Greer, David AKA David Duane Greer
Opinion
1 ,~ _ mm uo. 1_2-033-24-an-272-A l’\\ w t 02
APPL’ICAN|" S AITACHED MEMORANDUH OF LAH FOR HIS 11_.'07 " 1'
(§RUUND UF ERROR NU. 1: RPPLICANT 15 BElNG UENIED HIS UUE PRUCESS RIGHI TO A CUMPLE|E CUPY OF THE TRIAL RECORD TO PREPARE HIS POST- CONVICTION COLLATERAL ATTACK.
Applicant is "N_O_T" seeking _’a _f__ree copy of the trial record. lhe Court`Reporter refused and failed to properly record word for word every thing that was said during trial. Specifically by trial counsel, prosecutor and judge and jury. Additionally failed to include the jury notels) to the judge, whether trial counsel was present during the decision making process as to how to respond to the note. Additionally there is a total absence from the record as to what steps were taken to secure Applicant' s presence during this critical stage of the proceedings.
The present trial records clearly verifies there was three off the record discussi.ons. This vital and potential vital information was not recorded. This failure insured that the transcription of the proceedings is fatally incomplete. The first discussion occurred immediately after the venire panel was seated. Vol.3 P. 5 L‘._3, Applicant was present and 'now will recite to the best of his ability what was said`. The trial judge the llonorab"le Trav'is Bryan llI called AlTENTwN: to the distinguished Mr. Robert Cessna veniremenber No. 6. lwho was selected as juror No.Z. Vol.3 P.162 L'.B.) As being a famous sport writer who works for the local newspaper. The Bryan Eagle. Then the judge launched into a short speech about his :highly acclaimed friend's more distinguished accomplishments; then asked the entire courtroom to _give him around dr of applause for his` close and dear friend Mr.Cessena. The entire courtroom did in fact give him a loud and long round of applause. All these vital events were not recorded as such they are not a part of the transcribed record. The lack of this recorded evidence has denied applicant the necessary record to establish that counsel was ineffective for not questioning this juror about his relationship with the judge, if said relationship would effect his decision making, process. lhis is the most vital and primary function during voir dire. See Cadoree v. State, 810 S.w.Zd 786,789 (TeX.App.-Houston [l4th Dist.j 1991).
Additional off-the-record discussion took place. vol.3 P.142 L24, P.165 L.25.'lhis missing word for word conversation involved the judge, D.A. and trial counsel. This missing record is potentially vital.
Another "off-the-record discussion." Vol'.3 P.1x73"L'.2"l)'. Applicant, overhea-rd~z.-=»€§ portions of this open court proceeding. Counsel revealed his representation of
applicant against the actions of the Bai:zos County Sh vE wi h entail f w ne s. Counsl revealed that all on the state' s it sse e §§M'NALRP£ Barzos .- TNOV 03 2015 1
AbelAc@sia,©lesi<
Co. Sheriff's Dept. as a ride along, at times he participates in armed raids during which his very life is entrusted in the hands of the county's deputies. Therefore, it was in the best interest of counsel to not subject his co-workers» to ridged v cross-examination. Exposing them to possible disciplinary actions, civil suits or criminal charges being filed against them. Thereby creating a hostile work environment. white v. Reiter, 640 S.w.2d 586,599 (Tex.Cr.App. 1982).
This lack of this recorded evidence has denied applicant the evidence he needs to establish his counsel's conflict of interest, and that the judge was aware of this~ conflict of interest. Applicant is now left with the ball assertion in state and federal court, post-conviction proceedings§ The Supreme court has long ago ruled in its landmark decision this is insufficient. Cuyler v. Sullivan, 100 S.Ct. 1708,1719 (1980)("[u]ntil a defendant shows his counsel representation represented a conflict of interest, he has not established the constitutional predicate for his claim of ineffective assistance of counsel.
' See Vol.¢l P.183 L.15 which unambiguously establishes that there was a jury note, that a discussion was held then a reply was sent vby the judge. Also that the record does not include this note, nor if counsel and or applicant was present and consulted before a reply was sent, also what steps were taken to secure applicant‘s presence. It is mandatory lthat. the record reflects these levents. See_ Tex.C.C.P. 36.27. See also U.S. v. Smith, `31 F.3d 469,473 (7th Cir.1-994)._
This rule is setup to guard against Ex Parte communications between the judge and jury. Now what is the most disturbing portion of the missing records is the ex parte communications between the judge, prosecutor and jury. As noted in the record Vol.4 P.183 L.15 the juror(s) during deliberation the jury requested to view the video._ Applicant has now submitted a notarized affidavit. Ex. A. The judge ran everybne out of the courtroom except the prosecutor. The judge then summoned the jury panel into the courtroom", the prosecutor set up the video on his person lap top and served as the on scene operator. Trial counsel nor Applicant was present. Shortly after this viewing the jury returned a verdict of guilty. None of these highly illegal, highly prejudicial events are on the record. This in itself requires a new trial. See Revell v. State, 885 S.w.2d '206,211 (Tex.App.-Dallas 1994). Ex parte communication limited to the jury foreman and judge alone‘was , prejudicial enough for the Supreme Court to agree a new trial was warranted. United ` §i_;_aw, v. Unitgi Sta@ Gprn Co'., 98 S.Ct. 2864,2885-86 ("Fina_lly, the absence of counsel from the meeting and the unavailability of the transcription of full report of the meeting aggravate the problems..."). This secret meeting between the judge,
prosecutor and the entire jugy_ panel's private extended viewing of the inculpatory video' orchestrated by the-prosecutor,~far exceeds the ex parte communication(s) the Supreme Court requires for reversal. Id at 2885-86.
In the event that this court should attempt to rule that this error needed to be objected, to, to preserve` error will only highlight that these ex parte communications and events took place without counsel being present, in violation of 36.27 supra., u;s. v. smith, supra at 471. 4 '
Applicant has a due process right to these records without unnecessary delay; DeLancy v. Caldwell, 741 F.2d 1246,1247 (10th Cir.1984). Applicant has suffered harm but not limited to: Being forced to file an incomplete 11.07 in efforts to stop the running of the one-year statute of limitation pursuant to 28 U.S.C §2244. Also the continuing incarceration of an innocent person. Triestman v. U.S., 124 F.3d 361,379 (2nd Cir. 1997). Applicant request `that he be provided a complete copy of the trial record, and the-opportunity to supplement his 11. 07.
GROUND OF ERROR NO. 21 APPLICANT wAS DENIED HIS SIXTH AMENDMENT RIGHT T0 j CROSS- EXAMINE THE wITNESSES AGAINST HIM.
Officer Ficke prepared the Vehicle Inventory Report which is testimonial the linch-pin (evidence) that was used to prove the gun and jacket was legally obtained. Thereby allowing it to be used as evidence during trial. As such the manner in which the report was prepared is the nexus of the entire case. Because of ' these facts applicant had a Sixth Amendment right to cross- -examine this witness. Meledez- Diaz v. Massachusetts, 129 S. Ct. 2527 (2000):
"The Sixth Amendment of the United States Constitution, made applicable to the State' s via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (19655, provides that '[I]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the
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1 ,~ _ mm uo. 1_2-033-24-an-272-A l’\\ w t 02
APPL’ICAN|" S AITACHED MEMORANDUH OF LAH FOR HIS 11_.'07 " 1'
(§RUUND UF ERROR NU. 1: RPPLICANT 15 BElNG UENIED HIS UUE PRUCESS RIGHI TO A CUMPLE|E CUPY OF THE TRIAL RECORD TO PREPARE HIS POST- CONVICTION COLLATERAL ATTACK.
Applicant is "N_O_T" seeking _’a _f__ree copy of the trial record. lhe Court`Reporter refused and failed to properly record word for word every thing that was said during trial. Specifically by trial counsel, prosecutor and judge and jury. Additionally failed to include the jury notels) to the judge, whether trial counsel was present during the decision making process as to how to respond to the note. Additionally there is a total absence from the record as to what steps were taken to secure Applicant' s presence during this critical stage of the proceedings.
The present trial records clearly verifies there was three off the record discussi.ons. This vital and potential vital information was not recorded. This failure insured that the transcription of the proceedings is fatally incomplete. The first discussion occurred immediately after the venire panel was seated. Vol.3 P. 5 L‘._3, Applicant was present and 'now will recite to the best of his ability what was said`. The trial judge the llonorab"le Trav'is Bryan llI called AlTENTwN: to the distinguished Mr. Robert Cessna veniremenber No. 6. lwho was selected as juror No.Z. Vol.3 P.162 L'.B.) As being a famous sport writer who works for the local newspaper. The Bryan Eagle. Then the judge launched into a short speech about his :highly acclaimed friend's more distinguished accomplishments; then asked the entire courtroom to _give him around dr of applause for his` close and dear friend Mr.Cessena. The entire courtroom did in fact give him a loud and long round of applause. All these vital events were not recorded as such they are not a part of the transcribed record. The lack of this recorded evidence has denied applicant the necessary record to establish that counsel was ineffective for not questioning this juror about his relationship with the judge, if said relationship would effect his decision making, process. lhis is the most vital and primary function during voir dire. See Cadoree v. State, 810 S.w.Zd 786,789 (TeX.App.-Houston [l4th Dist.j 1991).
Additional off-the-record discussion took place. vol.3 P.142 L24, P.165 L.25.'lhis missing word for word conversation involved the judge, D.A. and trial counsel. This missing record is potentially vital.
Another "off-the-record discussion." Vol'.3 P.1x73"L'.2"l)'. Applicant, overhea-rd~z.-=»€§ portions of this open court proceeding. Counsel revealed his representation of
applicant against the actions of the Bai:zos County Sh vE wi h entail f w ne s. Counsl revealed that all on the state' s it sse e §§M'NALRP£ Barzos .- TNOV 03 2015 1
AbelAc@sia,©lesi<
Co. Sheriff's Dept. as a ride along, at times he participates in armed raids during which his very life is entrusted in the hands of the county's deputies. Therefore, it was in the best interest of counsel to not subject his co-workers» to ridged v cross-examination. Exposing them to possible disciplinary actions, civil suits or criminal charges being filed against them. Thereby creating a hostile work environment. white v. Reiter, 640 S.w.2d 586,599 (Tex.Cr.App. 1982).
This lack of this recorded evidence has denied applicant the evidence he needs to establish his counsel's conflict of interest, and that the judge was aware of this~ conflict of interest. Applicant is now left with the ball assertion in state and federal court, post-conviction proceedings§ The Supreme court has long ago ruled in its landmark decision this is insufficient. Cuyler v. Sullivan, 100 S.Ct. 1708,1719 (1980)("[u]ntil a defendant shows his counsel representation represented a conflict of interest, he has not established the constitutional predicate for his claim of ineffective assistance of counsel.
' See Vol.¢l P.183 L.15 which unambiguously establishes that there was a jury note, that a discussion was held then a reply was sent vby the judge. Also that the record does not include this note, nor if counsel and or applicant was present and consulted before a reply was sent, also what steps were taken to secure applicant‘s presence. It is mandatory lthat. the record reflects these levents. See_ Tex.C.C.P. 36.27. See also U.S. v. Smith, `31 F.3d 469,473 (7th Cir.1-994)._
This rule is setup to guard against Ex Parte communications between the judge and jury. Now what is the most disturbing portion of the missing records is the ex parte communications between the judge, prosecutor and jury. As noted in the record Vol.4 P.183 L.15 the juror(s) during deliberation the jury requested to view the video._ Applicant has now submitted a notarized affidavit. Ex. A. The judge ran everybne out of the courtroom except the prosecutor. The judge then summoned the jury panel into the courtroom", the prosecutor set up the video on his person lap top and served as the on scene operator. Trial counsel nor Applicant was present. Shortly after this viewing the jury returned a verdict of guilty. None of these highly illegal, highly prejudicial events are on the record. This in itself requires a new trial. See Revell v. State, 885 S.w.2d '206,211 (Tex.App.-Dallas 1994). Ex parte communication limited to the jury foreman and judge alone‘was , prejudicial enough for the Supreme Court to agree a new trial was warranted. United ` §i_;_aw, v. Unitgi Sta@ Gprn Co'., 98 S.Ct. 2864,2885-86 ("Fina_lly, the absence of counsel from the meeting and the unavailability of the transcription of full report of the meeting aggravate the problems..."). This secret meeting between the judge,
prosecutor and the entire jugy_ panel's private extended viewing of the inculpatory video' orchestrated by the-prosecutor,~far exceeds the ex parte communication(s) the Supreme Court requires for reversal. Id at 2885-86.
In the event that this court should attempt to rule that this error needed to be objected, to, to preserve` error will only highlight that these ex parte communications and events took place without counsel being present, in violation of 36.27 supra., u;s. v. smith, supra at 471. 4 '
Applicant has a due process right to these records without unnecessary delay; DeLancy v. Caldwell, 741 F.2d 1246,1247 (10th Cir.1984). Applicant has suffered harm but not limited to: Being forced to file an incomplete 11.07 in efforts to stop the running of the one-year statute of limitation pursuant to 28 U.S.C §2244. Also the continuing incarceration of an innocent person. Triestman v. U.S., 124 F.3d 361,379 (2nd Cir. 1997). Applicant request `that he be provided a complete copy of the trial record, and the-opportunity to supplement his 11. 07.
GROUND OF ERROR NO. 21 APPLICANT wAS DENIED HIS SIXTH AMENDMENT RIGHT T0 j CROSS- EXAMINE THE wITNESSES AGAINST HIM.
Officer Ficke prepared the Vehicle Inventory Report which is testimonial the linch-pin (evidence) that was used to prove the gun and jacket was legally obtained. Thereby allowing it to be used as evidence during trial. As such the manner in which the report was prepared is the nexus of the entire case. Because of ' these facts applicant had a Sixth Amendment right to cross- -examine this witness. Meledez- Diaz v. Massachusetts, 129 S. Ct. 2527 (2000):
"The Sixth Amendment of the United States Constitution, made applicable to the State' s via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (19655, provides that '[I]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the
witnesses against ' him.' In Crawford, |v, washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004 after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront 'those ‘who bear testimony' against him... A witness testimony against a defendant is thus inadmissible unless (Pg. 321) the witness appears at trial or, if ‘the witness is unavailable, the defendant had a prior opportunity for cross- -examination 1d. at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177." The fact in question 4is whether the Vehicle Inventory Report compiled by Brazos Co. Sheriff's Deputy Ficke is testimonial. It represents the same testimony he is expected to provide if called at trial. See Meledez-Diaz v. Massachusetts, supra at 321: ("The fact in question is that 'the substance found in the possession of Melenda-Diaz-the precise testimony the analysts would be expected to provide if
called to trial.").
This report prepared by officer Ficke is considered on the same plane as the report prepared by the analysis in Meledez supra each are not entitled to the exception of business 'records. See M, supra L;Ed.2d at 328:
"The` analysts' certificates-like police reports generated by law enforcement
officials do not qualify as business or public records for precisely the same
reason. See Rule_803(8)(.defining Public records as "excluding, however, in criminal cases matters observed by police officers and otherflaw enforcement personal"). At 329 "Business and Public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of the entity's affairs and not for the purpose of establishing or proving some fact
_ at trial they are not testimony..."
»For this reason applicant has a Sixth Amendment right to cross-examine officer Ficke, so he could test the reliability of the report. Meledez, supra at 326: ("To be sure, the Clause's`ultimate goal is to ensure reliability of 'evidence, but it is a procedural rather than a substantive»guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner by testing in the crucible of cross-examination."). Additionally it's the prosecutor~'s responsibility to ensure Ficke is present and not applicant‘s. Because it» is the prosecutor's job to produce adverse witnesses. Meledez, supra L.Ed. 2d at 323 ("Const. Amend 6. The text of the Amendment contemplates two classes of witnesses-those against the defendant and those in his favor. The prosecutor must produce the former.)“.` Because applicant was denied his Sixth Amendment right to cross-examine officer-‘Fic`ke` this writ should be granted and a new trial order.
Next` is the matter of being denied the right to cross-examine the witness that gave evidence against applicant for a past crime, a description of the vehicle and the sole witness to provide-a description and identification of applicant as the driver of the vehicle. The State was allowed to prove this key element by hearsay testimony without allowing applicant to test the reliability of said testimonial evidence. Matz v. State, 14 S.w.3d 746,747 (Tex.Crim.App.ZOOO)("The gravemen -of the general exclusion of hearsay __is that such testimony is not subject to testing through cross-examination.")..All testifying witness agreed they could not identify applicant as the driver until after applicant was forcefully pulled _over and simultaneously arrested at gun point. Vol.4 P.75 L8-14. Officer Terry Young testified that" I may have been about a block or'so behind everybody else. Vol.4 P.58 L18-19. Officer Ledesna testified he was in the vehicle at the very back I came in after--right after the stop. Vol.4 P. 82 L.2-3. Even though this witness was alleged to be a CI him/her was still subjected to cross-examination because he/she
gave evidence against applicant that he was the driver of the vehicle without said
testimony the forceful stop, arrest and inventory search also the confiscation of the gun was illegal. Therefore, applicant had a Sixth Amendment right to cross examine this witness. ' .
, Even the judge was concerned by the lack of "any direct testimony by stating:
That they never identified him before they'pulled him over. Vol. 4 P. 108 L.12-17, Applicant had a right to test the credibility of the CI's description. Because this very information through out trail and specifically to deny appli,ant's motion to suppress. Vol.4 P.108-111. _ See §r_‘awford1 v. washington, 124 s.ct. 1354,1364 (2004): ~ " _
"The test of the Confront`ation Clause reflects this focus. lt applies to
'witnesses' against the accused-in other words, those who 'bear testimony' 2
N. webster, An American Dictionary of the English Language
(1828). "Testimony.' in turn, is typically .'[a] soleman declaration or
affirmation made for the purpose of establishing or proving some fact. Ibid."
This witness's testimonial evidence was used to identify both the vehicle and applicant as the driver. Before the CI's information, Brazos Co. Sheriff's Dept. had -no ideal applicant had an arrest warrant by the city of Bryan police Dept., his location nor what he was driving. Vol. 4 P.88 L.3-11. This detailed information provided by this alleged witness is of the paramount importance because only this witnesses' identification of the truck and applicant 'as the driver provided authority for the deputies to- forcefully pull applicant over arresting him at gun point." This vital evidence can not be overstated. without it there could have£_ been no stop, no arrest and no search, no trial much less a convict'ion.`
Because 4the State failed to produce this witness for cross-examination applicant was denied his Sixth Amendment right to subject this witnessesinfo'rmation to adversarial testing. Meledez, supra at 326. For this reason this writ should be granted and new trial ordered.
GROUND OF ERROR NO. 3: THE PROSECUTOR DENIED APPLICANT A FA!R TRIAL IN VIOLATION OF THE SIXTH AND FGURTEENTH AMENDMENTS OF'THE U.S. CONST. BY USING ' HYPOTHETICAL SITUATIONS WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE »TO COMMIT JURORS TO THE STATE‘S THEORY OF CONVICTION BEFORE`ANY EVIDENCE BEING PRESENTED BEFORE THE ACTUAL TRIAL BEGIN.
GROUND OF ERROR NO. 4: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL IN ' VIOLATION OF THE SIXTli AND FOURTEENTH AMENDMENTS OF THE U.S. CONST. BY USING HYPOTHETICAL SITUATION WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE TO STRIKE THE JURORS THAT NERE UNWILLING TO CONVICT APPLICANT BASE_D UPON THE EVIDENCE AND LEGAL THEORY TH_AT THE STATE WAS GOING TO PRESENT WHEN THE TRIAL BEGIN.
