Gonzalez, Eric Christopher A/K/A Eric Christobal Gonzalez

Opinion

// -72/Y JTM^'. M NO.PD-1172-14

IN THE

COURT OF CRIMINAL APPEALS

' OF TEXAS

ERIC CHRISTOPHER' GONZALEZ R^C,E!!V£D "H Appellant/ COUR'i OF CRWiNAl APPEALS

VS. FEB 12 2015 THE STATE OF TEXAS Appellee.

MOTION FOR RE-HEARING ON PETITION FOR DISCRETIONARY REVIEW PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE 79.

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW,ERIC CHRISTOPHER GONZALEZ/in Pro se,and files this

his "Motion For Re-Hearing"of his Petition for Discre FILED. mmm APPEALS and in support thereof will show the Court: FEB 1?:_'.j I .

A jury found Apellant guilty of felony murder ,aggrava^cl 4sst&t, fl< felony evading arrest/and possession.of marijuana,and the trial

court sentenced.him to concurrent terms of 50 years/20 years,20

years,and two years in a state jail facility.(24 RR 20-23.

Appellant filed a motion for new trial based on ineffective assistance of counsel.(CR.172)-After setting the motion for a hear ing/the trial court rescinded its order,and denied the motion for

new trial without a hearing.(CR.190;225).In a published opinion,

the court held that Appellant was not entitled to a hearing on his

motion for new trial,on the basis that he lacked standing for a

jury charge on the validity of a third-party's consent to search,

and the erroneous admission of marijuana did not affect his ..sub-

i. •'1. stantial rights.Gonzalez v-State,2014 WL 4049800 at*5,*10,*14

(Tex.App.-Corpus Christ!,August 14,2014). II . STATEMENT OF PROCEDURAL HISTORY -

The Thirteenth Court of Appeal's opinion issued on August 14,

2014.No motion for re-hearing was filed.The Petition for Discre-

tionaty Review was filed on September 19,2014.The Court of Criminal

Appeals denied the Petition on January 28,2015.This Motion for

re-hearing is due to be filed February 12,2015.

Ill .

This motion for re-hearing is grounded on substantial inter

vening circimstances which are to be specified in this motion.

And Appellant certifies that this motion is so grounded and issmade

in good faith and not for delay.

IV. GROUNDS PRESENTED FOR REVIEW AND

RE-HEARING

GROUND FOR RELIEF NUMBER ONE: l.The court of aapeals erred in requiring Appellant,who has alleged in a motion for new trial that he was denied the effective assis tance of counsel at trial,to file an affidavit containing legal con clusions regarding prejudice,to be entitled to a hearing on the motion .

GROUND FOR RELIEF NUMBER TWO: The court of appeals erred in holding that Appellant did not have standing to obtain a jury instruction pursuant to Art.38.23 of the Code of Criminal Procedure on the validity of Francina Flore's con sent to search the apartment.

GROUND FOR RELIEF NUMBER THREE: The court of appeals erred in holding that the erroneous admission of marijuana from Flore's apartment did not affect a substantial right.

V. ARGUMENT AND AUTHORITIES-GROUND ONE

1.Appellant's Motion For New Trial and Counsel's Supporting

Affidavit Were Clearly Sifficient and Appropriate To Warrant An

2. Evidentiary Hearing.

Appellant's motion for new trial alleged that he was denied

effective assistance of counsel,asserting seven instances of con

duct that was deficient performcne.(CR.pp,172-174)-Trial Counsel's

supporting affidavit acknowledged that none of the first six of the

allegations were the result of any trial strategy.(CR-pp,177-179).

In requiring that the supporting affidavit contain "legal con

clusions" regarding prejudice before a hearing is warranted on a

motion for new trial,the court of appeal's published decision is

in conflict with decisions from the court of appeals and this. Court.

The Court of appeals cited to Barnett v.State#338 S.W.3d 680,685:

(TEX .App.-Texarkana 2011,pet.ref'd)(per curiam)-The Court of appeals

incorrectly applied Barnett*s case to the present case.A review

of Barnett v .State,supra,reveals that Barnett did not apply any

legal conclusions as to his ineffective assistance of counsel claims,,

the Barnett ease,also reveals that in Barnett's motion for new

trial,he only alleged that his counsel was ineffective,in the case

at hand,the need for an evidentiary hearing is needed,because the

record was silent,and any time a court, is faced with a silent record

the evidentiary hearing on a motion for new trial that alleges that

counsel was ineffective assistance a hearing is "mandatory."

