Gonzales, Jose Iii

Opinion

PD-0179-15 RECEIVED IN MR JOSE GONZALES III COURT OF CRIMINAL APPEALS #1832029 k'nw JAMES V. ALLRED UNIT OV 24 2015 2101 FM 369 N.

IOWA PARK, TEXAS 76367 ®ta. Clerk 11/19/15

TO: ABEL ACOSTA CLERK,

RE: MOTION FOR REHEARING AND REHEARING ENBANC SUE SPONTE

CASE NO. PD-0179-15

Dear Sir, enclosed is my motion for rehearing and rehearing enbanc, in the above-mentioned and entitled cause. Please:"£ll:e-"with t~h3e Court. Thank You.

Sincerly, Mr. Jose Gonzales III

CC: File IT PD-0179-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

JOSE GONZALES III, Petitioner,

V.

THE STATE OF TEXAS, Appellee.

PETITIONER'S MOTION FOR REHEARING

IN ACCORDANCE WITH T.R.A.P. RULE 64.

TO WIT:

Comes Now ^ose Gonzales III, Hereinstyled Petitoner, files this motion for rehearing in the above-mentioned and entitiled cause.

•ART. I.,

Petitioner urges the Court that: Trial court erred in allowing Petitioner to shackled in violation of U.S. Const. Amends 6th and 14th. Trial court infringed upon Petitioner's persumption of innocence, and counsel was ineffective for not objecting to Petitioner being shackled, thereby procedurally defaulting Petitioner's claim. ART. II.,

The State committed double jeopardy when it prosecuted Petitioner for multiple burglarious entries where there was only one unlawful entry and the the gravamen for burglary is the unlawful entry not the complain ant. Where for Petitioner was sentenced twice for one unlawful entry. ART. III.,

Ineffective assisitance of counsel: The court of appeals erred in not adjudicating the ineffective assistance of counsel on direct appeal in opposition of Trevino v. Thaler, 569 U.S. (2013). Because of the deep entrenched culture of not entertaining ineffective assistance of

counsel Motion Cont:

on direct appeal by the Texas Appellate Courts, said opinion by the Supreme Court is still alien to the mindset of justices, and Court of Criminal Appeals should mandate such claims be given the full penolopy of ineffective assistance claims as required by trial courts on colla teral review i.e, 11.07. Furthermore, since the record was fully devel oped said counsels on direct appeal were ineffective for filing Anders Brief in contradiction of the plain errors of trial counsels. Ineffective assistance of counsel: Counsel's failure to object to mis jionder of two distinct offenses in the same indictment. Counsel did not file pretrial motion, nor object during trial when misjionder became apperrant. ART. IV.,

Ineffective assistance of counsel: Counsel's failure to file motion to quash affidavit and information that was unsigned, hence prosecution commenced upon the strength of. unsigned information, that did not confer jurisdiction upon the trial court. ART.V.,

Ineffective assistance of counsel for not filing motion for change of venue in high profile prosecution after it became apperrant that Peti tioner could not recieve a fair trial in said County. ART. VI.,

Trial judge abused her discretion by not ordering a change of venue after it became impossible to seat an unbiased jury in high profile case.

ART. VII.,

Counsel abandoned Petitioner, acting as no counsel at all, merely friend of court, giving testimony that his client was guilty and that afixed in the jury minds that Petitioner was guilty of Count I and Count II, thereby infringed upon Petitoner's persumption of Innocence, and his right to counsel. ART. VIII.,

Petitioner's counsel on appeal Fred Jiminez committed fraud by filing Anders brief when such errors were plain and apperrant. such reasons that Fred Jiminez's wife was District Attorney and because of the nepotism and political aspirations were the motivating reasons for such fraud. The court appointed Stephen W. Byrne as Appeal Attorney rendering Fred -Jiminez's Ander's brief Moot by opertion of law, and court was in error for not ruling;Q/n this point of law. Motion Cont:

ART. IX.,

Petitioner's counsel of record rendered ineffective assistance of

counsel for not raising the defense of temporary insanity after defense counsel made Petitioner's mental state at the time of offen se an-issue during trial. CONCLUSION1

Petitioner urges the Court to grant motion for rehearing or in lieu, sue sponte order rehearing enbanc and order Petition for Discretionary Review. For the State in their 11th hour brief conceded the fact that

Petitioner was correct in error for purpose of double jeopardy and that alone should give Court reason to grant review. The 13th court of appeals refusing oral argument as well as this court not addressing grounds amount to a fundamental miscarriage of justice. Such issues that Petitioner raised are what the American Judicial system was built upon, and are plain and apperrant. such issues require further inquiry fromthe Court. It is cases like this that Court should scrutinize for

effectiveness of competent counsel, as well as Petitioner has recieved

his day in court. Because Petitioner has not recieved his fair day in court, nor fundamental fairness as embodied by the Texas Const./ U.S. Const. Such review by thisaCourt is mandatory and fundamental. For the Court to allow such misscarriaqe of justice is to co-sign tyranny and insurrection against the U.S. Constitution art. VI. Furthermore, Peti tioner's pleadings should be construed liberally, for Petitioner is a layman in the law-and should not be held to the srtigent rules of an attorney/ ,and such procedural rules overlooking the merits of the case that would require reversal is not consistent with judicial norms.

PRAYER

Petitioner prays that the Court grant sue Sponte this Motion and all requested therein/ and any and all relief that the Court deems just and necessary.

(.) GRANTED () DENIED

iSigned .'this 1^ day of November, 2015.

Presiding Judge- CERTIFICATION

Petitioner certifies this motion is grounded in substantial case

law that a rehearing or a rehearing enbanc sue sponte should be

granted/ wherefore the intervening circumstances that are outlined

in the motion are of fundamental in nature. Furthermore, said

motion is made in good faith and not for delay. In accordance with

T.R.A.P. Rule 79.2.

INMATE DECLARATION

Petitioner declares under penalty of perjury that the the foregoing

motion is true and correct.

Signed this 19 Day of November, 2015.

Kesgfect/f ully

Jose/ Q&nzaresAOI #1832029

JAM/E^V. ALLRED UNIT 2101 FM 369 N.

IOWA PARK, TEXAS 76367

4. MR. JOSE GONZALES III #1832029 JAMES V. ALLRED UNIT 2101 FM 369 N. h IOWA PARK, TEXAS 76367 COURT OF CRIMINAL APPEALS C/O ABEL ACOSTA, CLERK P.O.BOX 12308, CAPITOL STATION AUSTIN, TEXAS 78711 ij/V//.^,.n,/./]|]pj^»i]|.ijJ|'n'''li<'<'/i//J..,////. t_egA^ ^.'L .-•"© ;•' J. i $2:303 EiOOis