The prosecutor used the exact facts of the case that they were going to use to convict applicant to find jurors that would convict applicant and s_truck the ones that would not commit themselves. `
The state's theory to convict is that the truck belonged to him and any thing that was in his truck'belonged to him. e.g.' gun and jacket. .
During voir dire the prosecutor set forth the exact facts and legal theory to all venirepersons: vol.3 P. 41-42 MR'.' CALVERT: Did--you drove `your truck to the courthouse today---No. 37 Yes, sir, MR. CALVERT: It's parked out in the parking lot? No. HJ: Yes, sir...You didn't bring you tools into the courtroom, did you?...No, sir--okay. And you said those tools,_ even thought they're in your 'vehicle, they're in your possession, right? Yes, sir, they are--why? do you think so?--Because they're under my care. I can_»manage those tools. The prosecutor then when row by row P. 42 L.22-24 Jury member Mr. Cobes agreed. The jury foreman agreed P. 57 L.6. All jurors that disagreed were struck; e.g. P.45 L.3 Mr. Bernal.
The prosecutor even selected jurors that were willing to convict applicant even if they did not prove he owned the gun (exact facts of the case). P. 65. Jurors that refused to convict based upon these facts were struck. e.g. Ms. Ford~ (P.'65 L. 23)_ Ms. welsh P. 66. _
_ The prosecutor first set forth the facts and legal theory (the gun was in applicant's truck, even if someone else (Ms. Campbell) claims they own it,'it is still in applicant's possession.' Vol.3 P.65-68 L.5-8 Mr. CALVERT: Are you okay with what we were talking about, that somebody could not own something'and not even physically be in possession; but they can still be i-n possession of it? you okay with that? This represents the exact facts and exact lack of evidence the state was fixing to present. For' the verinemembers were asked how they felt about convicting someone based upon these facts. Any juror that refused to convict based upon this lack of evidence or legal theory were struck.' This clearly violated Applicant' s 6th and 14th -Amendment right to a fair and impartial jury and trial. U.S. v. webster,,.v 162 F.3d 308,341 (5th Cir. 1998)(The 'Sixth Amendment right to a fair trial includes the right to an impartial jury Mrg_ag_v_._gl_ing_ii, 504 U;S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)"'). Because the jurors were already conmit_ted to convict applicant based upon this particular set of facts they"were no_ longer impartial. M, 810, S.w.2d 786,789 (Tex.App.-Houston "['14th»111»'st1 _1_991):
"The Court of Appeals in affirming the trial court stated: "the policy behind _ the above rule is that voir dire is designed to insure impartial jurors, but" if jurors are forced to commit themselves prior to the trial as to how they:_, would consider certain facts or testimony, then the case is being tried on 1 voir dire and the jurors are no longer impartial." _
For sure the prosecution' s questions were designed to bring out the jurors views on the facts of the case that was fixing to be trial. Atkins v. State, 951
s,w.zd 787,789 (Tex.cr.App.1997):
"'...By asking the veniremembers if they could convict ~ based on the hypothetical given, the State was not explaining the law but was seeking to commit the venire to a particular set of facts.'"). See also Paustian v. State, 992 S.w.2d 625,627-28 (Tex.'App.El Paso 1999)(,"while it is proper to use hypothetical fact situation to explain the application of the law, it is NOT proper to inquire how a venirperson would respond to a particular circumstances presented in a hypothetical question...The State was NOT explaining the law, but was seeking to commit the venire to a particular set ' of facts. Atkins, spura., 789'. Every veniremember who ultimately served on the jury was asked individually that same question by the State. This type of question using hypothetical or otherwise, is improper-and serves NO PURPOSE OTHER TllAN to commit the jury to a specific set of facts prior to presentation ' ` of any evidence at trial.“ Id at 789");
There should not remain any doubt that the prosecutor used the exact facts of the case. He asked all veniremebers row by row how they felt and the ones that did not agree to convict were struck. These questions were specifically designed to bring out th_e veniremembers views on the facts of the case,that was going to tried. See Paustian v. State, supra. at 627:
"Although it is proper to question juror‘s views and sentiments on social and moral subjects generally, lthe courts do not permit a hypothetical cases to be submitted, nor do they allow questions designed to bring out the juror‘s views on the case to be tried." ` `
The prosecutors questions did in fact bring out the juror‘s views not only on the case to be tried `but also of the evidence the state was going to present and how the juror‘s viewed this evidence. The record verifies that the prosecutor used the voir dire to question, interrogate and investigation the jurors views of this specific case. Thereby handpicking a jury to convict appellant upon the evidence and lack of evidence the State was going to present. Brandborg v. Lucas, 891 F.Supp. 352,358 (E.D.Tex.1995): l
"However, jury selection is 'not to afford individual analysis in depth to permit a party to choose a jury that fits into some mold that he believes g¢i)pr<))pri:te for his case.' Shclinsky v. llnited States, 379 F.2d 735',_ 738 (1st
Applicant will now set forth the facts in the record establishing how the prosecutor capitalized on his unconstitutionallycommitted jurors. The prosecutor from the start of trial "Opening Statement" started reminding jurors of their commitment by` letting them know "its applicant truck." P. 23 L.6-7 Mr. Greer and Ms. Campbell -- were located together. they were in Mr. Greer's pickup. HE OllNS I»T. The prosecutor had his very first state witness Terry Young testify it was applicant's truck P.34 L.24-25 "...you said earlier, there was nobody else in the Defendant's
truck, right? P. 35 L.1 A. That's correct, sir. The prosecutor continued to argue to
the juror‘s it was ~appl‘i'caht's truck even though he "knew "it fwas not'~'. ;"Be,cause trial counsel _ had this very witness admit it was not applicant's truck.-Vol. 4 P.72 L.24-25 P.73 L.1-5. "Q.' Now, the vehicle that Mr. Greer was driving; that is actually registered to a Kenneth Greer, is that right? A. Yes, sir. Q. And so, that would be--that would be David's dad, and not actually David, it that correct? A. Yes, sir.
At this point the prosecutor knew it was not applicant‘s truck, to obtain a conviction he had to convince the jury it was applicant's truck because they had already committed themselves to do so. The prosecutor reminded jurors of their commitment during voir dire that they would convict applicant if the gun was in his truck but was not physically in his possession. Vol.4 P.177 L.20-21. The prosecutor pounded this point into the jurors minds until it was literally the last words they_ heard. "Its his trick, Its his truck." Its his truck before they begin to deliberate. Closing arguments P. 178 L.24-25v "...It's his vehicle. .There is no question. NONE.’ we are beyond a shadow of a doubt. The vehicle was h'is. P. 179 "...It's registered to his parents', but it's his truck. That's his truck (remember the jury committed to convict if the gun is in his truck)... Because it was in his vehicle that he was driving..the gun was_ in his truck. P. 180 L. 25 Its his truck.` P.182 Driving his truck, within one minute of the jurors being excused to begin deliberation.
Because of these actions of the prosecutor, applicant was denied his 6th and 14th Constitutional Amendments- right to a fair and impartial trial and jurors. For these reasons this writ should be granted and a new trail ordered.
HR'OUND OF ERROR NO. 5: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL BY PAINTING A FALSE PICTURE, USING FALSE TESTIMONY AND, EV_IDENCE TO GBTAIN A CONVICTION wHICH DENIED APPLICANT A FAIR AND IMPARTIAL TRIAL IN VIOLATION OF APPLICANT'S 6TH AND 14TH AMENDMENT RIGHTS OF THE U.S. CONSTITUTION.
STANDARD OF REVIEw: PYLES Vs JOHNSON, 136 F.3D 986,996 ('STH CIR. 1998) TO OBTAIN A REVERSAL BASED UPON PROSECUTGR'S l|SE OF PERJURED TESTIMON¥ OR FAILURE vTO CORRECT SUCH TESTIMONY A HABEAS PETITIONER MUST DEMONSTRATE THAT 1) THE TESTIMONY wAS ACTUALLY FALSE, 2) THAT
STATE KNEw IT wAS FALSE AND 3) THE TESTIMONY wAS MATERIAL. In this case the State had the burden to prove three essential elements beyond a reasonable doubt. 1) that applicant was a convicted felon within the last five years .or still on parole; 2) that he was in possession of a gun; 3) the gun was a firearm. The first element was self proven because applicant signed a stipulation
that he was a convicted felon still on parole at the time of'the offense. Vol. 6
P. 17 Ex. 14. Accordingly the state only had to prove the two remaining elements to . 'be entitled to at guilty verdict. The record verifies the prosecutor used false testimony and false evidence to prove them. Then maximized the effect of the false evidence had on the verdict by informing the jury they were not required to base their verdict on proof beyond a reason doubt. Vol. 4 P. 165 L.12-15.
As previously shown the prosecutor had hand picked his jury to fit his mold. A jury that had committed themselves to convict applicant if the gun was found in applicant' s truck. Vol.3 P.41- 44. Additionally committed themselves to convict applicant of possession of the gun in his truck if someone.else testified it was their gun. P.65-70;
l Now to establish the prosecutor knew each time he stated or a witness testified the truck or vehicle belonged to applicant was false.' The State's first witness Deputy Terry-v Young testified on cross-examination v(Vol.4 P.72-73 L.24-25,1-5) that applicant's father was the registered owner and not applicant. Because this witness knew before trial it was not applicant's truck the prosecutor is legally accountable for this same knowledge. See Carriger v. Stewart, 132 F. 3d 463, 480 (9th Cir.1977).
Therefore the prosecutor knowingly and intentionally had officer Young commit aggravated perjury by carefully manipulating his testimony, by having him testify that the registered owner was Greer and it was applicant's truck. Vol.4 P.31. L.1-2 P.32 L.10-14,P.33` L.7-8 Q. weapons drawn pointed at the Defendant's truck? A. Some did, yes sir. P. 34 L.24-25 you said earlier, there was nobody else in Defendant's truck, right? P.35 L.1 That's correct sir. P. 56 L.13-16.
On cross-examination the false statements'of~the prosecutor and perjured testimony was fully exposed by proving the truck was owned and registered to applicant's father 'M' applicant. F.72-73 L.24-25,1-5. Not to be impeded by the truth, the prosecutor once_ again had Young confirm the truck was applicant’s. Vol.4 P.154 L.21-25 P.15_5 L.1. The prosecutor also had officer ware confirm under oaths that the truck was applicant's. Vol.4 P.158 L.1-3. The prosecutor begin to embed and multiple the impact this false evidence would'have on the verdict by compiling credibility for this lie, by falsely stating applicant's only witness testified that it was applicant's truck. Vol. 4 P. 179 L.1-2. "Monishia told you that. It‘ s registered to his parents, but that' s _lis_ truck. That-' s h_i_§ truck." The record is "_v_O_IL'L! This testimony does not exist. A classic example of telling one lie to cover up for another lie. The prosecutor then maximized the vital and key role this false testimony and evidence would have on the jurors' deliberation to secure a guilty verdict. By simultaneously reminding the jurors of their commitment during voir dire
and how this false evidence has decided this for them that applicant is guilty. Vol.4 P.179 L.10-15 “.’..the lone issue in front of you 'is _M po_s_sg;i_grl. There can be' no dispute. Again, we are there beyond a shadow of a doubt that`this man was exercising care, custody, control or management over that pistol. w_e _I_<____now embed this false evidence into the hearts, minds. and souls of each juror to exacerbate the influence it would ultimately have on their verdict. The prosecutor pounded it until the very last minute.v P.180 L.25.` P.181L.1 "It's his truck. P.182 L. 22 "...driving his truck..." The fact that it was applicant's truck was still ringing in the jurors ears when they were released.
Additionally the record verifies the prosecutor painted a false picture of the evidence that he used to prove the second element of the offense, which is the gun was `a firearm. The prosecutor stated to the ljury this elements is self proven. Therefore, you need not concern yourself with this element. By stating the defendant signed a stipulation that it was a'firearm. Vol. 4 P. 164 L.5-7: "Because you k__now that was a firearm because that was stipulated to..."
Once again the record verifies this evidence does not exist. The prosecutor painted a false picture of the evidence to prove his entire case. e. g. possession of a firearm. See Pearson v. State,_ 649 S.w.2d 786,789 (Tex.App.Forth worth 1983)(“Certainly, we know reversal must follow where the prosecutor deliberately presents a false picture of the facts by knowingly using perjured testimony. Citing Means v. State, 429 S.w.2d 490 (Tex.Cr.App.1986).").
The jury had sworn to follow the law and was left but one choice to vote GUILTY, GUILTY, GUILT¥---12 times unanimously! There can remain no doubt that using false evidence to prove the only two remaining elements rendered applicant's trial fundamentally unfair. Also that there exist a reasonable probability that this wealth of false evidence effected the judgment of the jury.
Prosecutor next painted a false picture of the evidence for two reasons: The first reason: lTo cover up the fact that there was three jackets in the truck, a red flowery satin jacket, 2) -a camouflage jacket 3) a black leather jacket. . The second reason:-To inject his own opinion that applicant's only witness was a liar. Vol. 4 P. 180 L.‘13-14 why? And we know beyond any shadow of a doubt Monishia lied and -lied and lied. Daggan v. State, 778 S.w.2d 465,469 (Tex.Cr.App.1989)("Nor does it matter that the falsehood goes merely to an issue of credibility. See N_aLe, surpa ("A lie is a lie no mater what its subject...").
There was three jackets in the truck applicant's camouflage jacket with hood on
it Vol.4 P.128 L.12-13. The red flowery ‘satin jacket Ms. Campbell was - wearing§ P. 128 L.8-9. Also the black leather jacket the gun was allegedly in. Prosecutor needed to prove there was only two jackets in efforts to hedge the evidence to secure a conviction. Therefore, prosecutor repeatedly had his witnesses falsely testify that the jacket Ms. Campbell was wearing was camouflage. R. Ledesna. P.83 L.1 P.144. L.19. '
During closing arguments the`prosecutor used this false evidence to persuade the jury that applicant's only witness was a liar. P¢166 L.17-19 _"...she said she~ was wearing a different jacket that day. She wasn't, she in fact was wearing a camouflage jacket._" To establish tha-t the aforementioned testimony is false simply view the video which establishes the state knew the witnesses'_testimony and the prosecutors arguments were false. _ `
Any reasonable likelihood of the effect of`this overwhelming false evidence may
not have had an injurious effect on the judgment of the jury was placed beyond reproach by the prosecutor committing the structural error of falsely telling the jury their verdict did not have to be based on proof beyond a reasonable doubt. Vol.4 P.165 L.12-15. The chance of a fair trial disappeared like one drop of water on a red hot skillet "poof." ' what really makes the prosecutor's_ action so intolerable is the fact he had the ' evidence (that the truck did not belong to applicant) which destroyed his theory of conviction and he had a duty to not mislead the jury but chose to repeatedly paint a false picture to secure a conviction. Brow v. Borg, 951 F.2d 1011,1015 (9th Cir,1_991); "see also U.S.-v. Blekey, 14 F.3d 1557,1560 (11th Cir.1994)("[A] prosecutor must refrain from improper methods calculated to produce a wrongful conviction."). Actually there is more than the required reasonable doubt that the false evidence effected the jury verdict to require'reversal. westly v. Johnson, 83 F.3d 71`4,726 (5th Cir. 1996). ' -
The prosecutor use of false testimony to prove all the remaining elements then falsely telling the jury that the proof did not have to be beyond a reasonable doubt denied applicant his right to a fair and impartial trial in violation of the 6th and 14th Amendments of the U.S. Const. Therefore, this_ writ should be granted and a knew trial ordered. `
GROUND OF ERROR NO. 6: THE PROSECUTOR DENIED APPLICANT A FAIR TRAIL IN` VIOLATION OF THE 6TH AND 14Tli AMENDMENTS OF THE 'U.S. .CON_ST. BY MAKING MISSTATEMENTS OF THE LAw. 4
STANDARD -OF REVIEW: ROSE V. JOHNSON, 141 F.SUPP.Zd 661,707 (S.D.TEX.ZOOl): "IN DETERMINING wHETHER THE PROSECUTOR'S REMARKS PREJUDICF.D
DEFENDANT'S SUBSTANTIVE RIGHTS, THE COURT ASSESS (1) THE, MAGNITUDE OF THE STATEMENTS (2) THE EFFECT OF ANY CAUTIONARY INSTRUCTIONS GIVEN, AND (3) THE STRENGTH OF THE EVIDENCE OF THE DEFENDANT'S`GUILT."
The prosecutor misstated the law during voir dire regarding applicant's 5th Amendment right to remain silent and not tes'tify. Vol.3 P. 85 L.7-9. MR CALVERT: You might incriminate somebody else right? Can anyone think of another one? Then the prosecutor misstated the law which involves applicant's most substantial structural right which is so pre`cious that it violates the very foundation of American citizens right vto trial by jury is based upon. That the state must prove their guilt "beyond a reasonable doubt". Vol.4 P.165 L.12-15. '...you are the finders of fact. You can find these facts and add them up. It does not have to be beyond a reasonable doubt‘..." Bear in mind mat this point in the trial the jury charge had already been read. Also that the judge gave this is seal of approval by not correcting it.
3 Applicant will concede at this point his counsel did not object to either of ,these misstatements of law. But because these remarks of the prosecutor are manifestly improper and violates mandatory statutes that the prosecutor will not misstate the law to the jury or engage in improper conduct to obtain a wrongful conviction, as such this error was not waived.l wills v. State, 785 S.w.2d 378, 385 (Tex.cr.App.1989): b t '
"That is, jury argument error will not be waived»for failure to object where the argument is manifestly improper, or violates some mandatory statute, or injects some.new fact harmful to the defendant‘s case. Mathews v. State, 635 S.w.2d 532,539 (Tex.Cr.App.1982); walthall v.State, 594 S.w.2d 74 (Tex.Cr.App.1980). In making the determination of whether a statement is manifestly improper, harmful prejudicial, courts are to look at the record as a whole." '
By the prosecutor seeking the jury to base their verdict on less evidence and proof than beyond a reasonable doubt is an illegal method to secure a wrongful conviction. See U.S. v. Blakey, supra. at 1560; United States. v. Rodriguez, 765 F.2d 156,159 (11th Cir.1985). It's manifestly improper to falsely state the law regarding applicant's U.S. 5th Amendment. This violation in conjunction with the request that the jury can base its verdict on less than reasonable doubt are manifestly _improper. These remarks and the closing arguments were not only objectionable but- were clearly improper, For these comments to be considered harmless the evidence against applicant must be overwhelming. U.S`. v. .»B'-l:~akey,- supra. at 1560-61. As thoroughly explained in ground of error~-No._£`;. The evidence is a far cry from being overwhelming. This error of the prosecutor should be considered a structural
error due to the fact it effects the framework within which 'a trial must proceed
rather than simply an error in the trial process itself. Pyles v. Johnson, supra. at 993 ("Structural error is error 'effecting the framework_within. which a trial proceeds itself.’ Fulminante, 499 U.S.' at 310, 111 S.Ct. at 1265. By it's very nature, structural error 'def[ies] analysis by 'harmless error' standards. Id at 309,* 111 S.Ct.at 1265.'"). Furthermore this error (violation of Texas Penal Code 2.01) was reasonably calculated to injury applicant by denying him his due process rights to a fair trial in violation of the 14th Amend. of the U.S. Cons'titution. Moore v. State, 848 S.w.2d 920,922 (Tex.App.-Houston [1st Dist.] 1993). Additionally bear in mind g cautionary instructions M given. Because the error instructed the jurors they couldn based their verdict on less proof than the law requires, there is a reasonable probability that the results of the proceedings would have been different absent this error. Therefore, th=is writ should be granted and a new trial ordered.
