May, George Willard

• Court: Court of Appeals of Texas
• Decided: February 9, 2015
• Docket: WR-75,714-05
• Status: Published

Opinion

TO: CLERK OF THE COURT OF CRIMINAL APPEALS .OF TEXAS P.O. BOX 12308, CAPITOL STATION RECEIVED IN AUSTIN, TEXAS 78711 COURT OF CRIMINAL APPEALS DATE: JANUARY·~;2015 fEB 09 2015 FROM: GEORGE WILLARD MAY TDCJ-ID#1079659 DALHART UNIT 11950 F.M. 998 DALHART, TX~79022

RE: REQUEST FOR DISCRETIONARY REVIEW ON 044504-B,NOT BEING A WRIT CHALLENGING A CONVICTION

DEAR CLERK: I am s en d in g t h i s cop y o-f my 11 . 0 7 11 0 UT- 0 F - T I ME AP P E AL 11 to v e r i f y to this Court that this writ never c h a 11 eng e d my conviction ;: it.:~. (044504-B) does not stop my rights to file another 11.07 wtit~df habeas corpus to chsllenge my conv~ction. The trial court was in error by recomending that this court deny 044504-C as subsequent. I.w~~ ~rititled to be heard through my 11.07 writ of .1habeasccorpus 044504-C, the first writ challenging my conviction. It is my understanding that this cour.t can on its own discretion, decide to review an improperly denied writ.(044504-C) so I am sending 044504-B Application and Page one of 044504-B of the Memorandum in the hopes that.this proof that 044504-B is not challenging my .conviction will be looked at and I Pray that~this court will in it's own discretion decide toGreview 044504-C as my first writ challenging my convicton. I am only sending the Application as proof. If the complete document is needed, I will gladly send it upon request. I would also glady s~nd to~this court my 11.07 044504~C upon request. Again it is my first writ challenging my conviction an.d should not have been denied as subsequent. As clerk ,would you please date stamp this packet and present i~ to the court fdr their discretionary review. Thank you so much for your time and consideration in this matter.

Sincerely, ~

~-L)~ GEORGE WILLARD MAY TDCJ-ID#1079659 ,,

I~ THE COt:RT OF CRI\11\AL APPEALS OF TEX.-\S

APPLICATIO~ FOR A WRIT OF HABE.-\S CORPliS SEEKING RELIEF FRO~l FI:\At FELONY CO~\'ICTIO:\ UNDER CODE OF CRI\'11:\AL PROCEDURE. ARTICLE 11.07

\:\\1 E: _ __.:!.G. !:.E.!:'O...!.l.R.!i!.G.~:.E-.!!!W.=.I..~.LJ.L.nA.uR..IlD_.oM.nA...LV_ _ _ _ _ _ _ _ _ _ _ _ _ _ __

DATE OF BIRTH: _o_Ei_/_o_a_/_1_9_5_2_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

PL\CE OF CO\FINE\1ENT: DALHART UNIT, 11950 F. M. 998 DALHART IX. I I

79022 TOCJ-CID :\l"\lBER: 01079659 SID \l"\IBER: - - - - - - - -

(I) This application concerns (chcd; i.lllthi.lt apply I:

0 a conviction [j parole

0 a sentence 0 mandatory supervision

0 time credit out-of'-timc appcal or petition for discrctiona~· re\"iew

(2) \\'hat district court entered thc judgment of the com·iction ~·ou want rclief from? l Include the coun numhcr and count~·.!

59TH JUDICIAL DISTRICT COURT, GRAYSON COUNTY, SHERMAN TX.

(3) What was the case number in the trial ~:ourt'?

What was the name of thc trial jud~c'!

HONORABLE JUDGE RAYBURN M. NULL JR.

: .. ~ ·:

:~ ·--·-

Eflix:tiv..::.li.lnuarv 1.2014 ·.-- ....

R~.:,·. 01'14!14 •, • '' (5) Were you represented by counsel'! If )'es. pro\· ide the attorney's name:

YES, MR. THOMAS SHEA AND MR. KERMIT HILL

(6) What was the date that the judgment was entered'!

APRIL 27TH, 2001

(7) For what offense were you convicted and what was the sentence'?