Rozell v-State,137 S.W.3d 106(Tex.App.-Houston [1st Dist]2004)aff'd-

176 S.W.3d 228 "(TEX. CRIM .App. 2005) .

The very purpose of a hearing on a motion for new trial is to

(l)decide whether the cause should be retried,and (2)prepare a

record for presenting issues on appeal in the event the motion is

denied.Smith v-State,286 S.W.3d 333(TEX.CRIM.App- 2009).A trial judge abuses his discretion in failing to hold a hearing on a

motion for new trial when that motion raises matters that are not

determinable from the record.Smith v.State/supra.The trial judges

discretion in determining whether to grant a hearing on a motion

for new trial extends only to deciding whether the defendant has

raised grounds that are both undeterminable from the record and

reasonable;if the trial, judge finds that the defendant has met the

critera,he has no discretion in failing to hold a hearing. Gonzales

v-State/304 S.W.3d 838(TEX.CRIM.App.2010).The very purpose of the

hearing on the defendant's motion for new trial is to develope

fully the issues raised in the motion.Guidry v-State/132 S.W.3d 611

(Tex.App.-Houston[lst Dist]2004,no pet.).

An ineffective assistance of counsel.claim may properly be raised

in a motion for new trial,and where a timely and adequate motion

for new trial/supported by affidavit and raising matters not shown

by the record,is presented to the trial court,the trial court must

hold a hearing on the motion.Hale v.State/140 S.W.3d 381(Tex.App.-

Fort Worth 2004,pet.ref'd.).

The State's very to the issues raised by Appellant as setting

forth the ineffective assistance of counsel demonstrates that the

trial court abused its discretion in denying a hearing.For example,

see the State's response to Appellant's brief in regard to his

properly raised ineffective assistance of counsel's claim's.See

(Appelles Brief pages 11-12).In the analysis of the State in the

Appelles Brief,the State did not contest that Appellant's claims

are not determinable by the record of the trial.(Id.Appellee's

Brief p/ll-!2)-The State also did not concede that the actions of Appellant's trial counsel were not deficient.(Id-Appellee*s Brief

page 12).

Appellant's record was silent as to counsel's motivations for

his lacking any trial strategy and no.trial tactics whatsoever,

such conduct of counsel is always prejudicial and Appellant was

relying on his counsel at the time the motion for new trial was

filed and was prepared by his counsel.This Court should not have

to speculate on the reasons behind trial counsel's actions when

confronted with a silent record."

The State argues that Appellant's counsel's affidavit stating

that he had no trial strategy was not enough to warrant a hearing

on the motion for new trial

Finally,the court's misplaced reliance on Smith v.State/286 S.W.

3d 333,341(TEX.CRIM.App.2009) ,-Cooks v-State/240 S-W-3d 906,912 (Tex

Crim.App.2007);,King v.State/29 S.W.3d 556,569(TEX.CRIM.App.2000);

Buerger v-State/60 S.W.3d 358,363(Tex.App.- Houston [14thDistJ, 2001

pet.ref'd.) ;and Barnett v-State/338 S-W-3d 680,685(Tex.App.-Texar

kana 2011,pet-ref'd)(per curiam).Especially,the opinion of the

court of appeals,about the Barnett v.State,supra case,the Court of

Appeals for the Thirteenth District,opined.that Barnett alleged

that his counsel was ineffective for failing to call a particular

witnesss Kitty Rowland,to testify,despite knowing she was avail

able.The Court of Appeals stated that "Barnett,was able to dem

onstrate,via the witnesses original statement to police,that the

witnesses testimony would have contradicted the testimony of the

other witnesses that Barnett used a kinfe during an assualt.Id.

5. Barnett also alledged that his trial counsel failed to inves

tigate the possibility of introducing mitigating evidence at the'

punishment stage and specified the evidence;his long history of

mental illness.Id.at 686-87.