GROUND OR ERROR NO. 7: THE PROSECUTOR ILLEGALLY COMMENT-ED ON APPLICANT'S RIGHT TO REMAIN SILENT WHICH DENIED APPLICANT HIS UNITED STATES‘ CONSTITUTIONAL 14TH AMENDMENT RIGHT TO A FAIR TRIAL. '
GROUND 0F ERROR NO. 8: THE PROSEC\ITOR'S MISSTATEMENT OF THE LAw REGARDING
APPLICANT'S RIGHT -T0 REMAIN SILENT wAS ILLEGALLY USED TO POISON VENIREPERSONS
TO DENY APPLICANT 6TH AND 14TH AMENDMENT RIGHT TO A FAIR TRIAL.
This is the very unique case in which Applicant's Fifth Amendment right to remain silent (not testify) is placed in a real peril. Because the venirepersons (jury) will be informed before trial begins that applicant is a convicted felon. Therefore, applicant is in grave danger of being tried and convicted for being a criminal in general. Vol.3 P.90 L.5-13: "VENIREPERSON NO. 43~: I think where I struggle with it is that each--each on its own, I probably could; but when you put the two together, you know, having the past felony and then choosing to not speak for himself, each one erodes the credibility. So, I think it becomes easier in my mind to prove the--without reasonable doubt, that there was a law broken because each one promotes a little bit more on top. so, it becomes a little more difficult." P.91 L.3-9. VENIREPERSON NO. 39: I just couldn't say. I would try very hard not to hold that against him; but, especially, you know, having a past felon; and if_ - he's---it would be very--psychologically, I don't think I can. It would--I'm afraid 1 might tend to hold it against him. And if his lawyer is telling him that, get a new lawyer."
As such any comment by the prosecutor that applicant may have other felony conviction(s) or have something to hide would be highly prejudicial thereby denying applicant a fair trial. when judging the actions of the prosecutor bear in mind by
his own admission he is both a seasoned attorney and prosecutor. P.91 L.12-13 "...Ms. Nelson, because I'm somebody who's been--I've done both'jobs. I've been a criminal defense attorney, too."
Therefore, the prosecutor was well trained in the effects his direct comments and alluding to others would have on this jury panel. Because of his training his actions were strategically designed to achieve the desired results.
Ironically just seconds before the State begins speaking on the Fifth Amendment a venireperson starts speaking._`_.about his roommate having a firearm in his possession and he knowns 'he is not suppose to have a firearm it's his fault for not telling. Because appellant did not tell his is guilty of‘possession of the firearm§ P. 81 L.18-21. VERIREPERSON NO. 48: "...if I know my roommate has a gun in the house and I' m not suppose to have a firearm in my possession, the that's on me. I know that he has it in the house."
The prosecutor knew before trial that applicant's main defense was going to be his girlfriend was going to testy the gun that was in the truck was hers. Vol.4 P. 26 L. 5- 6. The prosecutor quickly seized upon this belief that if you don' t tell on someone then your guilty. P. 81 L. 22- 23. MR. CALVERT: Sure. Sure. At this point, through -- and that' s Fair.'}' The prosecutor then pounced_ upon this opportunity vto strategically implant into the minds of all venireperson's that the 5th Amendment includes the right to not tell on someone else. P.82 L.8-13. "MR. CALVERT: I understand. Okay. Can anybody tell me what that is? The Fifth Amendment to the United States Constitution? The Fifth Amendment is protection against self--" VENIREPERSONS: Incrimination. This fact and misinterpretation of the law was solidified and cemented into all lvenierpersons by the prosecutor. P. 85 L.7-8. MR. CALVERT: You might incrimination somebody else, right? Can anybody think of another one? This soliciting lead to a verireperson to come up with the ideal that the reason applicant would not testify is he had something to hide. P.84 L.17-18. VENIREPERSON NO. 5: And as a juror, I would look at, okay, what is that person afraid to say on the stand? what are they hiding?
The prosecutor quickly gave this ideal his seal of approval. P.84 L.20-21. "MR. CALVERT: Sure. And absolutely. That's a fair way to feel. This ideal that applicant had something to hide and the prosecutor would bring it out on cross-examination, -was hopelessly embeded into all venireperson".s minds by seizing the moment to implant into~ their minds a real world example of some things that applicant may wish to hid'e. (Bea'r in mind at this point the prosecutor had secretly recorded his interview with Ms. Campbell Vol.4 P.126 L.2-5 as such he knew that
Ms. Campbell was going to testify that ~her and applicant were having a heated argument). The following " event took place Vol;3 P. 86 L.18-15 P. 87 L.1. MR. cALvERl;v L'et me--that's absolutely let me kind of give you a real world example. we_tried a case in here, I guess just a week or two ago where a guy was charged with the offense of assault, okay, on a girlfriend. And he assaulted--or had been accused of assaulting not one, but two other girlfriends previously, right? And there was a real danger that if you testify and say something, it might open the door to us getting into these other girls right. The prosecutor knew that the evidence was going to reveal this heated argument. The prosecutor capitalized and carefully implanted this seed into the jurors' mind that applicant may_have also hit his girlfriend and this is the reason 'he may not testify. He was scared this may come out on cross-examination.
_ At this point in the jury selection the entire jury pool was hopelessly poisoned beyond rehabilitation, no amount of objections or curing instruction(s) could have insured applicant would receive a fair trial. No court has better made this clearer than in the opinion ill greg v. Frgghagf Corpgration, 554 F.2d 1304; 1310 (5th Cir. 1977): ("Furthermore, the cleansing effect of the cautionary instructions in the case is dubious for, as the trial judge himself observed during ‘trial, ‘[Y]ou can throw a skunk into the jury box and instruct the jurors to not smell it but it doesn't do any good."). See also Hicks v. State, 815 S.w.2d 3299, 303 (Tex.App.-Houston [1st Dist.] 1991).
The prosecutor's comments and lack of any curing instructions which by the way would have been totally worthless which combined to deny applicant a fair trial. As such these errors of the prosecutor's denied applicant his 6th and 14th Amendments right to a fair trial. Therefore, this writ should granted a new trial ordered.
GROUND OF ERROR NO. 92 PROSECUTOR MISCONDUCT MAKING IMPROPER JURY ARGUMENTS DENIED APPLICANT A FAIR TRIAL IN VIOLATION 0F THE 6TH AND 14TH AMENDMENT 0F THE U.S. CONST. '
STANDARD 0F REVIEw: U.S. V. INSAULGARAT, 378 F.SD 456,461 (5TH CIR. 2004):
"IF AN IMPROPER REMARK wAS MADE, WE MUST DETERMINE wHETHER THE REMARK
"PREJUDICED THE DEFENDANT'S SUBSTANTIAL RIGHT." MUNOZ lUNITED STATES V. MUNOZ,
150 F.30 401 (5TH CIR.1998)] 150 F.SD AT 415. THE PREJUDICE DETERMINATION
INVOLVES "(1) THE MAGNITUDE 0F THE STATEMENTS PREJUDICE, (2) THE EFFECT 0F ANYA CAUTIONARY INSTRUCTIONS GIVEN, AND (3) THE STRENGTH 0F THE EVIDENCE 0F THE
DEFENDANT'S . GUILT." UNITED STATES V. TOMBLIN, 46 F.ZD 1369, 1389 (5TH
CIR. 1995). "THE DETERMINATIVE QUESTION IS wHETHER THE PROSECUTOR'S REMARKS
CAST SERIOUS DOUBT ON THE CORRECTNESS OF THE JURY VERDICT." UNITED STATES
V. IREDIA, 866 F.ZD 114,117 (5TH CIR. 1989)."
Permissible areas of jury arguments have been well established. See Mayberry
v. State,` 830 S.w.2d 176,178 (T'ex.App.-Dallas 1992)("Proper subjects of jury argument include (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to arguments of opposing counsel, and (4) pleas for law enforcement. Alejando v; State, 493 S.w.2d 230,231-32 (Tex.Cr¢App;1973);"
The first jury argument Vol.4 P. 164 L.'4-7: "So, what does this all boils down to a whole day spent on possession knowingly or intentionally possessing a firearm. Because you L_n_o_w th_at _v@ g firearm because L_U stipulated tp..." The ,.next involves the burden of proof the State must sustain ton prove its case. P. 165 L.12-15 "You are the finders of fact. You can find these facts and add them up. g A)_ei pgt__hpg g g beyond _a_ reasonable doubt..=." Additionally the prosecutor instructed the jury that the vehicle (truck) was applicant's Vol.4 P. 178 L.24-25, 179 L.2,14-15,20-21; 180 L.25; 181 L.1; 181 L.1; 182 L.22. The prosecutor went so far as t~o- lie to the jury as to what applicant's witness testified to by stating she witness confirmed twice that it was applicant's truck. P.179 L.1-2.
The State Additional ly instructed the jury on the issue of possession _in that it _ has already been decided solely based upon the fact the vehicle was applicant's. P. 179 L.10-15. "...the lone issue in front of you is M_t possession. There can be pp dispute. Again, we are beyond a shadow of a doubt that this man was exercising care, custody control or management over the pistol. we know that. why? Because lt _U _i_rl his vehicle that he ppg driving." None of the, prosecutor's arguments fits within the- four permissible areas. The first argument is totally false, there exist m stipulation that applicant consented that thg_gpn w§ a firearm. This first argument was designed and used to lower the State's burden of proof. F'That the appellant did possess a firearm. The second argument was clearly prejudicial as it was designed to unconstitutionally lower the State's burden of proof "beyond a reasonable doubt." This statement denied applicant his substantial right to fair trial by having a jury base their verdict on L§_S_S LOOF '(e.g. preponderance of the evidence) than the law requires "beyond a reasonable doubt". U.S. v. wise, Supra at 152. Also it violated state law; Texas Penal Code §2.01. There is no escaping the fact that these two arguments were both designed and did in fact lower the State's burden of proof thereby effecting the jury verdict. k The last two arguments will be grouped together. These two arguments are false. The State's very first witness testified on cross-examination that the vehicle (truck) was owned by applicant's father-and not applicant. Vol.4 P.72 L.24-25 P.73 L.1-5. As stated by the prosecutor because the gun was found in
applicant's truck it was in his possession. As such these two arguments used false
evidence to prove yet one more essential.element. The 4only remaining element was stipulated to. Therefore, the only two remaining elements the prosecutor's arguments proved them to the jury based upon false evidence. The harm was sealed by informing the jury the state did not have to prove their case beyond a reasonable doubt.
` The state's arguments injected new non-existing evidence into the case and instructed the jury this false evidence and testimony proved their case. As such these comments cast doubt on the verdict. Each argument nms improper, the
,evidence is unambiguously clear that the cumulative effect of these errors were designed and did effect the verdict which denied denying applicant a fair trial in violation of the 6th and 14th Amendments of the 0.$. CONST,
The State's case was extremely ueak. Even .the trial judge agreed that applicant was never identified (by any officer) before he was simultaneously forcefully stopped and arrested» at gun point. Vol.4 P.108 L.12-17. The gun and jacket were illegally not listed on the required inventory sheet. There was no eyewitness. The gun was not in applicant physical possession. The truck it was discovered in did not even belong to applicant. The passenger in the truck testified at court `the gun belonged to her. Then explained why she had it e.g. for protection as she was recently the victim of kidnapping and rape. Therefore, the prosecutor's remarks were prejudicial.l MS. v. Insaulgarant, Supra. at. 461. As such this writ should be granted and a new trial ordered. ` '
GROUND OF ERROR NO. 10: PROSECUTORIAL MISCONDUCT DENIED APPLICANT HIS 6TH AND 14TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE 0F COUNSEL ON APPEAL.
Applicant is entitled to effective assistance of counsel on direct appeal by the 6th and 14th Amendments of the U.S. CONST. Lofton v. whitely, 905 F.2d 885,887 (5th Cir¢ 1990); Evitts v. Lucey, 105 S.Ct. 830 (1985). The number one requirement of presenting any issue on appeal is to be able to point to the record that supports to the error. Also it's appellant's/applicant‘s responsibility to provide sufficient record on appeal. Ex Parte Chandler, 182 S.w.2d 350,353 (Tex.Cr.App.ZOOS)("It is the applicant's obligation to' provide a sufficient record that support his factual allegations with proof by a preponderance of the evidence.). See' also lgpg; v. Director, TDCJ-CID, 550 F.Supp.2d 639,642 (E.D.Tex.2005):
"The Fifth Circuit has held that "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsubstantiated by anything else contained in the record, to be of probative evidentiary value."
Furthermore, see Duggan v. State, 778 S.w.2d 465, 468 (Tex.Cr.App.1989)“
"It shall be the primary duty of all prosecutors...not to convict, but to see that justice is done." Art. 2.01 V.A.C.C.P. This overriding duty falls upon the prosecutor in' his capacity as the State's representative.in criminal matters. As a trustee of the State's interest in providing fair trials, the prosecutor's is ...more than a mere advocate, but a fiduciary to fundamental principles of fairness.' See Berggr‘ v. Unite_d Sates, 295 U.S. 78,88 55 S.Ct;.'_629, 633, 79 L.Ed. 1314,1321 (1935)." - -
Additionally the Texas appeals courts have consistently ruled on the problem they face in trying to rule on claims of ineffective assistance of counsel on direct appeal is the underdevelop'ed record. Goodspeed ' v. State, 187 S.w.2d 390_,392 (Tex.Cr.App.2005). Even when the appeals courts have reversed cases on direct appeals only to have their decision overturned by the court of criminal appeals due
to the_ record being undeveloped. Bone v. State, 77 S.`w.3d 828 (Tex.Cr.App. 2002);
k by Rylander v. State, 101 S. w. 3d 107,110-111 (Tex. Cr. App. 2003)(In this case, like'the
majority of cases, "the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel' s actions."). :
For these reasons and courts decisions verifying that a undeveloped record is insufficient to obtain a`reversal on appeal. Therefore, the lack 'of the record of the conversations of the judge, prosecu`tor, trial counsel and jurors has insured the denial of an adequate record on direct appeal and now post-conviction proceedings. By not having an adequate record to support these issues. Tamez v. Director of_ TDCJ-CID, Supra. at 642. '
There are several critical times during the proceedings-that events were not recorded. The first being, Vol 3 P.5 L.3 (venire panel seated). The trial judge called ATTENTION: MR. ROBERT CASSENA' Veniremember No.6. As a fellow student and class member of Texas .A&M University. Additionally a famous sports writer f`or the local mews paper. The Bryan `Eagle. The judge made a special speech regarding Mr. Cessena's renowned accomplishments, then asked the "entire courtroom" for a round of applause for his close and dear friend that he obviously thought the world of. which the courtroom gave him. This unrecorded event clearly demonstrated the highly likelihood this friendship could effect the impartiality of this veniremember that was seated as juror No. 2 Vol. 3 P. 162 L. 8. This juror was "never" questioned by counsel or the prosecutor. This is a key inquiry during voir dire. Cadoree v. State, 810 S. w. 2d 768, 789 (Tex. Cr.App.-Houston [14th Dist. ] 1991).
Additionally a critical off-the-record discussion. Vol. 3 P.173 L.20. Applicant overheard portions of it:.Counsel openly revealed his representation of applicant represents a severe conflict of interest. Counsel revealed he works with the Brazos Co. Sheriff's Dept.', as a ride along which entails all of the State's witnesses as
'18
or potential Co-workers. This obvious critical evidentiary support is missing from the record. This critical evidence would have unambiguously verified counsel's representation was forcing counsel to serve two masters simultaneously. The-best interest of his co-workers who's hands he must entrust his very life in. The best interest of applicant (who interest ends upon the" completion of trial). In which case to prevail he would‘be forced to creditably expose his co-workers actions were corrupt, wrong or illegal. These missing records would have alerted appellant counsel to file as a ground of error ineffective assistance for not questioning this juror about his relationship with the judge. Montez v. State, 824 S.w.2d 308, 310 (Tex.App.-San Antonio 1992, no prt).. Also file a motion for new trial with supporting affidavit to fully develop the record of this conflict of interest. which _' would have been granted. Lucero v. State, 246 S.w.3d 86,94 (Tex'.Cr.'App.2008). The denial also_ has prejudiced applicant in his post-conviction proceedings. Because he is force to make bald assertions for ineffective assistance of counsel on these two issues and the Supreme Court has stated that is inadequate. Cuyler v. Sullivan, supra. at 1709.
Additional off-the-record discussions took place Vol.3 P.142 L.24 P.165 L.25. This missing word for word conversation involved the judge, prosecutor and trial counsel. Applicant did not over hear any portion of these conversations yet this missing records are potentially vital.
Additionally there is the matter of the missing jury note (Vol.4 P.183 L.15-16) which must be in the record also whether counsel was present and what efforts were made to secure applicant's presence. It is mandatory that this must be in the - record. 36.27 supra. see also U.S. v. Muraj, 947 F.2d 520,525-26 (1st Cir.1991).
Now for the most disturbing event that is totally missing from the record. 0nce the jury begin deliberating they sent out a note requesting to see the video. Vol.4 P.183 L.15. Applicant has included Ex.A. which is an affidavit which basically states the judge and the Prosecutor remained in the courtroom all spectators were cleared the judge then sulnmoned all jurors into the cleared courtroom the prosecutor re-set up his personal lap top with his power point presentation and they all engaged in a ex parte viewing of the critical inculpatory video with the prosecutor being their personal operator. Applicant nor applicant's counsel was present. we know this much that once this private viewing with the Judge and prosecutor was concluded the jury quickly returned a verdict of guilty. Exactly what all the judge and the prosecutor said to the jury for sure some words were spoken between them during this exclusive meeting, all of which are considered illegal ex parte
conmlunications. This is an extreme violation of applicant's 6th and 14th Amendment
right to a fair trial. See U.S. v. Smith, supra. at 471:
"It's well-settled that once the jury has begun to deliberate, counsel llll$T be given an opportunity to be heard before the trial judge responds to any jury inquiry Rogers v.. United States, 422 U.S..35, 95 S._Ct. 2091, 45 L.Ed.2d 1 (1975); united States v..widgery, 778 F.2d 325 (7th Cir.1983). This rule is grounded in.Fed.R.Crim. Proc.43(2)'s [this same requirements is codified in Texas State Court‘s Tex.C.Crim.Proc. 36.27; Revell v. State, supra.,at 211 and is mandatory noncompliance is reversal errorl requirement that a criminal defendant be present "at ever stage of the trial-', the Sixth Amendment's Confrontation Clause, and the Due Process Clause of the Fourteenth l Amendment. Thus, unless waived discussion concerning the jury inquiry and court response must take place on the record in the presence pj_ _tg defendant.
Id. lU.S. v. widgery, supra.] g 327."
Applicant has established~both harm and prejudice due `to these instances of prosecutor misconduct therefore, either`these missing portions of the _record be supplemented and applicant be granted an ou‘t-of-time appeal or a new trial be
ordered.
GROUND 0F ERROR N0. 11: THE TOTALITY 0F THE ACTS 0F PROSECUTORIAL MISCONDUCT` DENIED APPLICANT HIS 6TH AND 14TH U.S.CONST AMENDMENTS RIGHTS T0 A FAIR TRIAL.