AGGRAVATED SEXUAL ASSAULT OF A CHILD-20 YEARS CONFINEMENT

(8) If you were sentenced on more than one count of an indictment in the same court at the same time, what counts were you convicted of and what was the sentence in each count?

N/A

(9) What was the plea you entered? (Check one.)

0 guilty-open plea 0 guilty-plea bargain KJ not guilty 0 nolo ctJntenderelno contest

If you entered different pleas to counts in a multi-count indictment, please explain: N/A

(I 0) What kind of trial did you ha\'e'!

0 no jury ag jury for guilt and punishment 0 jury for guilt, judge for punishment

Rev. 01/14/14 I ..

( 11) Did you testify at trial'! If yes. at what phase of the trial did you testify'!

YES, AT PUNISHMENT PHASE OF TRIAL

(12) Did you appeal from the judgment of com·iction'?

0 no

If you did appeal, answer the following questions:

(A) Whatcourtofappealsdid~·ouappcalto'? FIFTH SUPREME JUDICIA! DIST.

(8) What was the case number'? 05-01-01 251-CR

(C) Were you represented by counsel on appeal? If yes, provide the attorney's name: YES, MR. JASON BUTSCHER

(D) What was the decision and the date of the decision'? C0 NF I RME D • MARCH , 2 0 0 2

( 13) Did you file a petition for discretionar)· re,·iew in the c:ourt of Criminal Appeals?

0 yes 0 no

If )'OU did file a petition for discretionary review, answer the following questions:

(A) What was the case number? N/A

(B) What was the decision and the date of the decision'! -~N'-/.!..!A_ _ _ _ __

(14) Have you previously filed an application for a writ of habeas corpus under Article I 1.07 of the Texas Code of Criminal Procedure challenging thi.'i conviction'?

0 yes KJ no

If you answered yes. answer the following questions:

(A) What was the Court of Criminal Appeals' writ number? N/A

R~.:v. 0 I114/ 14 (B) What was tht.• decision and the date uf the decision'! ~N..!../...:...A.:___ _ _ _ __

((') Please identif)· the reason that tht.• t.·urrcnt claims wen~ not presented and could not han been pn·scntcd on your prnious application.

( 15) l>o you currt>ntly han" an~ petition or appeal pending in an~· other state or federal court'!

If ~·ou answered yes, please prO\ ide the name of the court and the case number:

( 16) If' you are prest'nting a claim for time cn·dit. ha,·c ~·ou rxhausted ~·our administrative remedies b~· presentin~ ,yuur claim to thl" time credit resolution system of the Tt>xas Department of Criminai.Justice? (This n•quirt'ment applies to any final felon~· con,·ic:tion, includine state .iail felonies)

N/A 0 no

If you answered ~·es. answer the folio\\ in~ questions:

(A) What date did )OU present the claim'! _.:..N:.:../...:.A_;___ _ _ _ _ _ _ _ _ __

(8) Did you receh1c a decision and. if ~·t.·s. n hat was the date of the decision'!

If ~·ou answered no. plcasl' explain why ~·ou han not submittt.•d your claim:

Re\·. 0 I/ J.fi 1-+ N/A

( 17) Beginning on page 6, state cmrdse(r every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. lfyour gromubi and briefsummoiJ' of the fact.'t ha••e ntJt been pre.'iented on the form applicatimr, the Court will not com;ider your ground!!·. If you hne more than four grounds, use pages 14 and 15 of the form, which you ma)'· cop~· as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if ~·ou want to present legal authorities, but the Court will not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the ''alidi~· of your con,·ictinn, please include a summary of the facts pertaining to your offense and trial in your memorandum.

Rev. 0 I /14/14 ' .

UK;T GROU~I> 0:\E: £ APPLICANT STATES HE IS ELIGIBLE FOR AN "OUT-OF-TIME APPEAL BECAUSE

OF CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

ACTS SUPPORTI~G GROUND 0:'\E: APPLICANT IS NOT CHALLENGING HE

IS SHOWING THIS COURT CAUSE FOR BEING ELIGIBLE FOR AN "OUT-OF-

TlME APPEAL", BECAUSE APPELLATE COUNSEL WAS "CONSTITUTIONALLY

INEFFECTIVE'' FOR NOT RAISING TO THE APPEALS COURT "ACQUITTAL

ISSUES" AND "MORE MERITORIOUS ISSUES" THAT ARE OBVIOUSLY

APPARENT IN THE REVIEW OF THE COURT RECORDS. APPLICANT IS

CURRENTLY ILLEGALLY CONFINED AND RESTRAINED IN HIS LIBERTY

AT THE DALHA-~_!__ UNI_!_ __ .~} 1 1 9 5 0 , F . M. 9 9 8 , DALHART TX. 7 9 0 2 2 .