Appellant asserts that the Court of Appeals,mis-applied the

Barnett v.State,supra,case.Because the motion for new trial did

not alegdge anything but that his trial counsel was ineffective,

and he gave an affidav.it/the affidavit that Barnett gave did not

alledge either prong of Strickland/deficient nor prejudice.See

. EXHIBIT NUMBER (1)-Barnett's motion for new trial and his affidavit

are void of any legal conclusions as the state and appellate court

allege .

Barnett/did not allege or show how his counsel,'s conduct was

deficient/nor that he was prejudiced by his deficient conduct and

Barnett did not cite to any legal conclusions as to his claims.

EXHIBIT NUMBER (l)-The Sixth Court of Appeals abated Barnett's

direct appeal and ordered the trial court to hold a hearing on his

motion for new trial/because the record was silent as to counsel's

motives for his actions that were alleged ineffective assistance

of counsel.Even the appellate court's opinon in this case in sum

held that Appellant's affidavit of his trial counsel was sufficient

to put the trial court on notice that there were reasonable grounds

to believe that relief could be granted.See Thirteenth Court of

Appeals Epinion page at 9-CitingCooks v.State/240 S.W.3d 906,912

(TEX.CRIM.App.2007).

For the above set forth reasons,and because the trial court

abused its discretion by denying Appellant a hearing and to allow

him to be present at the hearing,Appellant is entitled to re-hearing

6- of the denial of the "Petition For Discretionary Review," because

Appellant was entitled to an evidentiary hearing on his properly

filed Motion for New Trial,that alleged facts that if true would

have entitled Appellant to relief,and Ineffective Assistance of

counsel claims that were asserted on a silent record.Rozell v-

State/137 S.W.3d 106(Tex .App.-Houston [1st Dist ]2004 )'; aff 'd 176

S.W 3d 228(TEX.CRIM.App.2005).

Also in support Appellant will point out that Honorable Judge

Alcala,voted to hear the Petition for Discretionary Review.In this

regard and applying the above arguments and law to the facts that

have been presented .Applellant is enititled to.Discretionary Review

on his Petition,and this Honorable Court should grant this motion

for re-hearing to further determine whether Appellant was enitiled

to a hearing on his motion for new trial that alleged ineffective

assistance of counsel,the court of appeals for the Thirteenth

District erred in denying Appellant relief,an evidentiary hearing

was appropriate and necessary to Appellant's ineffective assistance

of counsel claims set forth in his motion for new trial,to have

proper adjudication of the claims on the merits and to make the

necessary record as to counsel's motives,and the trial court erred

and abused its discretion by denying the motion with out a hearing.

Hale v.State,140 S.W.3d 381(Tex.App.-Fort Worth 2004,pet.ref'd).

RE-HEARING IS APPROPRIATE AND REVIEW SHOULD BE GRANTED.

ARGUMENT AND AUTHORITIES-GROUND TWO

2.Appellant Had Standing to Request an Art-38.23 Jury Instruction

on The Validity of Francina Flore's Consent to Search. At trial and on cross-examination,Flores' testified that she

"really didn't want to let[police]in[the]apartment," she was "pre

tty much forced to" sign.the consent form/and that police officer

Joey Garcia/threatened to, take her childeren and send them to

Children's Protective Services/unless she consented to the search

and[told1 them what they wanted to hear."(23 RR.pp,135-136).

Appellant requested a jury instruction pursuant to Art.38.23 of

the Code of Criminal. Procedure,on the validity of Floes' consent

to search the apartment.(23 RR.pp,19,20;23).The trial court denied

Appellant's requested instruction.(23 RR.PP,21,24).The court of

appeals held that Appellant was not enitiled to an Art.38.23 jury

instruction because, he lacked standing to contest the validity of

Flores' consent to search.Because the court of appeals' published

decision is in conflict with decisions from court's of appeals as

well as this Court,the Court of Criminal Appeals of Texas,discre

tionary review is.warranted pursuant to Tex.R.App.P.66.3(a)and Tex.

R.App.P.66 -3(c) ,and Appellant is enitiled to re-hearing the decision

af this Court respectively under Texas Rule of Appellate Procedure

Rule 79.