STANDARD OF REVIEw: wESTLEY V. JOHNSON, SUPRA AT 726:
' "[t]HE EN BANC COURT RECOGNIZED AN INDEPENDENT CLAIM BASED ON CUMULATIVE ERROR ONLY wHERE “(1) THE INDIVIDUAL ERRORS INVOLVED MATTERS OF CONSTITUTION DIMENSIONS RATHER THAN MERE VIOLATIONS OF STATE LAw; (2) THE .ERRORS wERE NOT PROCEDURALLV DEFAULTED FOR HABEAS PURPOSES; AND (3) THE ERRORS 'SO INFECT_ED THE ENTIRE TRIAL THAT THE RESULTING CONVICTION VIOLATES DUE PROCESS. ID., [DERDEN V. MCNEAL, 978 F.20 1453 (5TH CIR. )] QUOTING CUPP V. NAUGHTENM, 414 U.S. 141,147, 94 S.CT. 396, 400, 38 L.ED.ZD 368 (1973). MERITLESS CLAIMS OR CLAIMS THAT ARE NOT PREJUDICIAL CANNOT BE CUMMULATED, ’REGARDLESS OF THE TOTAL NUMBER RAISED. DERDEN, 978 F.20 AT 461."
1). Before the trial started the prosecutor with held brady material, and inclusion of the same in the record. e.g. dispatch log, and audio recording of his interview with Ms. Campbell. This evidence could have\been used to not only to impeach the creditability of the State's witness, but also to prove the initial stop was illegal and resulting confiscation of the gun was illegal "n_o_qup case“. Also this secret recording could have been used to further establish by record references that the prosecutor used the facts of the case to handpick a jury and commit them to convicting applicant based upon his mold.
2). The above error was compounde'd“by the prosecutor not producing Officer Ficke and the CI for. cross-examination. Meledez, Supra, at 328. This is'true because Officer Ficke prepared the vehicle Inventory Report, therefore, applicant had a
right to cross-examine him. Id. at 326-328. No testifying witness personally
identified applicant before he was stopped and arrested at gun point. Only the CI identification was introduced at trial and then only by hearsay. Therefore, applicant had a right to cross-examine the Cl. Id. at 328. ` _
3). Additionally the acts of misconduct by the prosecutor were exacerbated by _ the effects`these cumulative errors by misstating the law dealing with applicant's 5th amendment right to remain silent. "he might incriminate someone else." Also by implanting into they jurors mind to consider evidence that does not exist e.g. that applicant may not testing because he beat up his girlfriend and he is scared this might come out on cross-examination if he testifies. Vol. 3 P.86 L.18, P..87 L.1.
4). The prosecutor unconstitutionally used void dire to hand pick a jury to convict applicant based upon: If the illegal item was found in his truck and is not in his physical possession and it did not even belong to him (someone else claimed ownership) it was still in his possession. Vol.3 P.40 L.18. These are the exact facts of the case. Also bear in mind that the prosecutor hadn already investigated and secretly recorded his investigative interview with the only defense witness. Vol.4 P.126 L. 2-5. Therefore, he knew she was going to claim ownership of the gun. Also that she was going to state that her and defendant had a heated argument. The facts of his real world example. vVol. 3 P.86 L.18. All jury members were committed to convict applicant based upon the state's theory and mold of conviction. The ones that were not were struck. Vol.3 P.46 L.3.
These acts prejudiced applicant as it denied him) a fair and impartial jury. Adkins v. State, Supra. at 789. lie reminded the jurors of their commitment during closing arguments that they would convict applicant even if the gun was not in his possession. Vol.4 P.177 L.20. _
5). The prosecutor not only failed to correct false testimony and evidence but compounded its unconstitutional effects by actually using it to prove his case. Then consistently reminding the jurors of the false evidence. Then exacerbated its effect on the verdict by flat out lying to the jurors by telling them applicant's only
to convenience the jurors if she said its his truck then it must be his truck. Then immediately explained to the jury that the gun was in his truck so possession has been decided for you. P. 179 L.10-15. The false evidence was literally hammered into _the' jurors minds until they were released for deliberation. The prosecutor knew if he corrected this false evidence it would destroy his legal theory and his committed jurors to so convict. Brow v. Borg, supra at 1015, Adkins v. State, Supra. at 789. T_he record verifies that he used false evidence to secure a wrongful
conviction. Blake , surpa.-at 1560. This error has a cumulative effect with the other instances of misconduct. ` '
6). Next is the flagrant disregards for anything resembling ethical conduct. The prosecutor lied to the jury: "[y]ou know that was a firearm because that was stipulated to..." No such stipulation exist. In this case the prosecutor 'had to prove three elements: 1).Applicant was a convicted felony; 2) He possessed a gun, and 3). the gun was a firearm. The first element was actually self proven by an actually signed stipulation. _The last two were proven based upon false _and nonexisting evidence. _ _
7). This instant of misconduct spotlights the malicious intent of the prosecutor by abandoned his role as anl officer of the court and taking on the role of a criminal by violating the Texas Penal Code 2.01. Leaving nothing to chance he , told the jury your verdict does not have to be based on proof beyond a reasonable "'_"doubt. Vol.4 P. 165 L.12-15. The cumulative effect of this errors insured that any chance that applicant had at a fair trial by an impartial jury disappeared like smoke in wind storm. . . » .
8). Now the matters of misconduct that has effected applicant's right to effective assistance of counsel on direct appeal and now in his post-conviction proceedings in both state and federal court. As thoroughly explained, numerous portions of the trial records are missing. Also the recorded interview with Ms. Campbell that the prosecutor used to coerce and intimate her into testifying the wayhis wished. This is yet one more criminal violation (Tex.P.,C.36.05) the prosecutor used to secure the conviction. Also the missing jury note. Additionally the most flagrant act of misconduct, extensive ex parte communications with deliberating jurors. Vol.4 P.183 L.14-16. what was said by the judge and prosecutor to the jury after the begun deliberation. while . the prosecutor and judge provided them an inclusive private extended viewing. The prosecutor remained as the jury's personal video operator on his person lap top. whether counsel was present and what steps were taken to secure the presence of‘applicant. All this must be contained in the record. 36.27 Supra. Harm and prejudice is assumed and reversal must follow. Revell v. State, Supra.'at "211; word v. State, 206 S.w.3d 646,650 (Tex.Cr.App.2006). The missing vital portions regarding off-the-record discussions, denied appellant counsel the necessary evidence and knowledge to file a motion for new trial to further develop the record. Counsel would have been entitled to a hearing to do so. Lucero v. State, Supra. at 94. Had this been done and a full and a fully developed record presented on direct appeal there is a reasonable probability the results would have been
different. Stricklapg v. wa§hington, 104 S.Ct. 2052 (1984). Also this of lack the mandated record is now prejudicing applicant's ability to prove his counsel's conflict of interest. Cuyler v; Sullivan, Supra. at 1709, and other issues. lame; v. Qj£gctor’ of TDCJ-ID, Supra. at 642. The totality of the cumulative effects of these acts of prosecutor misconduct denied applicant's his right to a fair trial and effective assistance of counsel on direct appeal and now his chance to present an adequate record during post-conviction proceedings. All in violation of the 6th and 14th Amendment of the U.S. Constitution.
eRouND oF E"RRoR No. 12: THE TRIAL couRT DENIED APPLICANT HIS siu AND 14TH
AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL BY NOT PROVIDING
COUNSEL A COMPLETE COPY OF THE TRIAL RECORD.
As previously shown there was four off-the-record discussions. Also missing is the sustained lengthy session of ex parte communications between the 'judge, prosecutor and deliberating jurors. also the missing jury note, if trial counsel was. present, and what steps were taken to secure applicant's presence. U.S. v.$mith, Supra. at 471. The missing dispatch log(s) and secret audio recording of the defense_ witness. Vol.4 P.126 L. 2-51 These missing records denied appellant counsel the knowledge and record references to file an adequate motion for new trial with an affidavit in support, alleging but not limited to counsel's representation was under a severe conflict of interest. Cuyler, Supra. why counsel failed to question Robert Cessna about his relationship with the judge. Had counsel did so; a hearing on his motion for new trial would have been granted. Lucero v. State, Supra. at 94. This in turn would have provided appellant counsel the necessary record to raise these issues and others. The appeals court with the necessary records to rule on these issues and others. See R lander v. State, Supra. at 110-111.
Additionally missing is the stipulation that provided the prosecutor the right to introduce the video. Vol.4 P.34 L.12-17. The stipulation that the gun was a firearm Vol.4 P. 164 L.6-8; Also a copy of the alleged evidence sheet Vol.4 P.156.L.13-17. lt is well settled law that counsel on direct appeal can not argue outside the record. Also that the state of undeveloped record often requires the appeals court(s) to deny claims. Id at 110-111. '
Had appellant counsel- had these missing records he could have brought these issues on direct appeal. Therefore, there is a reasonable probability the results of the direct appeal would have been different. Strickland, supra.
GROUND 0F ERROR NO. 13: APPLICANT wAS DENIED HIS RIGHT T0 EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS 6TH & 14TH AMEND. 0F THE U.S.CONST.
STANDARD 0F REVIEW: Strickland v. washihngton, 466 U.S. 668,104 S.Ct. 2052,2064-74, 80 L.Ed.2d 674 (1984):
Claims of ineffective assistance of counsel in a criminal case is evaluated under the two-prong test set forth in the U.S. Supreme Court's decision in Strickland. Strickland v. washington, 104 S.Ct. 2052 (1984). To succeed on a claim of ineffective assistance of counsel, the defendant must shows (1) that his attorney's representation fell below an objective standard of reasonable- nes_s; and (2) that due to counsel's unprofessional errors the results of the proceedings would have been different. Strickland, 466 'U.-S. 687-88. A court must indulge a strong presumption that counsel' s conduct falls within the wide range of reasonable professional assistance. 80 L. Ed. 2d at 682. Strategic choices made by counsel after a through investigation of the law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than a complete investigation are reasonable precisely to the extent that reasonable professional judgments support limitations on an investigation. The Strickland standard applies to a claim of ineffective assistance of counsel arising under 6th and 14th Amendment of the U.S. Const. `as well as Article 1 §10 of the Texas Const. Hernandez v. State, 726 S.w.2d 53 (Tex.Crim.App.1986). while the courts normally looks to the "totality of the representation" and "particular circumstances of each case." In evaluating the effectiveness of counsel, Ex parte Raborn, 658 S. w. 2d 602, 605 (Tex. Cr. App.
1983), we have also found that under some circumstances a "signal error of omission by ...counsel [can] constitute[] ineffective assistance of counsel. Ex Parte Felton, 815 S. w. 2d 733, 735 (Tex.Cr.App.1991). "
Applicant will now by number set forth all the reasons counsel was ineffective.
1). Counsel's was under a severe conflict of interest the entire time he was representing applicant. The evidence to establish counsel's divided loyalties was revealed in an off-the-record discussion. Vol. 4 P. 173 L.20. The essence of this discussion is set forth on Pages one and two of this memorandum. In short all the State witnesses are counsel's co-workers and making them look bad or exposing them to disci_plinary, civil or criminal charges in efforts to vigorously fight for applicant rights would have created a hostile work environment. white v. Reiter, supra.'at,599.
Applicant seeks an evidentiary hearing to develop the record on this aspect of ineffective assistant so he can do more than make a bald assertion which is not enough to be entitled to relief. Cuyler, supra. at 1719_. Accordingly when the' record is supplemented with the evidence applicant will supplement this `issue.
2) ."Counsel failed to properly preserve applicant's motion to suppress or urge a timely hearing before trial. To avoid duplication this aspect of counsel is fully developed in attached grounds of errors 14-16. “
3). Counsel failed to object when the state failed to produce the video (DVD) 20 ‘ days before trial as the law requires. Counsel did not receive the video until ' 10-30-12 which was only 14 days before trial. The trial judge strenuously warned the prosecutor if he did not provide this video to counsel in a timely manner he may not allow it to be used at trial. Vol.2' P.5 L.20-22. Therefore, counsel was given red flag to object to the untimely production. Had counsel objected. This objection
would have been granted if not it would have been an abuse of discretion. T.C.C.P. Rules 38.22(3)(5)(a), 39.14. Counsel's objection would have allowed him at least 6 more days. which would have provided him time to retained or consulted with an expert witness. which would have quickly lead to the discovery that the video has been seriously tampered with because it was commingled with three other Video's. This would have alerted counsel to object to its admission because it was no longer in its original state. Then counsel could have proven Brazos county did not have a Evidence control system. Therefore, they could not even begin to establish the proper chain of custody.*Cuba ‘v'. State, 905 S.w.2d 729,735 (Tex.App.-Texarkana _1995). As such this video would have been and is totally inadmissible, withoutr` this evidence there is a reasonable probability the results of the proceedings would have been different. Before the jury reached their verdict they requested to see this. video. Vol. 4 P.183 L.15. As` such the video was the linch .pin that resulted in the guilty verdict. 1 4). For agreeing to allow the State to enter a redacted version of the t inculpatory video and according to records signing a stipulation _to so allow them to do so without applicant's knowledge. Applicant established in ground of error 16 that the video was totally inadmissible. See Lyons v. McCotter, 770 F.2d 529_,534 (5th Cir. 1985)("To pass over the admission_of prejudicial and arguably inadmissible evidence may be strategic to pass over the admission of prejudicial and clearly inadmissible evidence, as here, has no strategic value."). t Furthermore, the trial judge thoroughly warned-the prosecutor and counsel that .any stipulation once trial begins must b_e i_rl writing. Vol. 4 P.19 L.20-22. In a criminal case the stipulation must be in writing signed by the applicant in open` court and approved and signed by_ the judge and filed in the record.' Ellard v. State, 650 S.w.2d 840,841 (Tex.Cr.App. 1983). See also Tex.C.C.P. Art 1.15. The record is void of any such stipulation. Even in the most liberal interpretation the complete terms‘of the stipulation must be in the record. If the complete terms don't appear in the record the stipulation is void and_ of no effect. See 'Howeth v. State, 645 S.w.2d 787,789 (Tex.Cr.App.1983)("The record of appeal is as bare as Mo_ther Hubbard's cupboard concerning what the "contents" l of the ordinance might be...nonetheless, the stipulation must be complete as~ to`the object of the stipulation."). Counsel was so grossly ineffective that he not only did not object to obviously inadmissible evidence but agreed to allow it to be admitted by illegal means. Id. at 789; Ellard v. State, Supra. at 481. The exact terms of this agreement of this stipulation is obviously unclear. Vol.4 P.' 34 L.12-17 "Judge the parties
."\
have a stipulation regarding the publishing of this exhibit. And pursuant to this stipulation --- Le__ca_n_m:_t tmit i_n _th_e_ record _l_a_t_L [never to do so]. MR. GRAY: we have an lagreement. P.142 L.18-25. "MR. CALVERT: Judge, at this point in time, we have previously offered States's Exhibit No. 3, pursuant to a stipulation with the Defense, certain portions of the audio were redacted.' [we have no ideal what portions were agreed to be redacted] For these purpose now, [It's obvious this stipulation has ever changing terms] we are going to offer all of the State's _ Exhibit No. 3 with the audio included." The record verifies the terms of' this alleged stipulation were not in the record and were obviously ever changing to what ever suited the prosecutor. with no objectios. Therefore, this stipulation is void. lloweth v. State, Supra. at 789. without this evidence there is a reasonable probability the results of the proceedings would have been different.
5). Counsel failed to object when the State failed to produce either officer Ficke or the CI. for cross-examination. Applicant had a constitutional right to ` cross-examine officer Ficke because he is the actual person that prepared the Vehicle Inventory Report. Meledez, Supra at L.Ed.2d 326-328. This denied applicant his right to subject this report to adversarial testing it in ~the crucible of cross-examination. Id at 326,328-329. This would.have determined but limited to whether the- gun and jacket were actually listed on a separate evidence sheet as' stated by counsel but does not exist in the record as is required by policy.\Also the non-existing chain of custody. This would have provided the necessary evidence applicant needed to have the motion to suppress granted. ' »_
Applicant had a right to cross-examine the CI as admitted after the state _rested their 'case; The only evidence in the record that identifies applicant in the vehicle is the CI Vol.4 P. 110 L.7-12. Counsel had articulated all the reasons he ‘had a legal right to cross-examine the CI: Vol.4 P.108 L.2-11 "...[o]nly that the person is reliable. we don't have any specific information as to, you know, the description of my client, large male.'lle was wearing a coat. He wasn't wearing a coat. The vehicle was a-black truck. small black truck. whether there was an LP--I mean, there's just--we just don't know these things." Then the trial court sanctioned applicant's constitutional right to cross-examine the CI. Vol.4 P.108 L.1-llc "THE COURT: All right. I'm a little more concerned about the fact that he was never identified in the vehicle, merely by a description of a confidential ~ therg gl_d i_d_entify him pefore they M _th_e vehicle M."‘ Counsel once again articulated the reasons he has a right to cross-examine the CI. Vol.4 P. 111
L.12-15. "...we don't know about any of the specifics, how he described my client, the vehicle, any of these things." ' v 4 Counsel at this point knew without this information there could have been no stop, no arrest, no search no gun and no 7case. Also knew applicant had a constitutional right to cross-examine the CI and he had the judge's support, yet he still failed to object. Meledez, Supra. at 328-329. This decision can not be considered trial strategy. Strickland, Supra. The CI's information which is the most vital evidence in the entire case. without it the police had no ideal applicant was any where around, lwhat he was driving _and more importantly that he had a pending arrest warrant that was only 12 hours old that only the City of Bryan Police Department were aware of, Vol.3 P.167 L.6. See also Vol.6 Ex. #1. without this vital information there would have been pp §tgp, pp arrest and pp search, pp gup, pp pa§e! Therefore, Applicant had a constitutional right to test the CI's description, and how he obtain this knowledge in a cubical of cross-examination. Meledez, supra at 328-329. Even` if it would have had to be in camera. Bodin v. State, 807 S.w.2d 313,318 (Tex.Cr.App.1991). Due to counsel's lack of objection which would have been sustained if not the ~judge would have abused his discretion. Id. at 328-329. Applicant was denied his constitutional right to subject this vital evidence to adversarial testing. These two witness were the very foundation of the state's case. without the hearsay evidence supplied by the CI_ there would have been no stop;arrest or subsequent confiscation of the gun. without a proper Vehicle inventory Report the gun would have been ruled illegally obtained and inadmissible. Colorado v. Bertine, 107 S.Ct. 738,743-44 (1987). Because this is the very nexus of thel evidence the State's case is founded upon and it was never subjected to adversarial testing, this error of counsel is a structural error it is not subjected . to a harm analysis. Gochicoa v. Johnson, 53' F.Supp.2d 943,950 _(w.D.Tex.1999)("In this Court's opinion, the error is instead a structural one, Abecause the error committed by counsel were so egregious that the prosecution's case was never subjected to meaningful adversarial testing. Thus, analysis under the prejudice prong of Strickland is not necessary.").
Also this one error of counsel alone is enough to find counsel ineffective. §_ 'Parte Felton, Supra. at 735. '
6). Failed to object to hearsay statements and request an immediate ruling.
The State was allowed to prove that applicant was the driver of the truck by hearsay testimony which was the most essential evidence in the entire case. If this
evidence was objected to and a ruling obtained the stop, arrest and subsequent search would have been ruled illegal, or at least this issued would have been ' preserved. t '
Officer Terry Young testifi-ed, that he could not and naturally did not identify applicant as the driver. Vol.4 P. 58 L.18-19. "I may have been about aggg_lg pp g behind everyone else._" Later on cross-examination by double hearsay that someone else learned from someone else that applicant was in the vehicle. Vol.4 P.75 »' L.8-10. "Investigator Ledesma had received information that Ms. Campbell and
Mr. Greer were together in the vehicle..."