APPLICANT WILL SHOW THIS COURT EIGHT ISSUES THAT WERE OBVIOUS

AND HAVE NOT BEEN TAKEN INTO CONSIDERATION BY THE COURT OF

APPEALS. THESE EIGHT UNRESOLVED ISSUES ARE "ACQUITTAL ISSUES"

AND "MORE MERITORIOUS ISSUES" THAT SHOULD HVAE BEEN RAISED

BY APPELLATE COUNSEL. APPLICANT ALSO SHOWS THIS COURT THAT

Re\. 01/14'14 ., ' . '

EVEN THOUGH IT HAS BEEN OVER FIVE YEARS SINCE THE DIRECT

APPEAL WAS AFFIRMED, APPLICANT HAS NOT HARMED.OR PREJUDICED

THE COURT AND THAT HE HAS BEEN DELAYED BY GOOD CAUSE IN HIS

PURSUIT OF JUSTICE. APPLICANT WILL SHOW THIS COURT THESE EIGHT

ISSUES "NOT PRESENTED BY APPELLATE COUNSEL" IN THE MEMORANDUM

OF LAW IN SUPPORT OF THIS WRIT. THESE EIGHT ISSUES THAT WERE

"NOT PRESENTED BY APPELLATE COUNSEL'' ARE CONSTITUTIONAL

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. AGAIN, APPLICANT

IS NOT CHALLENGING HIS CONVICTION IN THIS 11.07 HABEAS CORPUS

APPLICATION. HE IS ONLY SHOWING THIS COURT THAT HE IS ENTITLED

TO AN "OUT-OF-TIME APPEAL" BECAUSE OF CONSTITUTIONALLY

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. THIS IS A ONE

GROUND WRIT FOR AN "OUT-OF-TIME APPEAL". THE LIST OF "ISSUES

NOT PRESENTED BY APPELLATE COUNSEL" IS ON PAGE ONE OF THE

MEMORANDUM OF LAW ATTACHED TO THIS WRIT.

R~.!\ . 0 I I 14/14 ' ..

GROLJ~D TWO: N/A

FACTS Slii'PORTI~(; GROliND TWO: N/A

R~o:\. 01!1-l'l-1 GROlJNI> THREE: N/A

FACTS SUPPORTING GROV~O THREE:

Ill

R~:'. 0 I I 14/14 N/A

II

RcY. flJ.'J4.'14 GR

FACTS SliPPORTI:"'G GROUND FOUR:

R~.!Y. 01/J.tl-t N/A

Rc". 01'14/ 1-i ..

GROCND:

1-t . '

Rc\. 0111-VI-t J

WHEREFORE. APPLICA~T PRAYS THAT THE COtRT GRANT APPLICA~T RELIEF TO WHICH HE \1.-\ Y BE ENTITLED 1:\ THIS PROCEEDING.

VERIFICATIO~

This application must be 'en lied llr it will he dismissl·d l(lr non-compliance. For \eritication purpo:>es, an applicant is a person tiling the application nn his or her own behalf. :'\ petitioner is a person tiling the application on be hal r of an applicant. li.)r cx.ampk. an applicam· s allomcy. An inmate is a person who is in custody.