Appellant is entitled to re-hearing of this matter and to the

discretionary review he seeks,and in support that he had standing

to obtain a jury instruction under Art.38.23(a),Appellant will

show:

"T.CCP-Art.SS.ZStajEVIDENCE NOT TO BE USED. (a)No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America,

shall be admitted in evidence against the accused on the trial of any criminal case.

8. In any case where the legal evidence raises an issue hereunder,or has a reasonable doubt,that the evidence was obtained in violation

of the provisions of this Article,then and in such event,the jury shall disregard any such evidence so obtained.

Applying the above Texas and United States violation with the

testimony of Flores' that the police officer Garcia,threatened her

with her children if she did not sign the consent form is evidence

that required an jury instruction, on the issue.Holmes v.State/248

S.W.3d 194,196(TEX-CRIM.App.2008): "A defendant who affirmatively states,No objection,when evidence is offered,waives his right to complain on appeal that the evidence was,as a matter of law,illegally'obtained under Art.38.23.But that same defendant may still request.and recieve a jury instruction under Art.38.23 if the evidence raises a contested factual issue

that is material to the lawfulness of obtaining the evidence.These are two distinct.issues:(1)is a legal question of admissibility for the judge and the other is(2)a question of disputed fact for the jury's consideration.' Holmes v.State/248 S.W.3d 194/196-

Appeilant complained that the evidence was obtained in violation

of the law,and that Flores' consent was the fruit of police threats,

in Atkinson v.State,923 S.W.2d 21,23(TEX-CRIM.App.1996),this Court

ruled and held that:

"Evidence obtained in violation of the law must be excluded from

jury consideration in criminal cases on request of the defendant. The judge should withhold such evidence from the jury altogether when it is inadmissible purely as a matter of law.But,when there are disputed issues of fact affecting the legality of its seizure, the question of exclusion may be tried to the jury.In such event, the judge must include in his final charge an instruction that,if the jury "believes,or has reasonable doubt,that the evidence was obtained in violation of...any provision of the Constitution or laws of the State of Texas,or of the Constitution or laws of the

U.S.,...then and in any event,the jury sahll disregard any such evidence so obtained." Moreover,the evidence raises the issuefof whether the evidence

was obtained illegally]may be either strong,weak,contradicted,un-

impeached,or unbelievable."Muniz v.State/851 S.W.2d 238,254(TEX.

CRIM.App-1993).Appellant,relies also on his original petition

which properly set forth the law on such amter's and Appellant is

enitiled to have this motion for re-hearing granted/because the

evidence that was obtained from the apartment and the consent were

the fruit of an illegal search and seizure in violation of Article

I § 9 of the Texas Constitution and the Fourth Amendment to the

United States Constitution/when police officer Garcia/threatened

Flores' with taking her children away/if she did not sing the

consent.

Appellant was entitled to and had standing to request an jury

instruction under Art.38.23/because the evidence seized was in

fact disputed at trial/Appellant is entitled to a new trial and

any other relief that is appropriate and necessary that this Court

may deem necessary.RE-HEARING IS APPROPRIATE AND NECESSARY AND

APPELLANT IS ENTITLED TO REVIEW.

ARGUMENT AND AUTHORITIES-GROUND THREE

3.The Erroneous Admission of Marijuana and Pictures of Marijuana

Seized From Flores' Apartment Affected Appellant's Substantial

Rights.

FACTS RELEVANT TO GROUND THREE

When the State offered SX 35,marijuana recovered from the Flores1

apartment,the trial court overrruled Appellant's Tex-R-Evid-401,

404(b),and 403 objections.(20 RR.175)-The trial court also over

ruled these same objections to SX's 58,67,68,59,70,80,and 87,

10. pictures of the marijuana seized from Flores' apartment.(22.RR. 86) .