Officer Ledesma testified that he could not and did not identify applicant as the driver before he was arrested at gunpoint by forceful detention. Vol.4`P. 82 L.2-3. "1 was in the vehicle_a_t t_he ye_ry_ M. _I came in after-- right after the stop." On cross-examination he admitted the only way he knew applicant was in the truck was by information related to him by the CI. Vol.4 P.88 7-11. "Okay. Prior to receiving that call from the confidential informant, you had no_ direct personal knowledge that Mr. Greer was, ip iac_t,_ _ip _tth particular vehicle~l j_s gl_a_t correct. L 131 §Lj._ After the state rested their case the judge agreed no one testified that they personally were able to identify applicant as the driver before he was arrested. Except by the description given by'the CI. Vol.4 P.108 L.12-17. "THE COURT: All right. I'm a'little more concerned about the fact that the was never identified in the vehicle, merely by a description of a confidential informant. And, yes, there were warrants out,l but they actually have to see him in there and
identify m- before Llle_y_pu_l_l__th_e vehicle M" The state agreed that the'only evidence in the record that identifies applicant as the driver before he was arrested at gun point was'the CI's.' Vol.4 P.110 L.7-12.' "[w]e have a known inform-- k a known person making a presumptive--a legally presumptively reliable tip to law enforcement that these two people are in this vehicle. That's t_h_e evidence that's i_n tg record-g f_ar_."_ Therefore, all parties acknowledged that the state was able to establish applicant.was the driver of the vehicle before he was pulled over only through hearsay testimony, Also the record clearly demonstrates counsel made no objection. This hearsay testimony was offered to prove for a fact that applicant was identified as the driver before being forcibly stopped. Counsel failed to"'object-to this inadmissible hearsay testimony, he therefore, wholly abdicated his role in_ the adversarial process, thereby depriving applicant of a fair trial. Gochicoa v. dohnson, 53 F.Supp. 2d 943,953 ((w.D.Tex.1999). See also Sanchez v. State 243
________9
S.w.3d 57,64-65 (Tex.App.-Houston [1$t Dist.] 2007) ("...counsel...failed to object _
to officer Morales‘s testimony as to what the confidential informant told him on the grounds that it was hearsay...here, the testimony in question did ppt_ reveal the details pf jgy; information provided tp_Morales."). This hearsay information effected applicant's substantial rights by allowing the state to prove this essential elements of case by inadmissible hearsay; Schaffer v. State, 777 S.w.2d 111,113 (Tex.Cr.App.1989). As such this case should be reversed. .
Had counsel objected to this hearsay his objection would have »been granted if not it would have been an abuse of discretion. See Schaffer v. State, Supra at 113, See also TEX.R.EVID 801(a). without this hearsay testimony there is a reasonable - probability the results of the proceedings would have been different.
7). Failed to object to backdoor hearsay statements and request an immediate ruling. ' _ when the prosecutor artfully asked questions of one witness about another person's demeanor, this is nothing less than the prosecutor soliciting backdoor hearsay (indirect hearsay). Vol.4 P.86 L.4-5,8-9.). See Schaffer v. State, Supra at 113 ("..,the hearsay prohibition through artful questioning designed to elicit hearsay indirectly, in short, "statement" as defined in Tex.R.Civ.Evid.BOl(a), now see Tex.R.Crim.Evid. 801(a) necessarily includes proof of the statement whether the proof is direct or indirect."). The prosecutors questions were designed to obtain hearsay indirectly which is still hearsay. Id. at 113. Had these 'statements been objected to the objection would have been sustained. If not it would have been an abuse of discretion. Id. at 113. without this hearsay there is a reasonable probability the results of the proceedings would have been different. Stickland, Supra. s , _
8). Failed to allow Applicant to review the video (DVD) even in the face of numerous requests before trial so he could make an intelligent and informed decision . to accept the state's plea offers or go to trial.
Applicant repeatedly wrote letters to trial counsel informing him he needed to watch the video so he could decided whether or not to accept the state's plea offers which were eight, five years prison time. The State went all down to two years State Jail right before voir dire. Because counsel failed and refused to do so _applicant's decision to reject the state's numerous plea offers were not an informed and intelligent decision. See Hill v. Lockhart, 106 S.Ct. 366,369 (1985)("...0ur concern in McMann v. Richardson [90 S.Ct.1441 (1970)] with the quality of counsel's performance in advising a defendant whether to plead guilty stemmed from the more general 'principle that all defendants facing felony charges are entitled to the
effective assistance of competent counsel."). Applicant's decision to refuse the State's plea offers is based upon counsel's failure and refusal to allow applicant to view the DVD.~ Thereby providing applicant the knowledge of the strength of the evidence against him. Because counsel refused and failed to provide applicant the '_ information he needed to make_a well informed decision, which is the core function of counsel during the time a defendant»is deciding whether or not to accept the State's plea offer. This failure of counsel rendered applicant's decision unintelligent, unknowing and involuntary. C/F Burk v. State, 80 S.w.3d 82,93 (Tex.App.-Fort worth 2003); Johnson v. State, Supra at 19 ("If, prior to trial, appellant had listened to the audiotape her overall strategy might have been substantially different. For example, she might have considered a plea."). `
Applicant's has now'a.ttached these numerous letters collectively as Ex.'s B 1-B 5. Once the DVD was given to counsel on 10-30-12 counsel only came to visit applicant once at the county jail during this time before trial, this visit only lasted 20 minutes at the most. _The video was at,least over one hour therefore, it was impossible for counsel to have shown it to applicant. Applicant has attached a copy of the jail visitation log as Ex-. C.
Had counsel allowed applicant to view this inculpatory DVD it. would have convinced applicant to plea guilty and accept the eight, five or two year State dall offers. The persuasive nature of the video finds support in the record. Vol.4 P. 183 _L.15. Once the jury viewed the DVD it persuaded them to find applicant guilty. For these reasons applicant's decisions to refuse the state's plea offers were unknowing,- unintelligent and involuntary decisions. Hill v. Lockhart, Surpa. 369. For this reason this writ should be granted and the plea offer be reinstated. _ v
9). Failed to object to the introduction of critical evidence without establishing a proper chain of custody.'e.g. Gun, DVD or jacket.
Counsel failed to discover that Brazos Co. Sheriff's Department did not have an evidence control system from the date of arrest to the date of trial. Therefore, it would have been impossible to establish a chain of custody for all the inculpatory evidence. Coupled with the discovery there existed no separate evidence sheet period. Contrary to counsel's belief. Vol.4 P.156. L.13-17. `
This error is cumulative to the fact counsel failed to discover and object to the introduction of the DVD because it was the product of four DVD's commingled into one. Cuba v. State, supra. at 735. Had counsel objected for these two reasons the objections would have been sustained and the evidence ruled inadmissible. If not it
would have been an abuse of discretion. Id. at 735. Also this would have preserved error for appeal. without this DVD there is a reasonable probability the results of the proceedings would have been different.
Regarding the gun and jacket the judge would have had to instruct the jury that this evidence has not been subjected to a proper chain of custody which effects its credibility. Id. at 735 Rule of Evid. 901. Had the judge not done so it would have been an abuse of discretion. 901 Supra. Therefore there exist a reasonable probability the results of the proceedings would have been different absent these errors of counsel. v 1 _ j
10). Counsel failed to object when the State stated that Applicant was: "only" in jail for the offense he is now convicted of. Vol.4 P.9-15 which is the hearing on the admission of jailer Lakeith McKinney‘s highly prejudicial and inflammatory testimony. This is true because, first it brings to the juror‘s minds, applicant is in the County dail wearing jail cloths, which in effect is illegally‘ trying applicant in jail cloths. 364 F.-Supp 335. Doing is so prejudicial it's automatic reversal error. Second that applicant is in jail for breaking the rules. P.12 -L.15. The judge asked "was -he in jail for anything else other than this particular cause of action? CALVERT: He was not judge." This is misleading and presents false facts and just plain lying to the judge. Duggan v.State, Supra rat 469 ("Nor does it matter that the falsehood goes merely to the issue of credibility. See M, Supra ("A lie is a lie no matter its subject..."). Because in fact applicant was in jail for operating a motor vehicle without registration, theft of 1,500-20,000 dollars magistrated in Brazos Co. on 5-19-12. warrning #427138. warrant #12-04020_-02, and a blue warrant. These three Ex.s are attached collectively as Ex. D-l,_DT-`?_',
Trial counsel's failure to object caused applicant harm because the state was allowed to use McKinny‘_s testimony under the false context that applicant was only in jail for_ a felon in possession of a firearm. So the statement of "I am in jail for breaking thev rules" can only be applied to that charge. when in' fact it didn‘t. Had trail counsel had _any kind of grasp of his client's, (applicant's) actual situation and asked_`for an immediate ruling on his'running objections, it would have been granted or it would have been an abuse of discretion. Applicant gave counsel a note during trial in efforts to get counsel to object to his testimony or impeach his credibility. See Ex. E. Counsel's refusal resulted in allowing the state to paint a false picture _of the evidence. Means v. State, 429 S.w.2d 490 (Tex.Cr.App.1986). Had counsel consulted with applicant, applicant would have
provided him a copy of the grievance that had been filed against this witness by
another offender in which applicant was a witness. Applicant has since tried to obtain a copy of this grievance. By applicant's father requesting it through a freedom of information act request. See Ex. F. This request was denied alleging there was a pending criminal investigation involving this jailer. Ex. G. Also Ex. H. which verifies the cause No. Also Ex.l. which is a news paper article in which this jailer was successfully indicted for sexually assaulting inmates, "jailer having sex with inmates.'f This grievance was` filed against this jailer for sexual harassment. This grievance could have been used to impeach his credibility. This _ would have provided the judge with evidence as to why this jailer was willing to lie. .This evidence would have severally undercut the already questionable probative value of this evidence. Gilmore v. State, 323 S.w.3d 250,254. Had counsel made these objections and presented the attached evidence there is reasonable probability the judge would have ruled this evidence was inadmissible, thereby changing the results of this proceeding and the results of the-trial. Strickland, Supra.
11). Counsel failed to object when applicant was not allowed to be present at all stages of the trial. E.g. when the jury sent the note out and the judge sent a reply. we now know the record is voidv of this mandated information, 36.27 Supra. Vol.4 P. 183 L. 14-16. See "U.S. v. Smith, Supra at 471 ("..[a] criminal defendant be present "at every stage of the trial," the Sixth‘ Amendment's confrontation clause, and the Due Process Clause of the Fourteenth Amendment. Thus, unless waived discussion concerning the jury inquiry and the court's response must take place on the record in the presence _oith_e defendant."). Had counsel objected to allowing the judge and prosecutor having an exclusive private, long extended meeting with the deliberating jurors without applicant being present, this objection would have been sustained, if not the judge would have abused his discretion, Id. at 471. ` _
This error of counsel effected applicant's substantial rights to be present at all stages of trial, as well as preventing the prosecutor and judge from having this extended private ex parte meeting with the deliberating jurors. Therefore, this error should not be subjected to a harm analysis. Gochicoa v. Johnson, Supra at 950. Additionally this objection would have preserved a complete record of these events. The courts having found one error of counsel is enough to establish ineffective assistance of counsel. Nero v. Blackburn, supra. Therefore, absent these errors of counsel there is a reasonable probability the results of'the proceedings would have been different. Strickland, supra.- "
12). Failed to object to the numerous times the State presented false evidence. ln
this case applicant was charge as being a felon in possession of a firearm. Applicant stipulated to the fact of being a felon still on parole. Vol.6 Ex. 14. This left the state with the burden to prove only two el ements. 1). That it a firearm; 2) that it was in applicant's possession. The state' was allowed to prove both using false evidence. The first element was proved based upon false and M_ existing evidence! Vol.4 P.164 L.5-7. "Because you know that was a firearm because _tMtL§ stipulated _t_g..." There is no such stipulation. Applicant has supplied the entire record. This matter has further been set out previously in error No. 9.
The second element was.also proven with false evidence. Vol.4 P.179 L.10-14 "...the lone issue in front of 'you is _r_lpt possession. There can be no doubt. Again we are there beyond a shadow of a doubt that this man was exercising care, custody, control or management over the pistol. we know that why? Because i_t Las _ip h_i_s_ vehicle..." The weight the jury placed in this false evidence "it was in his vehicle" is demonstrated by their commitment during voir dire that if its in his truck its in his care, custody and control. Vol.3 P.41-44. Even if someone else claimed ownership of the gun. Vol.3 P.65-70.
what makes counsel's lack of'objection to this obvious false testimony such a deplorable and despicable act is counsel knew for a stone cold fact it was false. Vol.4 P.1ZlKL.3-4. "And we don't even have proof'its a firearm." Vol.4 P.72 L.24-25 P.73 L.1-5. ",Q. Now, the vehicle that Mr. Greer was driving that's actually registered'tga kennith Greer, is that right? A. _Ye§,_`§iL Q. And so, that would be David's _d_adLLt actually David, i_s__tm correct? A. Xe§¢_si¢
The cumulative effects of this false and prejudicial evidence being admitted du_e to counsel's poor performance is driven home and cumulative, by allowing the prosecutor to falsely represent what applicant's only witness testified to thereby,, bolstering thev effects the previously presented false evidence would have on the jury verdict. Vol.4 P. 179- L`.1-2. "Monisha told you that. It's registered to his parents, but 'that's hi__s truck. That's hj_s_ mc_k_.'" This error of counsel was cumulative to the fact he allowed the prosecutor to literally pound this false evidence into the jurorsl minds until a minute before they were released to reach a verdict. Vol.4 P.178 L.24-25; 179 L.2,14-15,2_0-22; 180 L`.25; 182 L.22.
Counsel knew this- evidence was false and he also knew the prosecutor was using it to prove the only two necessary elements to obtain a conviction and influence the jury verdict. Had counsel made an objection it would have been sustained if not the judge would have been abusing his discretion. See earson v. State, 649 S.w.2d '786,789 (Tex.App.-Fort worth 1983)_("Certainly, we now know, reversal must follow
where the prosecutor deliberately presents a false picture of the facts by knowingly using perjured testimony." Citing Means v. State, 429 S.w.2d 490 (Tex.Cr.App. 1986).
There can be no reasonable trial strategy in allowing the prosecutor to use ' false evidence! For sure allowing them to use it to prove the only two remaining elements necessary to obtain a conviction. This error of counsel harmed and prejudiced applicant by allowing his' trial to be fundamentally unfair. Thee is a reasonable probability that " without these errors or counsel the results of the proceedings would have been different. §M<_l_arg, Supra. '
13). Failed to object when the state introduced the illegal incomplete inventory list. Counsel knew the inventory list did not include the gun-or jacket which established by mandatory required procedures for a legal inventory search to be- conducted by the Barzos County Sheriff's Department. which trial counsel works for as a ride a`long. Yet not only did counsel fail to object but actually actively assisted gewin establishing _tl£ inventory _lls_t_ t_ha_t M prepared _t_>y_ hip g worker w proper by asking the court lto consider a non-existing evidence sheet. Counsel told the judge the gun and jacket are properly listed on this evidence sheet in accordance to policy. Vol.4 P.156 L.13-17. The record is totally void of any such evidence sheet. There can be pp t@]_ strategy in helping the state justify introducing an illegally prepared inculpatory document by telling the` court its justified in doing so based upon a false non-existing _document. This is yet one more prime example of the manifestation of counsel's divided loyalty. Asking the court to consider non-existing evidence that is detrimental to applicant's case is far more than unreasonable. In times of war helping the enemy is called treason. without this evidence there would have been no case. without counsel helping the state justify the introduction of an ill-prepared document which in turn was used to justify the confiscation and subsequent arrest for a felon in possession of a firearm and trial. There is a reasonable probability the out come of the trial would have been different. Strickland, Supra. d
14). For assisting and urging excuses for the state to deny applicant's his 6th Amendment right to cross-examine officer Ficke. Vol.4 P'.89 L.24-25 P.90 L.1-9.
The State offered the Vehicle Inventory Report prepared and signed by Deputy Ficke without objection. See Vol.6 Ex.5. what is so shocking is that counsel actually set forth the facts that the Supreme Court used to rule- that applicant has the right to cross-examine this witness. Vol.4 P.89 L.18-21. "Q.I don't anticipate
j_s_ that correct? _l_l4 Yes, sir; lp my knowledge. yes, sir. See Meledez, Supra. at 328
as further set out on page four of this memorandum. Then counsel in his next breath urged the court to introduce this Vehicle Inventory Report without objection in his mistaken belief that it would prevent Officer Ficke from having to testify. Also _ counsel wanted the judge to know trial counsel was the one that was responsible for the inventory sheet being introduced into the record and not the state prosecutor.
The record` further demonstrates the judgewasl shocked and surprised that counsel had not objections and brought his concerns to counsel attention. See Vol.4 P.90 L.5-9. "MR. GRAY: we have jul objectio . Judge. THE COURT: No further objection? MR. GRAY: No further objection. Judge. that was actually at our urgence, [to introduce the inventory sheet not the state's] and that should prevent the deputy jrgm having tp testify." This record demonstrates two dramatic things. 1). Counsel did not know the law governing the facts of this case. 2). His willingness to help the state to deny applicant his constitutional right to cross-examine this witness thereby subjecting the state's case to adversarial testing. See Powell v. Alabama, 53 S.Ct. 55, 59 (1932); Meledez, Supra. at 328; Gochicoa v. Johnson, Supra at 950.
Counsel's statement _is classified as oxymoron as is undeniably pointedly foolish. The exact reason counsel urges to court` to deny applicant his constitutional right to cross-examine officer Ficke is the very reason applicant has ' a' constitutional right to do so. Melediz, Supra at 328-329. Applicant suffered egregious harm by counsel turning in to a better prosecutor than the state's prosecutor at denying applicant his constitutional right to cross-examine this vital witness and evidence. For sure there_ is a reasonable probability that the results of the proceeding would have been different absent these errors of counsel. Strickland,
Supra. ' 15). Failed to object when state introduced critical inculpatory evidence that was' altered e.g. several different videos selectively made into one. Therefore, this one video is impossible to authenticate for legal introduction. Vol.4 P.151 L.6-7 Front camera and backseat camera of Ficke's car. Vol.4 P.144 L.10-12, Vol.4 P.166 L.1920. Front and back seat of Ballew's car. l
Counsel failed- to object because the DVD wasv hopelessly commingled and impossible to authenticated Selectively putting bits and pieces of four different DVD made into one is evidence that not only has been tampered with, but seriously, v and undeniably tampered with and altered. Furthermore, there is no chain of custody. This inculpatory evidence was obviously inadmissible. Cuba v. State, Supra. at 735. Counsel did not simply pass over obviously inadmissible inculpatory
evidence which is not within the realm of trial strategy. See Lyons v. McCotter, Supra. at 534. Counsel went one step further by turning into a defense prosecutor by assisting the state prosecutor by engaging in illegal means to have this inadmissible evidence introduced by way of a ever changing oral stipulation in the middle of trial without placing the exact terms of this stipulation into the record. See lloweth v. State, Supra at 789. Furthermore, as the judge stated any stipulation that is offered once trial starts must be in writing. Vol.4 P.19 L. 20-22`. which is supported by the decision of the Tex. Crim. App.‘s See Ellard v. State, Supra at 841.