The inmate applicant must sign either the "Oath B..:forc a ~~1tary Publit:" before a nntary pub! il: or the "Inmate. s Declaration .. without a not

A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public" hd(Jrc a notary public and must also compkte "Pt:titiom:r's Information." An inmate petitioner must sign either the "Oath Bct

OATH BEFORE .-\ NOTARY P~BLIC

STA TF. OF TEXAS

COUNTY OF N/ A

-·---·- .......__. ___. . _. ___ _!Y~_ . ·- _. . ···----- .. being July swom. under oath says: "I am the applicant. petitioner (circle one) in thi~

...... ------ - - - -N/A ----------- Signature of Ap!)licant i Petitioner (circle one)

SUBSCRIBED Al\D SWOR\J TO BEFORE \1E TillS DAY OF . ~0

N/A Signaturl' ot'~otary Puhlic

Re\. OJ.'I·VI4 --·-··----·---.. QtpPLICANI~ PRO-SE PETITIONER'S I~FORMATI

Stat~ bar number, if applicable: _----..:...N'-'-1 8______________

Address: DALHART UNIT

11950, F.M. 998

DALHART, TEXAS 79022

Tclcphonc: _ _ _N_/_A__________

Fax: N/A

INMATE'S DECLARATIO~

I. GE0 R~-E WI L~~~ MA :._ _ _ .am rh~pli~~~;:;,Pctitioner (circle one) and being presently incarcerated in -~~-~8 L HA~~---~~~_T________________ .declare under penalty of

perjury that, according to my belief. the 111cts stared in the above application arc true and correct.

21 Signed on ----'.._/:::::'-_ _ .J../_2-=-·---· 20 / ~ -·.·/ ;' j -.. . ·._,. /'. / "-' .. L'- . ._ ;,; _ ~ / l.J .-z-'::...1 I • . ((" . Signaturd ol~~~~ql_JUI Petitioner (circle onc).f

Rev. Olil4/14 . 1 ..

APPLICANT PRO-SE PETITIO~ER'S I~ FORMA TIO:"i APPLICANT Petitioner"s printed name: GEORGE WILLARD MAY #01 079659

11950 F.M. 998

DALHART TEXAS 79022

Tdcphonc: ___:N..:.:/:.....A:..:.__ _ _ _ _ _ _ _ _ _ _ _ _ __

N/A Fax: - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Signed on-~-- ________:___[ ___ ..... . ~0 -

--~~-~{.&/__?71~ Signature of Petitioner flpplicant

Rev. Ol/14il4 -7 I! /2.[) c) {V j)_5. fjt<..,r s~~Jrv"- ;L roDe lT 5. A.4.c__ LIST OF ISSUES NOT PRESENTED

ISSUE#1 APPLICANT IS ACTUALLY INNOCENT, A CONSTITUTIONAL MANIFEST MISCARRIAGE OF JUSTICE CAUSED HIS WRONGFUL CONVICTION

ISSUE#2 CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE COURT ALLOWED IMPERMISSIBLE "OUTCRY TESTIMONY/OUTCRY WITNESS".

ISSUE#3 CONSTITUTIONAL RIGHT TO A FAIR TRJAL WAS VIOLATED WHEN THE COURT ALLOWED IMPERMISSIBLE VICTIM/WITNESS .TO TESTIFY ISSUE#4 APPLICANT ARGUES HE WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OR DUE COURSE OF LAW BECAUSE EVIDENCE WAS INSUFF- ICENT TO PROVE ALL THE ELEMENTS OF THE OFFENSE"BEYOND A REASONABLE DOUBT" ISSUE#5 APPLICANT ARGUES CONSTITUTIONAL INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

ISSUE#6 APPLICANT WAS DENIED DUE PROCESS AND DUE COURSE OF LAW AND A FAIR TRIAL BECAUSE OF SUPPRESSED MATERIAL EVIDENGE - A BRADY VIOLATION

ISSUE#7 CONSTITUTIONALLY FUNDAMENTALLY UNFAIR WHEN THE COURT FAILED TO RULE ON CRITICAL OBJECTIONS OF DEFENSE AND PROSECUTION

ISSUE#B CONSTITUTIONALLY FUNDAMENTALLY UNFAIR WHEN THE COURT FAILED TO DIRECT THE JURY TO DISREGARD ANY STATEMENTS REFERRING TO THE APPLICANT FROM STATEMENTS MADE FROM THE SECOND VIDEOTAPE

EVITTS V. LUCEY,469 U.S. 387. 105 S.Ct.830 (1985) Stating:

"IF THE APPELLATE ATTORNEY FAILED TO RAISE AN ISSUE ON APPEAL, THAT WOULD HAVE BENEFITED THE APPLICANT, THE APPLICANT MAY BE ELIGIBLE FOR OUT OF TIME APPEAL."

1 .