The court of appeals held that the trial court erred in ad

mitting the marijuana because it was not "same transaction con-

texual evidence."Although the court aeknowedged that the marijuana "played a large part in the State's case" and that it "used the

[marijuana] from the apartment,including the identification alleged to be found in the bag with the marijuana... to connect the mari

juana with Appellant,it neverthless concluded that this error did

not affect Appellant's substantial rights.Because the harm analysis in the court's published decision is in 'conflict with decisions

from this Court[Court of Criminal Appeals]and courts of appeals, and ignores evidence essential to its resolution of this complaint, discretionary review was warranted pursuant to Tex.R.App.P.66.3(a), Tex.R.App.P.66.3(c) -

At the out set,the court of appeals'failed to consider Appellant's primary argument that this error was not harmless-the State's re

peated emphasis on the marijuana and the photographs dispicting it during final argument-in urging jurors to convict on Count IV-in

its harm analysis,as required by Tex ..R. App .P.47.1.See Sims v.State/

99 S.W.3d 600,603-504(TEX.CRIM.App.2003)("As a, general proposition, reviewing courts ought to mention a party's number one argument and,explain why it does, not have the persuasive force the party thinks it does .")'; King v.State, 848 S-W- 2d. 142 ,143 (TEX -CRIM- App. 1993).

Appellant,asserts that he is entitled to a re-hearing on this

issue,and adopts his original arguments and law cited in the petit ion for discretionary review.This issue was so harmful that it

11. would result in a manifest miscarriage of justice not to grant

this motion for re-hearing on this issue,and would also result

in the same to not grant Appellant a new. trial after review of

this.issue.Appellant is so entitled and this Court should grant

re-hearing.RE-HEARING IS NECESSARY AND APPROPRIATE.

APPELLANT'S REQUEST OF COURT TO TAKE JUDICIAL NOTICE *THAT HIS

APPELLATE ATTORNEY FAILED TO PRESERVE TEN OF APPELLANT'S ERRORS/

BY FAILING TO RAISE THE ISSUES IN THE DISCRETION REVIEW PETITION.

POINTS OF ERROR NOT WAIVED

ERROR NUMBER THREE; OF DIRECT APPEAL:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE STOP -

ERROR NUKEER FOUR OF DIRECT APPEAL:

TEE TRIAL COURT ERRED IN DENYING APPELLANT.'S MOTION FOR DIRECTED VERDICT ON COUNT III,TEE FELONY EVADING ARREST ALLEGATION,BECAUSE HIS CONVICTION ON THAT COUNT VIOLATED DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.

ERROR NUMBER SIX OF DIRECT APPEAL:

THE TRIAL COURT ERRED IN DENY IMG APPELLANT'S REQUEST FOR A JURY INSTRUCTION ON THE VALIDITY OF THE SEARCH THAT YIELDED THE "MARI JUANA FROM THE CONSOLE OF HIS TRUCK PURSUANT TO ART-38.23 OF THE "CODE OF CRIMINAL PROCEDURE.

ERROR NUMBER THIRTEEN OF DIRECT APPEAL:

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE'OF COUNSEL AT THE GUILT-INNOCENCE STAGE- 1.Failing to Limit the Definitions of "Intentionally" and "Knowingly." 2-Failinq to Request a Mistake of Fact Instruction. 3.Failing to Object to the State's Repeated Use of the Term "Victim.".

12. The issues listed above are "in no way waived"/Appellant relied

completely on his appellate counsel to preserve these issues and

his counsel failed,Appellant was denied effective assistance of

counsel by his appellate counsel deficient conduct that has resulted

in prejudice of his review of the issues raised in his oriqinal

direct appeal,for appellate counsel to drop the ball could result

in Appellant' forfieting-'the issues for, later review of a hiqher

court,Appellant reserves the right to raise the above issues at

another level of appellate review.

CONCLUSION AND PRAYER FOR RELIEF

Appellant/is entitled to re-hearing of his properly raised

issues/that this Court denied in Appellant's petition for dis

cretionary review/it would be a total mis-carriaqe of justice to

deny re-hearing on the matters raised/and by the clear and con-

vincinq evidence that the court of appeals relied on to come to

the conclusion on Appelant's direct appeal was clearly erroneous

and the court of appeal for the Thirteenth District erred by the

mis-statement of the law reqardinq the Barnett v.State/ case, when

in fact Appellant showed more proof than Barnett/that he was denied

effective assistance of counsel,and Appellant is entitled to have

an hearinq on his motion for new trial,wherefore premises beinq

considered,Appellant prays this Court grant re-hearinq and review

the evidence aqain and grant Appellant the relief he is entitled

to. -

2~ ^ JL-* v__. X ERIC CHRISTOPHER GONZALEZ TDCJ-ID # 1863150

13 UNSWORN INMATE DECLARATION

I,Eric Christopher Gonzalez,hereby declare under penalty of

perjury that the foreqoing is true and correct to the best of my

knowledge, I am an incarcerated inmate at the McConnell Unit, located

in Beevilie',Bee County,Texas.