The defense prosecutor agreeing to allow this inculpatory DVD to be admitted, and not simply not objecting to it but orchestrating and conspiring with the state prosecutor by devising an illegal stipulation to insure this inculpatory evidence was introduced so the jury could consider it repeatedly. Counsel went so far as to during closing arguments to remind the jurors they have this DVD to refresh their memory. Vol. 4 P. 168 L.15-17. The very actions of the jury verifies that the DVD is persuasive and it' s favorable for the state. They were having trouble reaching a verdict they watched this DVD and quickly returned a_ guilty verdict. Vol. _4 P. 183 L.14-16. P.184 L.3-5. Had it not been for these errors of counsel, this detrimental inculpatory evidence could not have been introduced. Therefore, there is a t reasonable possibility the results of the - proceedings would » have been `
» different. Strickland, Supra. ' 16). Counsel refused and failed to allow the only defense witness to review the , video to refresh her memory, and prepare her for cross- examination, stating that he could not allow her to review the video because this would be witness tampering:
Fi`rst to not preparing this witness for cross-examination by allowing her review both the DVD record and the taped interview is_ ineffective. Johnson v. State, _ Supra.; Mallet v. State, 9 S.w.3d 856,867 (Tex.App.-Fort worth 2000). Next not allowing the witness to review the DVD based upon his misunderstanding of the law, , "It would be witness tampering." This is yet one more instant of ineffectiveness of counsel. Because counsel is required to have a firm grasp` of the laws dealing with the facts of lthis case. Alabama v'. Powell, Supra. Flores v. State, 576 S.w.2d 632,634 (Tex.Cr.App.1978_`). It is well defined law that a__llowing~this witness to' review this tape is not witness tamper. As such counsel is ineffective for such ignorance of the law. Ex Parte Chandler, 182 S. w. 3d `350, 358 (Tex. Cr. App. 2005). '
The record speaks for itself. Counsel was so grossly ineffective that he not ~ only did not even allow the only defense witness to review the DVD or the audio
recording by the prosecutor but did not even inform her they existed. This in the face of the fact that counsel knew she was going to clainl ownership of the gun and if her testimony was believed applicant would be found not guilty. See Vol.4 P. 132 L.22-24. "Q" Are you aware that you were being video tapped at that point and time?. A. No',4 l wasn't. Vol.4 P.126 L.2-5. "...are you aware that I was recording that conversation? A. No, l wasn't aware that you were recording anything;
The harm and prejudice due to this error of counsel allowed the prosecutor to "not" simply impeach her testimony but literally ambush her on cross-examination with her statements in the video and audio recording. which subsequently allowed him to point out these inconsistencies to the jury during closing arguments. Vol.4 P. 181 L.3-25 P.182 L.1-14. Additionally this allowed the prosecutor to use the threat of the unknown recorded conversation to coerce her into testifying favorable for the prosecution. Vol.4 P.126-132. This video was used repeatedly to impeach her direct examination testimony. P.126-143. As a prime example see P.143 L.12-14. "Once she found out she was being videotaped, on redirect, she changed her testimony and said that happened later." Additionally this allowed the prosecutor to viciously and relentlessly attack her credibility by reminding the jury it is their job to judge ' witnesses credibility. Vol 4 P.177 L.11-12. "...You're judging the credibility." The prosecutor then explained why she had a reason to lie, then proceeded to bash her credibility by portraying her to be a liar, not once, not twice nor even just three times but eight times during closing arguments. P.180-182.
Counsel' s lack of preparing the only defense witness to testify resulted in the
ultimate harm--"the jury discredited her testimony and found applicant guilty." Because if the jury would have believed her testimony (the gun was her's) then they would have found applicant not guilty. Had it not been for this error of counsel the results of the proceedings would have been different. Stickland, Supra. v 17). Failed to object when prosecutor ndsstated the law. The Fifth Amendment right includes the right not to incriminate others. Vol.3 P.85 L.7-9. Instructed the jury after the jury charge had been read that the evidence; "does not have to be beyond a reasonable doubt." Vol.4 P.165 L.14-15. Counsel's failure to object to these obvious well known misstaatmemnt of laws are not with the realm of trial strategy also this one error of counsel is enough to find counsel ineffective. See Andrew v. State, 159 S.w.3d 98,102 (Tex.Crim.App.2005);
"[tjhe Supreme Court said that, "In making [itsj determination the [reviewing] court should keep in mind that counsel' s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case." Counsel failed to do so in the case when he failed to object to the prosecutor' s misstatement of law...Defense counsel has a duty to
correct ,misstatements of law that are detrimental to his client. This duty derives from counsel' s function "to make the adversarial testing process work
- in the particular case." There can be no reasonable trial strategy in failing
to correct misstatment of law that is detrimental to the client.")
See also Branch v. State, 335 S.w.3d 893,899 (Tex§Crim.App. 2001). There can be ne reasonable trial strategy in failing to correct this false impression that was harmful to appellant. See Andrews v. State, Supra at 103. Ignorance of well-defined general laws, statutes and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of counsel. See Ex Parte Chandler, Supra at 358. The prosecutor gave the jury incorrect information to determine applicant' s guilt. This is a structural error as it effects the very frame llwork that trials proceed. See Pyles v. Johnson, Supra. at 993. As such its violation defies analysis of harmless error. Id; at 995. Furthermore, it a violation Tex. P. C. §2. 01. had counsel objected to these lnisstatements of law the objection would have been sustained or it would have been an abuse of discretion. Anderws v. State, Supra at 102. There is a reasonable probability the results of the
proceedings would have been different without these errors of counsel. Strickland,
Supra. - _ 18). Failed to object when prosecutor made improper jury arguments.. See Mayberry v. State, 830 S.w.2d 176,178 (Tex.App.-Dallas 1992)(“The permissible areas of jury argument are well established. Proper subject of jury argument include (1) summation of the evidence (2) reasonable deduction from the evidence, (3) answers to argument of apposing counsel. (4) pleas for law enforcement."). The complained of arguments: Vol. 4 P. 164 L. 4- 7. "So what does this all boil down to a whole day spent on possession, knowingly, intentionally possessing a firearm. Because you know that was ' a firearm because it was stipulated to..." This argument injects new facts into the record that are totally false, harmful and prejudicial to applicant. lt invites the jury to based their verdict upon non-existing false evidence. Napue v. Illinois, Sup ra., U. lS. v. Blakey, Supra. at 1560; U. S. v. Murrah, 888 F. 2d 24 (5th Cir. 1998)("A prosecutor may not directly refer to or even allude to evidence that was not adduced at trial."). See also Cooper v. State, ("however, such error is not reversible, unless, viewing the record as a whole, we can conclude the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused into the trial.").
Additionally prosecutor instructed the jury that the vehicle was applicant' s Vol. 4 P. 178 L. 24- 25 179 L.2,14-15,20-22; 180 L. 25; 181 L. 1 182 L. 22. we
know this is false and the prosecutor is using it improperly to influence the
verdict, as such it's manifestly improper, Guidry v. State, 9 S.w.3d 133,154 (Tex.Cr.App.1999). Additionally the prosecutor falsely stated that: "Monishia told you that. It's registered to his parents but that's his truck._That's his truck.' Vol.4 P.179 L.1-2. This argument is false, because no such testimony exist, it injects new facts into the record harmful to applicant. Also it was used for the improper purpose to bolster the credibility of his previous false
Additionally the prosecutor argument misstated a well,defined law after the jury charge was read. "...you are the finders of fact, you can find these facts and add them up. It does not have to be beyond a reasonable doubt." This argument violates mandatory statues, Tex.P.Code 2.01 and the very structural foundation of criminal trials. This argument can only be viewed as a improper method calculated top produce 1 a wrongful conviction. U.S. v. Blakey, Supra. at 1560. All of these arguments are improper and counsel did not object to any them. Had counsel objected the objections would have been sustained if not it would have been an abuse of discretion. without these errors of counsel there is a reasonable probability the results of the proceedings would have been different. Strickland, Supra. '
19). Failed to request findings of facts and conclusion of law after the motion to suppress was denied. Had counsel done so it would have been granted if not the judge would have abused his discretion._ State v. Oages, 210 S.w.3d 643,644 (Tex.Cr.App.2006).-Counsel's failure to do so harmed and prejudiced applicant's right to effective assistance‘of counsel on appeal. Evitts v. Lucey,» Supra. Also this denied`the appeals court of an adequate record on appeal to. properly review this v trial court's ruling. State v. Cullen, 195 S.w.3d 696,698 (Tex.Cr.App.2006). Additionally this lack of an adequate record is harming and prejudicing applicant's post- -conviction proceedings in both State and Federal court. Tamez v. Director TDCJ- -CID, supra. at 642.
20). Failed to object when the jury were allowed to take this video and player into the jury room during deliberation. Due the lack of the mandatory record and possible changes this record may bring about applicant can not adequately present and brief this issue at this time, but will once record is properly supplemented.
21). Counsel failed to object to prosecutors production and use of custodial integration video (DVD) in violation of Texas law. The courts in Nguyen v. State, 292 S.w.3d 671,676 (Tex.Cr.App. 2009),l sets out all the requirements that a electronically recorded custodial integration statement must meet before it's
admissible; 1). It must verify that Miranda warning rights were read and
argument. U.S. v. Murrah, Supra at 26; Guidry v. State, Supra at 154.
waived. 2). The~ recording must be accurate and not have been altered; and 3). Trial counsel must be given a true, complete, and accurate _c_opy_ gf al_l Mdj_ng§ at mg 2_0 d_ay_§ before trial. 'The video verifies the miranda warnings were never read. Therefore, it was impossible to knowingly waive them. The one video was the product of four DVD's selectively commingled into one. It‘ was not provided toy counsel until 10-30-12 (Vol.€ Ex.3) at the earliest and trial was on 11-13-12. As such the admission was prejudicial and clearly_inadmissible, counsel's failure to object to its admission is unexcusable. The failure to do so has no strategic value. Lyons v. McCotter, Supra. at 534. Had counsel objected to its illegal nature the objections would have been sustained if not _it would have been an abuse of discretion. Nguyen v. State, Supra at 676. without this evidence there is a reasonable ' probability the results of the proceedings would have been different. Strickland, Supra._ ' 1
22). Counsel failed to pursue exculpatory evidence. Dispatch logs of Brazos Co. Sheriff's Dept. and Bryan Tx. Police Dept. for February 16, 2012 specifically for the hrs. 1pm-4pm. »Had counsel obtained these logs they would established that the warrant for applicant's arrest was not confirmed'until after applicant was pulled over at gun point and placed under'arrest. This evidence could have been used to prove the stop, arrest and search was illegal._Also it could have been used to impeach the credibility of the state's witnesses. This is therefore, Brady material. United States v. Bagley, 105 S. Ct. 3375 (1985). Had counsel d1§covered this evidence there is a reasonable probability the outcome of the trial woqu have- been different. Strickland, Supra. '
23). For asking the judge and jury to consider evidence that is not in the record that is detrimental to applicant. when it came to the attention of the court before t_he j_\_l_ry_ that the jacket and gun were not on the Vehicle Inventory Report as mandated by policy counsel informed the courtroom that it was listed in the evidence sheet. This evidence i§_ gt _in _t_hg record. This allowed the court and jury to consider evidence that is not in the record and which is detrimental to applicant. This non-existing evidence could have been considered by the trial court and appellate court when denying applicant's motion to suppress. There is a` reasonable probability that without this non-existing evidence being considered the results of the hearing on the motions to suppress and trial would have been different. Strickland, Supra.
24). Failed to question venireperson Robert Cessna if his personal friendship with the presiding judge would have effected his ability to be a fair and impartial
juror, Applicant can not adequately`present this issue due the lack of mandatory record but applicant has a motion pending to have the record supplemented with the mandatory record is supplemented applicant will fully brief this issue.
25). Improper jury arguments.- of coun\sel. Applicant will no_w justify .coining trial counsel the defense prosecutor. Counsel did more to criticize and place Applicant's fifth amendment right 'to remain silent prejudicially in the minds of the jurors in closing arguments than the prosecutor is legally entitled to. See the defense prosecutor's closing arguments. Vol.4 P.170 L.1,11. "...There's no testimony from David...There is no statement from David.'.'."' This is direct statements of applicant's failure to testify. Had the state prosecutor made these statements reversal error would have been required. Anderson v. State,7 813 S.w11.177 (Tex.App.-Dallas 1991) citing Johnson v. State, _ 611 S.w.2d 649,650 (Tex.Cr.App. 1981). Counsel was well aware that the jurors were already struggling to not hold applicant's failure'to testi __ gzag_ainst him. Especially mixed with the fact they were told applicant was a convicted fel-ony. See Vol.3 P.90 L.5-13. Counsel also knew more jurors were excused for cause because they would hold it against applicant if he did not testify, than any other reason. Vol.3 P. 113 L.16-18. The defense prosecutor knew any comment on applicant"sq:';right to not testify was highly prejudicial. This denied applicant a fair trial with an, impartial jury. U.S. v. webster, supra. at 341. Yet the law allows trial counsel to do so. nick-s v. state, su‘pra. at 304. `
The defense prosecutor conceded applicant's guilt which is the proverbial final nail in the coffin. P. 174 L.19-25, 175 L.1-3.
"...They're going to talk about David's coat, you know, him saying that's not his. Think about this. You've got a convicted felon. He's in a police car, just like Monishia, in handcuffs. Officers comes up with a coat, “Hey, is this yours?" Officers wouldn't be bringing a coat unless he found something in the‘ coat, right? So, is it shocking that.@ would _sgy_ that's Mmy_ coat?
This is a clear' admission of guilt. Defense prosecutor clearly admitted it was applicant's coat. He also admitted that applicant was a convicted felon. Also admitted that applicant knew the pol'ice found something in his jacket that a ' convicted felon could not possess e.g. a gun. That applicant was a lair and that
'vthi's is the_ reason he lied. Also that the jury could not be surprised that he ;_;,',_';;_.lied’.;v__Co'unsel connected the gun to the jacket and the jacket to applicant. Also that 1111-"_`appl.-ic_ant knew the gun was in the jacket. Additionally that applicant lied but the
;j_u_r‘y.j' should understand why he lied and not be surprised.' Counsel had already allowed 13‘the state prosecutor to use false evidence to prove the truck was app.licant's, and
the gun was a firearm. As such counsel's admission conceded applicant's guilt.v See Doherty v. State, 781 S.w.2d 439,442 (Tex.App.-Houston [1st Dist.] 1989):
"Fleming himself made remarks prejudicial to appellant. Feleming‘s remarks to
appellant, "you didn' t take all the money? " and, "what did you do, hit him
over the head first?" were heard 15- 20 feet away. Felming essentially admitted his client' s guilt in the presence and hearing of the jury." -
There is no trial strategy in admitting applicant' s guilt. Stickland', Surpa. This error resulted in further harm because it opened the door for the prosecutor _to assassinate and annihilate applicant's character even though hew testified. This was done by repeatedly telling the jurors he l.ied. Vol.4 P.179, 23, 180 L.3,8-9,12; 182 L.22. These were virtually the last words out of_ the defense prosecutor's mouth before he dismissed the jurors. what juror would not believe applicant was guilty if it' came out of his own counsel's mouth. Any chance applicant had a fair trial was totally destroyed. This final one error of counsel alone is enough to find counsel ineffective. Ex Parte Felton, Supra at 735.
GROUND 0F`ERROR N0.14: APPLICANT wAS DENIED HIS 6TH AMENDMENT RIGHT TO
EFFECTIle ASSISTANCE OF COUNSEL 0N APPEAL. »
GRGUND 0F ERRORv NO. 15: APPLICANT wAS DENIED HIS AND 14TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANT 0F COUNSEL ON APPEAL.
Applicant is constitutionally entitled to effective of counsel on appeal pursuant to the 14th Amendment of the' U.S. Constitution. See Lofton v. whitle , 905 F.2d 885,887 (5th Cir.1990). Citing Evitts v. Lucey, 105 S.Ct. 830 (1985).
For a applicant to establish ineffective assistance of counsel on appeal applicant need only show that a different outcome on appeal would have resulted but for the error of counsel. Duhamel v. Collins, 955 F.2d 962,967 (5th Cir.7 1992); §§ Parte Owenby, 749 S.w.2d 880,881 (Tex.Crim.App.1988)(This second prong [of Strickland test] requires that in the instant case the applicant must b_e able to show that the outcome of his appeal would have been different if he was now allowed an out-of-time-appeal on this issue). This involves a significant lower threshold showing of harm, because counsel may have been ineffective on appeal for not raising an issue or that issue raised was deficiently briefed. Duhamel, supra. at '1130-31.
Applicant asserts that his appellant counsel was ineffective because the trial court denied counsel the mandatory complete trial record.-There is four off-the-record discussions. Two applicant has recited to the best of his ability the essential facts. See pages 1-3 of this memorandum. The jury note is missing and the astounding extended private ex parte communications between the judge, prosecutor and deliberating jurors. These missing mandatory records (36.27 supra) denied
appellant counsel the necessary records to file a motion for new trial with supporting affidavit. Had counsel been provided these`records and filed the motion for new trial seeking to develop these issues the motion would have been granted an -a hearing would have been ordered. Lucero v. State, Supra. at 94`. This would have allowed counsel to present a fully developed record supporting counsel's conflict of interest. Cuyler v. Sullivan, Supra.'at 1719. That applicant was not present at all stages of the tr`ial and ex parte communications between the judge and prosecutor with the jury. U.S. v. Smith, supra. at 471-73. Also that counsel did not question Mr. Cessna about his being impartial, due to being special friends with the presiding judge. Cadoree v. State, Supra. at 789. Had this motion for new trial been , filed, developing these facts and bring these issues up on direct appeal there is a reasonable probability that if applicant was now granted an out-of-time appeal the results of the proceedings would be different. Ex Parte 0wenby, 749 S.w.2d 880,881 (Tex.cr.App.lgaa); aiso strickiand, supra. `
Appellant counsel was ineffective because she failed to request a hearing on the motion for new trial by filing a Setting Request form with the District Clerk. See Clerk's Records P.70. Also sh_e failed to file the required affidavit and attaching it to the motion for new trial as pointed out by the District Attorney. See Clerk's Record P. 65. And appellant counsel failed to present issues 'in` her motion for new trial specifically requested by applicant. See attached Ex. J. Had these issues been presented on a motion for new trial then the factual bases for each claim would have been developed. Therefore, there would have been a record to reference to, such as but not limited to, why trial counsel failed to allow applicant to try on the jacket in front of the jury which is a XL and applicant wears a 5X this would have been like putting 1a baby shirt on a giant, this would have conclusively proven the jacket was not applicants. Like 0J Simpson "if it does not fit you must acquit." Had counsel listed these issues in her motion for new trial along with the necessary papers and attaching them with _her motion for new trial. There is a reasonable probability the results of the motion for new trial would have been different. Lucero v. State, Supra at 94. Thereafter, the results of the direct appeal would have been different. Stricklnad, Supra.
