORE PREMISES CONSIDERED appellamit prays tBiat this Honorable court acknowledge the facts above and grant movant 15 days to sumblt his Motion for Rehearing by May 21,2015 RESPECTFULLY' SUBMITTED

QUINCY BUTLER #01899541

Eastham Unit 5 Dorm-36

Prison RD 1

Lovelady,75851

CERTIFICATE OF SERVICE

I,certify that a true copy of this Request for extension of time has been served on the Clerk of the COurt of Criminal Appeals, P.O.Box 12308,CAPITOL STATION,AUSTIN,TEXAS 78711 by U.S. mail on 5-4-15

DECLARATION

I,QUINCY BUTLER #01899541 ,movant in the above and foregoing Request for extension of time to file MOTION FOR REHEARING,, and to the best of my knowledge and belief it is true and correct .

This declaration is made pursuant to section 132.001,et seq, of the Texas Civil Practice and Remedies Code,on this 4th day of May,2015

QL_

MOVANT PRO se

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