Signed this the 9th day of February,2015.X €^jQ- Eric Christopher Gonzalez TDCJ-ID # 1863150 McConnell Unit 3001 S.Emily Dr. Beevilie,Texas 78102

CERTIFICATE OF SERVICE '

I,Eric Christopher Gonzalez,hereby certify that a true and

correct "carbon codv" of the forgoing motion for re-hearinq has

been sent via U.S.Mail to:Cameron County,District Attorney,Luis V.

Saenz,964 East Harrison Street,Brownsville,Texas 78520.

Siqned this the 9th day of February,2015.X Eric Christopher Gonzalez TDCJ-ID # 1863150 McConnell Unit 3001 S.Emily Dr. Beevilie,Texas 78102

14. APPENDIX OF RELEVANT EXHIBITS

<

EXHIBIT NUMBER ONE:Copy of Motion for new trial and copy of the

Affidavit of Barnett v.State,338 S.W.3d 680(Tex.App.-Texarkana

2001).Trial Court Number 23473.

TAB ONE.

TAB ONE. I BIT 5*£^S

NO. 23473

STATE OF TEXAS § FN THE DISTRICT COURT § vs. § 6th JUDICIAL DISTRICT § RANDY DALE BARNETT § LAMAR COUNTY, TEXAS

MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Randy DaleBarnett, theDefendant in the abovestyled andnumbered cause, and files this Motionfor New Trialand Motionin ArrestofJudgmentpursuantto Rules21 and 22 of the Texas Rules of Appellate Procedure, and in support thereof would show this court the following:

1. TheDefendant wassentenced onMay25,2010. ThisMotion, filed within thethirty- day timetable, is therefore timely. A hearing must be commenced before the 75th day afterthe sentence, which is August 8, 2009, or this motion is overruled by operation of law.

2. The verdict in this cause is contrary to the law and the evidence. See Tex. R. App. P. 21.3.

3. The defendant was denied the effective assistance ofcounsel in the above-entitled and

numbered cause, to wit: C3 'Z3 3, a. Defendant was charged with an aggravated assault based on the use of a ?? ' deadly weapon. A key witness to the incident was KStty Rowland, the defendant's former fiance. She was present at the time of the incident for which the defendant was charged. She gave a statement in which me denied

seeing the defendant displaying a knife. Mr. Coyle advised me that he could

not find the witness. However, during the trial, the State advised the court

that the witnesscouldbe located because theyhad heraddressand telephone number. Defendant requested that his counsel file a motion for a continuance

to locate the witness but counsel didnot do so. Thiswitness' testimony was Page 1

±Bi

•*r~-«&." crucial as the use or exhibition ofa deadly weapon was the key element ofthe

aggravated assault charge filed against defendant. The importance of the

witness'stestimonyis demonstrated bydefendant's counsel's attemptto offer Kitty Rowland's statement into evidence during the trial. A true and correct

copy of Kitty Rowland's statement is attached as Exhibit "A" and is

incorporated herein by reference for all purposes.

b. The importance of Kitty Rowland's testimony was further demonstrated in that she had signed an affidavit of non-prosecution in which she averred that

the charges against the defendant were not true. A true and correct copy of Kitty Rowland's affidavit of non prosecution is attached as Exhibit "B" and is incorporated herein by reference for all purposes.

c. Defendant's counsel failed to object to evidence concerning a purported assault committedbythe defendantupon KittyRowland. KittyRowlandwas not present totestify thereto norwere thereanyotherwitnesses withpersonal knowledge thereof. Charges are still pending on this case. The evidence offered thereto was hearsay. The prejudicial effect of this evidence

substantially outweighed its probative value and counsel should have

objected to the same.

d. Defendant's counsel failed to object to testimony offered during the guilt innocence phase of the trial concerningthe defendant's pastcriminal history and incarceration in the penitentiary.

e. Defendant's counsel failed to request a jury charge on the lesser included offense of assault.

f. Defendant'scounsel failed to object to repeated extraneous offense evidence during the guilt innocence phase of the trial.

g. Defendant's counsel failed to offerany mitigating evidence at punishment.