Had counsel raised and properly briefed the issues presented herein there is 5a reasonable probability a different out come would have resulted. The Honorable Fifth Circuit held in McGrae v. Blackburn, 793 F.2d 684, 688 (5th Cir. 1986)(Because this is not a case where counsel's deficiencies prevented ANY APPELLATE review, or where counsel entirely failed to challenge the prosecution's case,1 McCarae's claim
requires a showing that counsel's errors were so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment. Hamilton v. McCotter, 772 F.2d 171,182 (5th Cir.1985). See also Strickland, supra at 2064"). In the instant case appellant counsel COMPLETELY FAILED to challenge the Prosecutor's case on Grounds of error 2-12,16,17 also the issues she did raise were deficiently briefed which denied applicant any meaningful review which shows applicant was denied his 6th and 14th Amendment right to effective assistance on appeal. Id. citing Strickland, Supra at 2064.
Applicant has shown and satisfied his burden under Stickland by showing that the issues now raised if appellate counsel had raised them and properly briefed them on direct appeal reversal would have followed and a new trial ordered years ago.
The denial of effective assistance of counsel on appeal prejudiced applicant by denying him proper and/or presentation of these issues now being presented. See U.S. v. Phillips, 210 F.3d 345 (5th Cir.2000). There is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would be different if applicant was now granted an out-of-time-appeal. Ex Parte Owenby,. supra at 881.
GROUND OF ERROR NO. 16: APPLICANT wAS DENIED HIS 6TH' AND 14TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BECAUSE HE FAILED TO_ADEQUATELY -PRESENT AND PRESERVE APPLICANT'S 4TH AMENDMENT CLAIMS. '
This issue is governed by the supreme court's decision in Kimmelman v. Morrison, 106 S.Ct. 2574 (1986). Counsel completely failed to filed a motion to suppress the video of the custodial integration. He did file one regarding suppression of the audio but never properly requested or received a hearing. See Clerk's Record P.11-12. Had counsel done so and alleged it violated the requirements the court set forth in Nguyen v. State, Supra at 767. As further set-out in ground of error 13 subsection 21 on pages' 39¥40 of this memorandum, it would have been granted, if not it would have been an abuse of discretion. Id. at 767. The video was 4 videos made into one, selectively redacting exculpatory portions and including the inculpatory .portions. The final video is undeniable a video that has been tampered with altered and commingled with 3 other videos, hopelessly destroying the ability for it to be authenticated, and its ability to be legally admitted as evidence. §gbg v. State, supra at 735. Additionally had counsel discovered and admitted as evidence that Brazos Co.$heriff‘s Dept. did not have an evidence .control system from time of arrest until trial. See attached Ex. K. The chain of custody could not have been established. See wortham v. State, 903 S.w.2d 897,900 (Tex.App.-Beaumont 1995)("0nly upon a showing that an exhibit was tampered with or altered will a chain of custody
question effect admissibility."). This evidence would have proven this video was hopelessly inadmissible. The nwtion would have been granted if not it would have been an abuse4 of discretion. Id. at 900. for ' sure the issue would have been preserved for appellate review. The results of the proceedings would have been different without this evidence. Kimmelman v. Morrison, supra at 2583.
Counsel failed to file an adequate motion to suppress the illegal arrest and subsequent search and confiscation of the gun and jacket. Additionally counsel failed to request a pre-trial hearing on the motion to suppress. Counsel waited until after the jury was impaneled and even then did not request a separate hearing. Vol,3 P.167 L.18-20. At the point in time when counsel finally urged his motion was after the state rested its case. Vol.4 P.100 L.17-18.1 All the evidence that counsel sought to suppress he had already allowed the state tot present it without a single objection. See Griffin v. State, 850 S.w.2d 2461249 (Tex.App.-Houston [1st Dist.] 1993)("Defense coundfl mg§t object gygry time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.w.2d 507,511 (Tex.Cirm.App.1984); See also 1 Brasfield v. State, 600 S.w.2d 288,296 (Tex.Cr.App.1980)." Because no objections were made when the complained of evidence was admitted, there is "nothing preserved" for appellate review; Hudson, 675 at 511. Once the motion was denied counsel failed to file a motion requesting findings of facts and conclusions of law. which would have allowed the appeals courts to adequately rule on the real reason(s) the trial court denied the motion. §Lgtg
.0ages, supra at 644; State v. Cullen, supra at 698.
Counsel failed to properly present his motion to suppress the gun and jacket. Counsel should have set out the mandatory requirements of the Vehicle Inventory Report policy and how the mandatory requirements were not followed: This inventory policy was entered. Vol.6 Ex.16. This policy specifically requires and mandates: 1
II. POLICY1 This inventory procedure __y_ not be used as a pre text to conduct
ag_exploratory search for incriminating evidence...Vehicle inventories SHALL be conducted in accordance with the procedures outlined in this directive.
P. 2B. VEHICLE INVENTORY REPORT
3. LLL items of value SHALL be recorded on the Vehicle Inventory Report.
4. In most cases, the property should be left inside the impounded vehicle. If, however, the vehicle cannot be reasonably secured or the property is of such value that the officer does not believe it would be safe to leave it in the vehicle, the property SHALL be logged into the Property/Evidence unit for safekeeping. Any property removed from the vehicle SHALL be noted on _ the Vehicle Inventory nggrt, indicating_ where it was stored...6. The `signature of the owner or driver gf_th inventoried vehicle should be obtained on the Vehicle Inventory Report, when practicable. The signature of the driver of the wrecker towing the vehicle, shall be obtained.
Police officers have no discretion in following inventory search procedural policy. See Colorado v. Bertine, 107 S.Ct. 738,743 (1987): "The underlying rational for allowing an inventory exception to the Fourth
determine the scope of the inventory search. See §outh Dokota v, Opperman, 428
U. S. 364, 282, 96 S. Ct. 3092, 3103- 3104, 49 L. Ed. 2d 1000 (1976)(P0wELL
J. Concurring). This absence gil discretion ensures that inventory searches
will ng___t_ be used as a purposeful and general means of discovering evidence of
§;im7e42 Our decisions have always adhered to the requirements that inventories
be conducted according to standardized criteria. See Lafayetta ,462 U. S. at
648, 103 S.Ct. 2610; Opperman, 428 ll.$. at 374-375, 96 S.Ct. _at 3099-3100.“
Therefore, the Supreme Court has set the legal guidelines: If the standard procedure policy is not followed then the inventory search is illegal. because it becomes nothing more than a purposeful and general means of discovering evidence of a crime, §_qlorado v. Bertine, Supra_ at 743.
First the policy mandates that all items of value S|IALL be recorded on the Vehicle Inventory Report. Now we must determine the base line of the value of the property officer'Ficke considers valuable enough that it must be listed on the report. This inventory list is in the record. Vol.6 Ex.l$. lt list 3 pair of sunglasses ($1.00 each) 2 small flashlights ($3.00 dollars each),-3 Blue water bottles that were empty which are free, but even full they are about $5.00 each. Therefore, any item of value of $1.00 or more is considered of value. we know the pistol and black leather jacket is worth way more than $1.00. Neither was listed, as such this is the first instance in which the mandatory requirement of the policy was not followed. ‘
Next the policy mandates (P.2 sec.4). Any property removed from the vehicle $HALL be noted on the Vehicle'Inventory Report. The gun and jacket were not listed 'on the report nor where they were stored. The_refore,!-,this is the second and third instances in which the mandatory policy was not followed. ,These three instances of failure to follow the mandatory policy exhibits and demonstrates bad faith. To further verify bad faith the state capitalized on the lack ;of' following the mandatory requirements of policy by making a major issue out of not knowing where -_ the jacket was found. Vol.4 P.60 L.20-23. By stating it was not found in Monishia'.
'1.1.'1'duffel` bag. Yet as Monishia testified it was in her duffel bag. Had the jury
131-believed the jacket was i_n her duffel bag there is a reasonable probability the
H'outcome_would have been different.` As such the record verifies that this was a strategic decision. A clear act of B_A_D_ FAITH. ' Next remember that the policy includes mandatory language therefore, it_
` 46
mandates compliance....'Vehicle inventories SHALL be conducted in accordance with the procedures outlined in this directive. Applicant has thus established that three mandatory requirements that' were not adhered to. Next requirement, the signature of the owner _g§ driver of the inventoried vehicle should be obtained, when practicable. Officer Ficke was the officer that prepared the report and the arresting officer. 0nce the report was completed with the tow truck driver_'s signature. The officer along with his report got into the front seat with applicant in the backseat. Applicant was taken to the county jail unhandcuffed and booked in. At any point applicant could have reviewed this document and placed his signature on it. So its obvious that it was highly practicable to obtain his signature.1At any point officer Ficke could have handed applicant the report and applicant signed it. This lack of compliance denied applicant the chance to insure the inventory was complete. This lack of compliance undercut two of the three major reasons to conduct the inventory search in the first place. See Lagaite v. State, 995 S.w.2d 860,865 (Tex.App.-Houston [lst Dist.] 1999, pet. ref'd). Inventories serve to protect (1) the owner‘s property while in custody, (2) the police against claims or disputes over lost or stole property. Had this procedure been followed applicant would have noticed his $75.49 dollar camouflage jacket was not even listed or where the black jacket and gun were stored. This bad faith lack of compliance, is the key reason the state was allowed to present false evidence at trial; There was only two jackets in the truck one Ms. Campbell was wearing and the black leather jacket, and applicant was wearing only a tank top and it was the middle of winter so that _was his jacket with the gun in it. Also where it was stored. Vol.4 P<43 L.9.
Also trial counsel argued during the motion _to suppress that the County allows drivers that are going to be arrested to call someone else to come get the vehicle so they will not have to search and tow it off. See Vol.4 P.63 L.'18-25 P.64 L.1. Counsel could have called applicant's father and he would have testified that just 83 _days latter applicant called him after he was arrested and he came and got the truck instead of them searching it and towing it in. See Ex. L attached. 1
Additionally is the fourth instance the mandatory procedural requirements in the policy were not complied with. which counsel failed to alleged or argue in the suppression hearing. Ex 16 P. 2: c. olscovl-:RY or Evlo£uc£.
"1. If, in the course of a vehicle inventory, the officer discovers an item that constitutes contraband or evidence connected to the commission of a criminal offense, the officer SHALL seize the evidence and process _in according g g established procedures o_f this Department." '
This once again mandates that the gun and jacket are mandatorily required to be
listed on this Vehicle Inventory Report. Counsel then could have presented the fact that the Department had no evidence control system. Therefore, there was no way to follow a non-existing procedure for processing evidence. This evidence would have established the state failed to follow four mandatory requirements of their policy and one requirement. Had counsel presented these in the motion to suppress it would have been granted and without this evidence there would have been no trial. As such the out come would have been different without this evidence. Kimmelman-Yv. Morrison, supra at 2583. '
Additionally _at the hearing counsel failed to issue a subpoena for officer Ficke because he is actually the officer that prepared the inventory .' report. 1Applicant had a constitutional right to cross-examine him. Meledez, supra at 328. Also counsel should have insisted that the confidential informant be present because _he was the sole person that identified applicant before he was arrested at gun point. Applicant had a right to test his description, even if it would have had to be in camera. See Bodin v. State, supra at 318. Counsel failed to cite one single case law to support his motion. 1 `
For sure had 'the motion been presented as 'now outlined it would have been properly preserved for appellate review. Thereafter there is a reasonable probability the results of the direct appeal would have been different._
1 1GROUND OF ERROR NO. 17: PROSECUTOR DENIED APPLICANT HIS DlJE PROCESS RIGHT TO
THE DISCOVERY AND DISCLOSURE 0F EXCULPATORY EVIDENCE.
STANDARD OF' REVIEW: "PYLES V. JOHNSON, SUPRA AT 998. THE PROSECUTIONS SUPPRESSION OF EVIDENCE FAVORABLE TO THE ACCUSED VIOLATES THE DUE PROCESS CLAUSE IF THE EVIDENCE IS MATERIAL EITHER TO GUILT OR THE PUNISHMENT. KOPYCINSKI V. SCOTT, 64 F. 3D 223, 225 (5TH CIR.1995) (CITING BRADY V. MARYLAND, 373 U. S. 83, 87, 83 S. Ct. 1174,1197, 10 L. ED. 2D 215 (1963)). THIS INCLUDES EVIDENCE THAT MAY BE USED T0 IMPEACH A WITNESS'S CREDIBILITY. SEE ID. (CITING UNITED STATES V. BAGLEY, 473 U.S. 667, 676, 105 S.CT.3375,3380, 87 L.ED.ZD 481 (1985))."[E]VIDENCE IS MATERIAL ONLY IF THERE IS A REASONABLE PROBABILITY THAT, HAD THE EVIDENCE BEEN DISCLOSED TO THE DEFENSE, THE RESULTS OF THE PROCEEDINGS WOULD HAVE BEEN DIFFERENT." BAGLEY, 473 U. S. AT 682, 105 S. CT. at 3383- 84; SEE ALSO KOPYCINSKI, 64 F. 3D AT 235- 36: IF THE PROSECUTION WITHHOLDS EVIDENCE THAT Sl-\TISFIES THE ABOVE DEFIN_ITION OF MATERIALITY, THEN HARMLESS ERROR ANALYSIS IS IN APPOSITE AND HABEAS RELIEF IS NARRANTED. SEE _K__YLES V. WHITLEY, 514 U. S. 419, 435, 115 S.CT. 1555,1556, 131 L. ED. 20 490 (1995)_ "
The state's witness testified that he was notified by phone by a confidential informant that applicant was in a certain location driving a certain vehicle and had a pending'arrest warrant. That he confirmed the arrest warrant by contacting dispat'ch._ This was the only reason they were legally allowed to forcefully stop and l arrest applicant at gun point,`1was to execute this arrest warrant. Vol.4 P.16
L.5-8. Therefore, the authority is based upon the confirmation by the dispatcher that is listed on the dispatch log. Applicant contends that it was not until after applicant was arrested at gun point that dispatch confirmed the arrest warrant. Therefore, this dispatch log is exculpatory evidence. This dispatch log can prove the stop, arrest and inventory search of the vehicle and confiscation_of the gun were all illegal products of the fourth amendment violation. This dispatch log could have also been used to impeach the credibility of each of the state's witnesses. Bagley, supra at 3380. Whether this dispatch log is exculpatory evidence can easily be determined. Simply compare the video of the stop which has a digital time displayed on it, to the time on the dispatch logs dated 2-16-12 between the hours 1PM-4PM each communication is listed word for word with both the time and date. Applicant's father has tried to obtain this through freedom of information act with "no response." See attached Ex. M. This dispatch log will verify that all the state's witnesses testified falsely, as such this log` could have been used to impeach the credibility of all but one of the state's witnesses.v This satisfies the materiality requirement. Id at 3380. This establishes the materiality of this evidence. P les v.1Johnson, supra at 998. Furthermore, the results of the proceedings would have been different had these logs been d~isclosed. Ba le , supra at 3380. _ ’ '
vNext is the fact that the prosecutor did not disclose the fact that the Brazos Co. Sheriff's Dept. did not have a evidence control system covering the time from arrest until trial. This evidence could have been used to establish the video was inadmissible as evidence “no chain of custody. Cuba v. State, Supra at 7315‘. Also it could have been used to discredit the admissibility of the gun and jacket. Also to further establish the mandatory policy was not followed thereby establishing additional incidents of BAD FAITH. This would establish that the inventory search was nothing more than a search for criminal evidence. Because the inventory search was illegal. See Colorado v. Bertine, supra at 742-743. As such the gun and jacket would have been ruled inadmissible. No gun no trial. This unambiguously establishes the materiality of this evidence. Pyles v. Johnson, supra at 998.
Additionally the state withheld the audio recording that the investigating prosecutor made of "hls" interview with Ms. Campbell. This recording could have been used to establish that the prosecutor illegally used it to impeach her testimony at trial during cross-examination. This will establish the prosecutor committed the criminal act of witness tampering. Tex.P.C.§36.051. Applicant was entitled to have the use of this evidence 20 days before trial. Tex.C.C.Proc. Rules 38.22(3)1(a)(5),
and 39.14. This undiscovered and undisclosed evidence has been used to discredit the only defense. The recording could have been used to rehabilitate the credibility of applicant's only witness. Had this witnesses' testimony been believed applicant would have been found not guilty. For these reasons this writ should be granted and a new trial ordered. 1 1 PRA¥ER v
Applicant prays that this Honorable Court will hold all proceedings deal with this 11.07 in abeyance until applicant's request to transcribe the missing regaining portions of the mandatory Court Reporter's records are transcribed and supply to applicant at a reasonable cost. Then allow applicant to supplement his 11.07. Applicant also prays that an evidentary hearing will be ordered at which time applicant will be allowed to fully develop the record regarding the factual basses 4 of each of his claims. That applicant's writ in all things be granted thereby ' ordering a new trial. lt is so prayed.
I, Dave Greer TDCJ-ID# 1829754, presently incarcerated in the Texas Department of Criminal Justice Institutional Division at the wayne Scott Unit, in Brazoria County, Texas declare under the penalty of perjury that the facts in this memorandum of law are true and correct to the best of my belief.
. My date of birth is )l'¢la»*r .. ExF_cuTEr) on this 3& day of ,§g mg , `2015.'
Under both Federal Law (28 U.S.C. §1746) and state law (V,A.C.Civ. Prac. & Rem. code §132.002-132.003) ~
Respectfully submitted, 'Dave Greer #1829754 wayne Scott Unit '
6999 Retrieve Rd.
Angleton, Texas 77515 CERTIFICATE 0F1SERVICE
I, hereby certify that a true and correct copy of this memorandum has been sent to the criminal District Attorney addressed to: Mr. Jarvis Parsons, 300 E. 26
Street, Suite 310, Bryan, Texas 77803, by placing a true and correct copy in the U. S. Mail postage paid on this 357/ul day of §¥\H`{Z , 2015.
probate
ve Greer
APPLICANT'S EXHIBIT LIST
EX. A. AFFIDAVIT OF MS. GROSS VERIFYING THE EX PARTE COMMUTATIONS BETWEEN THE JUDGE, PROSECUTOR AND DELIBERATING JURY ON 11-14-12.
_ EX. B-1. LETTERS T0 APPLICANT' $ TRIAL ATTORNEY SEEKING TO REVIEW THE 'VIDEO BEFORE TRAIL 50 HE CAN; DECIDE TO 1TAKE THE STATE'S PLEA OFFERS. FIRST 1ONE ON
5-23-12.'
Ex. 3-2 """""". ou 8-4-12
Ex. B-3 """""". ou 8-26-12 4
Ex. 5-4. """""". ou 9-16-12 PAGE 1. Ex. B-4-A. """""". PAGE 2.
Ex. B-s. """""""". on 9~30-12
EX. C¥1. COPY OF LETTER FROM OPEN CUSTODIAN AT BRAZOS CO. SHERIFF'S DEPARTMENT. EX. C-2. """ COPY OF JAIL VISITATION LOG, PAGE 7.
EX. 0-3. """ COPY OF VISITATION LOG. PAGE 5.
EX. D-1. WARNING BY MAGISTRATE ON 5-19-12.
EX. D- 2. wARNING BY MAGISTRATE ON 5-15-12.
EXs E. A COPY OF NOTE TO TRIAL ATTORNEY DURING TRIAL IN EFFORTS TO HAVE HIM MAKE
AN OBJECTION.
EX F. FREEDOM OF INFORMATION.REQUEST FOR COPY OF THE GRIEVANCE THAT WAS FILED
AGAINST JAILER LAKETH MCK1NNEY.
EX. G. BRAZOS COUNTY-SHERIFF'S OFFICE CUSTODIAN 0F RECORDS RESPONSE.
EX.| .DISTRICT CLERK' S RESPONSE W/LAKETH MCKINNEY' S ACTIVE CAUSE NO.'S.