Page 2

loc Defendant has been diagnosed as having various mental health illnesses, including being bipolar. He has had treatment at MHMR. No evidence was

offered as to his mental condition.

h. Defendant's counsel failed to call Rhonda Gustin, a police officer who interviewed thecomplaining witness, JimBryan. Defendant's counsel could have established that Bryan never told theofficer that defendant putany knife to Bryan's side when she interviewed him, contrary to the testimony offered at trial. Such evidence could have been used to impeach the complaining witness's testimony.

4. The trial court has the discretion togrant a new trial in the interests ofjustice, asthe Court of Criminal Appeals has emphasized:

For more than one hundred and twenty years, our trial judges have had the discretion togrant new trials inthe interest ofjustice. In MuUinS v. State. 37 Tex. 337,339-340 (1872-73), the Supreme Court, which at that time had criminaljurisdiction, held: . . . The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate to

use that discretion whenever the ends of justice have not been attained by those verdicts.

State v. Gonzalez. 855 S.W.2d 692 (Tex. Crim. App. 1993).

5. For the foregoing reasons, and for such other reasons that may arise onthe hearing of this Motion, Defendant requests a new trial.

WHEREFORE, PREMISES CONSIDERED, DefendantpraysthattheCourtset asidethe judgment of conviction entered in this cause and order a new trial on the merits.

Page 3

±63 AFFIDAVIT

BEFORE ME, the undersigned authority, appeared Randy Dale Barnett, who after being duly sworn by me stated the following under oath: "My name is Randy Dale Barnett. Iam over the age of18 years and Iam competent to make this affidavit.

Iwas charged with an aggravated assault based on the use or exhibition ofadeadly weapon. Akey witness to the incident was Kitty Rowland, my former fiance. She was present at the time ofthe incident for which Icharged. She gave astatement in which she denied seeing the defendant displaying a knife. Atrue and correct copy ofthe statement which she gave was provided to me by my attorney and is attached hereto and incorporated herein by reference. During the trial, the State advised the court that the witness could be located because they had her address and telephone number. I asked my attorney, Jerry Coyle, to file a motion for acontinuance to locate Kitty Rowland but he refused to do so. Kitty Rowland's testimony was crucial as the use or exhibition ofadeadly weapon was the key element ofthe aggravated assault charge filed against me. The importance of the her testimony isdemonstrated by my counsel's attempt to offer Kitty Rowland's statement into evidence during the trial. The importance ofKitty Rowland's testimony was further demonstrated in that she had signed an affidavit ofnon-prosecution in which she averred that the charges against me were not true.

My counsel also failed to object to evidence concerning apurported assault allegedly committed by me upon Kitty Rowland. Kitty Rowland was not present to testify about this nor were there any other witnesses with personal knowledge thereof. Charges are still pending on this case. Theevidence offered was hearsay. My attorney did not object to testimony offered during the guilt innocence phase of the trial concerning my past criminal history and incarceration inthe penitentiary. My counsel failed to request ajury charge on the lesser included offense ofassault.

Page 6

.39 My counsel failed to object to repeated extraneous offense evidence during the guilt innocence phase of the trial.

My attorney failed to offer any mitigating evidence at punishment. I have been diagnosed as having various mental health illnesses, including being bipolar. I have had treatment at MHMR. No evidence was offered as to my mental condition. In fact, my attorney just asked me ifIwanted to tell the jury anything. Idid not know what to say. He just didnotask me anyquestions.

My counsel failed to call Rhonda Gustin, a police officer who interviewed the complaining witness, Jim Bryan. My attorney could have established that Bryan never told the officer that Bryan never told her that Iput any knife to Bryan's side, contrary to what was said in Court.

f&Atf'v /5^^< Randy Dale Barnett Affiant

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, this jfrdday of QtAAdL ,2010.

Notary Public, State of Texas

qnimill!,imimmiimmi]irnrmrm7.. MARIENE HOCUTT NOTARY PUBLIC STATE OF TEWS >*SJ$' MyCwnm8»k>n£xf>i!»3-N>-20lZ .. ii)"i.'i;i;r;);»n, •, u.•;;»/;;,•> w J

Page 7

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