EX. I- 1. BRYAN EAGLE NEW PAPER CLIPPING.
EX. J. LETTER TO APPELLATE ATTORNEY ASKING HER1BRING 1UP SPECIFIC ISSUES ON
MOTION FOR NEw TRIAL. _
EX. K. LETTER FROM ATTORNEY RICHARD WETZEL'TO THOMAS BLANCHARD, INFORMING HIM
wHAT GROUNDS OF ERROR TO FILE ON 11. 07. ON THE BACK IS l\ LETTER TO APPLICANT INFORMING HIM ABOUT THE OPEN INVESTIGATION ON BRAZOS COUNTY SHERIFF DEPARTMENT' S LACK 0F EVIDENCE CONTROL SYSTEM.
EX. L1AFFIDAVIT FORM KENNETH GREER.
'EX. M-l. FREEDOM INFORMATION REOUEST FOR DISPATCH LOGS.
EX. M-2. CERTIFIED MAIL RECEIPTS'FOR FREEDOM OF INFORMATION REQUESTS.
EX. N. FREEDOM OF INFORMATION REQUEST FOR AUDIO RECORDING OF MONISHIA ON
11-13-12.
.............
untitled
6/25/2015 __ Kimberly Gross 5177 Julie Circle Bryan, Texas 77807
AFFIDAVIT
I'm over 18 years old, and I base this statement on my personal knowledge:
!. The D.A. set up the video projection with his personal lap tQD and he was the 1 only person with control of it.
2. During jury deliberation everyone was removed from the courtroom so the1jury could watch the DVD and the D.A. stayed to operate his computer.
_ 3. Mr. Greer was in:a holding cell in the back of the courtroom.
4. The Attorney (Mr. Gray) was not present in the courtroom.
Sincerely;
Kimberly Gross
§~¥__§;€<, Joe Roy Bewley'
- is , , §,,,,§1+"$-' Commission Expires .JL < 3‘° ‘5._ <‘ 04-17-2016
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EX. B-5
(
BRAZOS COUNTY OFFICE oF THE SHERIFF CHRISTOPHER C. KIRK
W. JAMEs STEWART, CHIEF DEPu'rY 1700 WEST STATE HIGHWAY 2 1 WAYNE DicKY, JAIL ADMlle'rRA'roR BRYAN, TExAs 77803- 1300
Kenneth Greer 5177 Julie Circle Bryan, Texas 77 807
Mr. Greer,
I received your Open Records Request for the attorney visits~onl David D. Greer between-the dates of 10/29/2012 and 12/07/2012. We did not list the attorneys separate in the computer at that time. I am enclosing a list of visits with all of the other visits and personal information redacted that was prepared by our County Attorney.
Hope you find this helpful, Sgt. Pechacek
Custodian of Records Brazos County Sheriff’s Ot’f`loe
0FF10E(979) 3614901 ADMlNIs'rRATIoN (979) 361-4992 -' FAx(979)361-4999~- l Ex¢ c-l
QFI¢ER ,
WARNING BY MAGISTRATE
§ § wARNING #:42713§ é. '
' THIS IS TO C§RTIFY THAT I, RO§E JONES ' IN THE CAPACITY OF MAGISTRATE DlD,_(GB§l& d arn/pm AT BCDC ADMINISTER THE WARNINGS REQUIRED BY ARTICLE 15. 17 OF THE §XAS CODE
- OF CRIMINAL PROCEDURE 'l`_Q:
STATE oF TEX'AS §
COUNTY OF BRAZOS
NAME: D`AVID.DUANE.GREER 4 " t PID’No;: 26619800 Auulutbb: all/winn L,n<, m
WHO APPEARED BEFORE ME IN BRAZOS COUNTY, TEXAS. SPECIFICALLY, I I`NFORMED THIS PERSON AS FOLLOWS:
' THE ‘ACCUSATION AND '
` ` ' ' BURLESON co/WRNT/THEFT _GF PRoP ' vi ' W . h 42713§ ‘ ' _ 4 $1500<$20000/rTY _
2. 7 m THE RIGHT To AN EXAMINING TRIAL,
3_ You HAVE THE RIGHT _To REMAIN sILENT AND MAKE No sTArEMENT Ar ALL ANY sTA_TEMENT YOU MAKE MAY BE USED As EviDENcE AGArNsT You AT YOUR TRlAL
.4. ir You cHoosE To MAKE A sTATEMENT, You MAY TERMINATE THE rNTERVIEw AT ANY TIME;
5. YQU HAVE THE RIGHT To HAVE A LAWYER PRESENT To ADv`IsE You PRIOR ro AND DURrNG ANY QuEsTloNING oR .INTERVIEW wer PEACE 0FF1cERs on ATTORNEY/s REPRESENTING THE sTATE,
6. _ IF Y9u ARE UNABLE To EMPLO_Y A LAWYER, You HAVE THE RIGHT To HAVE A LAWYER _APPOINTED To coUNsEL wITH h You PRIOR To AND DURING ANY_ sUcH Qx)ias_rlor\rrN<;v oR rNTEerEw-, ""
7. ' 11= You WIs_H To REQUEST A cOURT-APPOINTED ATTORNEY "
. YOU MUS'I` COMPLETE A WRITTEN APPLICATION UNDER OATH FOR A COURT- APPOINTED ATTORNEY; `b. THE APPLICATION MUST CONTAIN SUFFICIENT _FINANClAL INFORMATION TO ENABLE A J'UDGE TO DETERMINE lF YOU
ARE INDlGENT; _ - c. REASONABLE ASSISTANC§ WII.,L BE PROVIDED TO COMPLETE THE APPLICATION, lF NEEDED; 8 A REQUEST l-`OR A COURT-APPOINTED ATTORNEY WILL B§ DETERMINED WITHIN THREE (3) WORKI`NG DAYS AFTER THE ' ` REQUEST lS RECEIVED IF YOU REMAIN IN JAIL AND DO NOT BOND OUT OF JAIL; l 9v v IF YOU ARE FOUND TO BE INDlGENT AND AN ATTORNEY IS APPOIN'I`ED, THE ATTORNEY WILL AT"IEMPT TO CONTACT YOU
BY THE END OF THE NEXT WORKlNG DAY AF-TER BEl"NGv APPOINTED.
THE ACCUsED _DOES _DO"ES NOT WANT TO REQUEST A coURr-APPOINTED ATTORNEY.,
10. THE COURT Fl'ND_S THAT PROBABLE CAUS§___ ' DOES __ DOES NOT EXIST lN THIS MAT'I`ER.' v l l. lF YOU ARE NO'I` A U S CITIZEN, DO YOU WANT YOUR CONSULATE TO BE vNO'l`IFIED? ____NO, l YES.
` cOUNTRY? '
WITNESSES_<§__M/ 575 . n v _ _.' » DEFENDANT; X v `. ° " l "/Z‘%z¢&(.ygx@‘ @/
Distribution: _Coun; ___Defe_ndant, ' _Magistrate, ___Jajl l 7 ` .IUSTICE OF THE PEACE, PRECINCTA
Form #-5015 Waming by Magistrate . ' 4 -. - ~ Ex~. . D_l
» STATE OF TEXAS §§ EG l §§ § WARNING BY MACISTRATE
COUNTY OF BRAZQS v 7 ' " WARNING #: 426596`
m AT BCDC ADMINISTER THE WARNINGS REQUI7R§D BY ARTICL§ 15. 17 OF_ THE TEXAS CODE
THIS IS TO C W~Y THAT l, ROSE JONES IN THE CAPACITY OF MAGISTRAT§ DID, ON 05/15/12, . 7 77 OF CRIMINA 'O_CEDURE TO:
NAME: DAVID DUANE GRE_ER ' » - PID NO.: 266'19800
ADDRESS: 5177 JULIE CIR, BRYAN, TX 777807 ' d DOB(AGE):12/22/66 PHONE: 979- 595- 3511 D L/I D'NO: TX~ 08609286
WHO APPEARED BEFORE ME lN BRAZOS COUNTY, TEXAS. SPECIFICALLY! I INFORMED THIS PERSON AS FOLLOWS:
l. TH§ ACCUSATION AND ANY AFFIDAVIT CHARG§S YOU WITH THE OFF§NS§(S) OF: ` \' 1
UNL PO§S FIREARM BY F§LON
"?H-02434-F
' sso"ooo 00 " sc y 4t6596
oNSITE JP22/0P1-;R UNREG MoToR vEH1cLE seoo.oo ~ ' JPs 426599
03329636 - PAROLE v10LAT10N/BL/wRNT/rTY so.oo NB 426623 2. lF YOU ARE CHARG-§D WITH ANY F§LONY OFF§NS§, YOU HAV§ THE RIGHT 'I`O AN §XAMINING TRIAL;
YOU HAVE THE RIGHT TO REMAIN SILENT AND MAK§ NO STATEM§NT AT A_LL. ANY STAT§M§NT YOU MAKE MAY B§ USED
AS EVIDENCE AGAINST Y_OU AT YOUR TR.[AL; . 4. ' lF YOU CHOOS§ TO MAK§ A STATEM`ENT, YOU MAY T§R_MINATE THE INT§RVI§W A'I` ANY TIM§;
5. YOU HAV§ THE RIGHT 'I_`O HAV§ A LAWY§R PRESENT TO ADVlSE YOU PRIOR 'l`O AND DURING ANY QU§STIONING OR INT§RVI§W WI'I`H P§AC§ OFFlC§RS OR ATTORN§Y§ R§PR§S§NTING THE STATE;
6. IF YOU AR§ UNABLE TO §MPLOY A LAWY§R, YOU HAV§ TH§ RlGHT TO HAV§ A LAWY§R APPOINT§D TO COUNSEL WITH YOU PRIOR TO AND DURING ANY SUCH QU§STIONING OR lNT§RVI§W;
7. ' IF YOU WISH TO R§QUEST A COURT- APPOINTED A'I'I`ORN§Y: l
a. YOU MUST COMPLETE A WRI'I`T§N APPLICATlON UND§R OATH FOR A COURT- APP701'NTED ATTORN§Y; b. THE APPLICATION MUST CONTAI'N §UFFlCI§NT FINANCl/-\L INF ORMA'I`!ON 'I`O §NABLE A JUDG§ TO DETERMINE IF YOU
7 ARE rNDlGENT ~ .. . . c. REASONABLE Ass1sTANc`E wILL B`E PROVIDED To coMFLETE THE APPLICATION, IF NEEDED, 8 A REQUEST FOR A couRT-APPOINTED ATTORNEY WILL BE DETERMrNED wITHrN THREE (3) woR1<1NG DAYS AFTER THE ' REQUEST_ 1_s RECEIVED IF YOU REMAIN IN JAIL AND D`o NOT BOND our 01= JA1L, 9 IF YOU ARE FOUND 10 1315 1ND1GENT AND AN ArroRNEY 1s APPoiNTED THE ATTORNEY WILL ATTEMPT To coNTAcT YOU
BY 'l`l-l§ END OF THE N§XT 77WORKING DAY AFTER BEI`NG Al>POINT§D_
THE ACCUS§D _7DOES _DO§S NOT WANT TO REQU§ST A COURT-APPOINT§D ATTORN§Y. l
10 THE couRT FrNDs THAT PROBABLI-; cAUsE _DOES_ DoEs NOT Ex1sT rN THls MATTER. 1 1. IF YOU ARE NOT A u _s clTIzEN, 130 YOU wANT YooR coNsULA'Tl-: To BE N0r11=1131j? '___No, __ YES. '
COUNTRY? . ,
wITNEss / 7 ' , l
Distribntion: __ Court, _Defendant, __Magistrate, _Jail _ 7 7 JUSTICE OF TH§ P§ACE, PR.§CINC'I` 4 m - 7
-Form # 5015 Waming by Magis`txate 7 j _ Ex . 0_2 77..
` g . _ " . , .. . . _ ,
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1 /f[/U_#/ /@U/é_§_/"fc//~\ //,/»1_,'7
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Me'.`:?.*.}£./.§.... To: Records Asoess O_ffiser v l Minimn Sesur.'ity Jail (MSJ)
577muemwm- ~ . 1» 7. Bryan, Texas 77807 '7 ' 77 7 7 7 7 7 77 ,_ 1 Re: Freedom `075 Onfor'rmtion law Reqnest
Records Aocess Officer
Under the provision 05 the Texas E`reedom of 7ln50rnuati7.0n Law, Gsvemmat cede Ann. § 552 000, 1 request the following= ' 4 ~ ’f 1 Step 1 grievance forms 511-ed by Stev_e Austin against I..aheth M<:.Kmney
51201171 20172 where David D. Greer was a witness. 1 2. Step 2 grievance forms filed by Steve Austin against Laketh MvKirmey form 201231111ere David D. Greer was a witness. ~ ~
As you know the Freedom 05 information Law requires thalj'.an agency respond within five business dive of seseip`t of a request, therefow¢ l wonld appreciate a res'pond`e as soon as possible and look 50rwa1:d to hearing from von soon 15 501-t any reason any portion o_f my reqnest is denied, please inform me in writing 05 the reesskf0r denial and provide me the name and address 05 the person to whom an appeal srgid be directed.
Sincefely,
oMM:i-oi¢¢ooceo¢¢o Kenneth Greer
51'??’;'¢10111=.\C»):;»l ‘ * " Bryan, Texas 77807
EX. F
BRAZOS COUNTY OFFICE 0F THE SHERIFF CHRISTOPHER C. KIRK
_W. JAMES S'rEwAR'r, Cx-nEF DEPUrY 1700 WEs'r STATE HIGHWAY 2 1 WAYNE DICKY, JAIL ADMINIs'rRA'roR BR\'AN, TEXAS 77803- l 300
Kenneth Wayne Greer 5177 Julie Circle Bryan, Texas 77807
__ .93/9?{?015 _. Dear Mr. Greer, l have received your request for records concerning grievances tiled by Steve Austin against Laketh McKinney. I have been advised by Assistant Disu‘ict.Attorney John Briek that I cannot release these records due to the criminal case filed against Laketh McKinney' still pending Sincerely,
Sgt C. Pechacek _ Custodian of Records Brazos County Sheriff's Oflice
oFFICE (979)3614900 * A_DMINISTRATIQN (979)-361.4992 § FAx(s'/Q) 361-4999
EX. G
' Brazos County
Kenneth Greer -
Bryan,Texa'-`s"""77'8l)"7 ‘
Regarding: -`Ca"u'se'-'Number 01-345,8;&:.-1-3-.+037,04.4_.¢[{_.|?_-3_61... ,`: r,_;___:.:___._ _.
Nlr. Greer,
Your request for copies of said "Final.Convictiori:;':""fo`r Cé"o'se:#():’l'-$ll_$$ _e'hclosed, howell ,"_Frecords show that regarding Cau~se# 13-03704~CRF-361 is still an Active case 56we will not have F_in_al Conviction. P|ease know that you may follow the case documents-on'o\lr'website: ' ' v lh'c’m://i`usticeweb.co.brazos.tx.us and retrieve co"'pies if needed.
` \Ne aoologiie`for an\/'ih`cohi}'éri_l”e“h"ce"'ttiis m have ca '
Thank yob,
District clerk office ll l ' '
EX. ll
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§§L% Joe Roy Bew|ey _ ~? _ 13127?<>.1_1/¢, 5 ,_ , _ ,_ 1111 111111111'1"____ _ my CQMM¢$_$/an/ gap/2445 -{-f>[jz.¢/z, _1-'11_1 1 Date:.»g.:.}.:`.f.;r.. To: Record Access foicer - Brazos County .Sieriff's Department 1700 Hwy. 21 West Bryan, Texas 778_07 From: Kenneth Greer 5177 Julie Cr. - Bryan, Texas 77807 (979)823-’3200 1 Re: Freedom 'of Information law Request Records Access 0fficer: Under the provision of the Texas Freedom of Infometion law, Government ®de` §i'in.-- § 552 001, l request the1.51£ollowing information' ` ` ' 1. Unredacted video from the patrol vehicle that recorded the incident from 2/16/12. ' 2. Trnascript of the video from the patrol vehicle that recorded the incident from 2/16/12. ' 3. Recording from the Brazos Ccmxty Sheriff's dispatcher from the incident of _2/16/12. 4. 'l`ranscript of the Brazos County Sheriff°s dispatcher from the incident of 2/16/12. ' As you know, the I"reedom of Information law requires that an agency respond to a request within five business days of receipt of a_ request, therefore, l ' " "_ appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reason for denial and provide the name abd address to whom ` an appeal should be directed, in writing. " ' 'S~inc_ere,-ly ,_ l I% ....C.Ql.°...‘......\.. Kenneth Greer . 5177 .Julie Cr. ,- Bryan, Texas'7780`/.i . Cerfi‘i"r_€d F€e Retum Fleceipt Fes (Endqr_sement Required) Resuictsd Delive!y Fee (Enao_rsamem He_quired) mar Post_age & Fe€S >/,\ §3. '?":3 " oza`\:»"m¢ Ssnl '{0 ` -Is'l:ee: & Apr, No., ar PO Box No. `?uiu aavu unum uiuv idea (Bxdnrsemen! Required) Recmcwd Delive:y Fae' To\al Pcsta_ge & Fees ` oz)bi/;~*€')`i§ Ssm'fo §masaAprEka or PO B_ox No. 7umu aa?n omni umu? 731? _gx. n-z '?[lll§ EB?[] DIJUL L}LL|'¢' ?355~ Retum Recelpt Fee (E_n_c_iorsement Required) asserted emery see (ermmem_ ngqueed) man Pose.ge a -Feas $ erroz/jraid,_,,. Sent Ta Szreet'&Api Ne,, or PQ Box Ho. cmp sara 2?5=+4 oz/ozk: 15 ?nmu aa?n unum umuv ?Bua` l .-'l m m ,5 r\- »__ _£‘_ r\- BK§§§? ‘Z’?§@:Z :_ , .-'a' - 3 , :_ Pomge $G.Q€* '_=' Cem¢_iedFea 3a 5 semeacaimi=ee g (warsa.msrrr reserved emory Restricted£>efxveryFee . g censorsem¢_uamed> $9_00 h- § raw warsaw-aaa $ am §:;s/ci:iz`oi§ :_ isemTo !\ ¢-'I to g sn-ee:aAp:Nq,, ar FO Box No. f cng see ZlP-H Date:.:;..`:?.`.<.§: `To. Ryan Calvart, Asst. District Attorney 300 East 26th Street_, Ste 310 Bryan, Texas 77803 v me Kecmeth Greer 5177 leslie Circler Bryan, Texas 77897 Re: Freedom of In§ormation Law Request Rec‘&~ds Access foicerz Under the provision of the Texas Freedcm of Information Baw, Govermnent ' 'Code "."'Ann' "`""f"'"§§ 552;001~5 l request the following informtionx ' ' 1 Mdionrecording of conversation with whistle Campbell outside of the courtroom 11/13/12. 2. ‘l'ranscript of recording of conversation with Monishia ¥ampbell outside of the,courtromz 11/13/12. As ace mm the Freeden of Int'oraration Law requires that an agency respond to a request within five business days of receipt of a request, tl‘\ere£ore,' l would epmiate a r£eponse as soon as besible and look forward to hearing from you shortly. If Eor any team any portion of my request is denied, please informmsof thereason fordenial inwriting,andprovidema thenaweand address to winn en appeal should be directed. Sincerely, ..K th Greer 5177 Juiie Cr. 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Greer, David AKA David Duane Greer (Greer, David AKA David Duane Greer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.