NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ERNEST BENL MCINTYRE Petitioner, Appellant
V.
THE STATE OF TEXAS Appellee
On Petition for Discretionary Review
from the Third Appellate District of
Texas, in Appeal No. 03-12-00508-CR
and the 27th Judicial District of
Bell County in Trial No. 66893.
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT ERNEST BENL MCINTYRE NOT REQUESTED 202 Avenue F, Apt.#2 Moody, Tx. 76557 (254) 853-9146 RECEIVED IN PETITIONER, APPELLANT PRO SE COURT OF CRIMINAL APPEALS JAN 08 2015 FILED IN COURT OF CRIMINAL APPEALS Abel Acosta, Clerk JAN 16 2015
Abel Acosta, Clerk IDENTITY OF JUDGE, PARTIES & COUNSEL
Ernest Benl Mclntyre Judge Joe Carroll 202 Avenue F, Apt.#2 27th Judicial District Moody, Tx. 76557 Bell County, Texas (254) 853-9146 Trial Judge (Retired) Petitioner, Appellant pro se
James Hewitt Anthony Smith 200 E. Central Ave., Ste.100 18 S. Main St.,Ste.814 Belton, Tx. 76513 Temple, Tx. 76501 Trial Counsel For Petitioner Trial Counsel for Petitioner (Plea) (Sentencing) Tim Copeland Paul & Leslie McWilliams 930 S. Bell Blvd.,Ste.408 As st.Dist.Attorneys Cedar Park, Tx. 78613 P.O. Box 540 Appellate Counsel for Petitioner Belton, Tx. 75613 Trial Counsel for State Bob Odom Asst.Dist.Attorney P.O. Box 540 Belton, Tx. 76513 Appellate Counsel for State ITEM TABLE OF CONTENTS PAGE
Identity of Judge, Parties & Counsel i Table of Contents ii
Index of Authorities iii
Statement Regarding Oral Argument iv Statement of the Case iv
Statement of Procedural History iv-v GROUNDS FOR REVIEW
GROUND ONE
THE COURT OF APPEALS ERRED IN APPLYING A MGHTENED STANDARD OF REVIEW WHEN IT CONDUCTED AN OUTCOME DETERMINATIVE TEST CONCLUDING THAT "WE HAVE REVIEWED THE RECORD AND FIND NO REVERSIBLE ERROR," RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS" TO SUPPORT COURT APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW 1-4 GROUND TWO
THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED APPELLATE'COUNSEL TO WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW ATTENTION TO POTENTIAL ERRORS IN THE RECORD 5-19
GROUND THREE
THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD CONTAINS NO ARGUABLE BASES FOR APPEAL 5-19
Prayer 19 Certificate of Service 20
APPENDIX
EXHIBIT A 2. Memorandum Opinion EXHIBIT B - Close up photos of suspect computer EXHIBIT C - Close up photos of suspect monitor EXHIBIT D - Photos of mass array of computer parts
ii CASE INDEX OF AUTHORITIES PAGE
Anders v. California, 386 U.S. 738 (1967) iv,l,3,4,5,6,12,19 Arnold v. State, 853 SW 2d 543 (Tex.Crim.App. 1993) 17 Banks v. State, 341 SW 3d 428 (Tex.App.-Houston [1st Dist] 2009, no pet). 6 Beck v. State, 682 SW 2d 550 (Tex.Crlm.App.1985) 9 Black's Law Dictionary 9th Edition 2009 3,19 Bledsoe v. State, 178 SW 3d 824 (Tex.Crim.App.2005) 4,18 Brady v. Maryland, 373 U.S. 83 (1963) 12,14 Cook v. State, 902 SW 2d 471 (Tex.Crim.App.1995) 8 Cross v. State, 489 SW 2d 572 (Tex.Crim.App. 1973) 2 Currie v. State, 516 SW 2d 684 (Tex.Crim.App. 1974) 1,2,4 Durham v. State, 557 SW 2d 526 (Tex.Crim.App. 1977). 2 Eastep v. State, 941 SW 2d 130 (Tex.Crim.App. 1997) 8 Felton, Ex Parte, 815 SW 2d 733 (Tex.Crim.App. 1991) 15 Gainous v. State, 436 SW 2d 137 (Tex.Crim.App. 1969) iv,l,2,4,5 Garner v. State, 300 SW 3d 763 (Tex.Crim.App.2009) 4 Guzman v. State, 23 SW 3d 381 (Tex.App.-Houston [1st Dist] 1999, no pet) 2 High v. State, 573 SW 2d 807 (Tex.Crim.App. 1978) 1,2,4,5,6 Hill v. Lockhart, 474 U.S. 52 (1985) 13 Kniatt v. State, 239 SW 3d 910 (Tex.App.-Waco 2007, on rehearing, 255 SW 3d 311, pet. ref'd) 17 Kyles v. Whitley, 514 U.S. 419 (1995) 12 Lewis, Ex Parte, 587 SW 2d 697 (Tex.Crim.App. 1979) 12,13,14 Luna v. State, 527 SW 2d 548 (Tex.Crim.App. 1975) 2 McCoy v. C.O.A. of Wisconsin, Dist. 1, 486 U.S. 429 (1988) 2 McLeod v. Harris, 582 SW 2d 772 (Tex.1979) 18 McManus v. State, 591 SW 2d 505 (Tex.Crim.App. 1979). 9 Miles v. State, 204 SW 3d 822 (Tex.Crim.App.2006) 15 Mowbray, Ex Parte, 943 SW 2d 461 (Tex.Crim.App. 1996) 12 North Carolina v. Alford, 400 U.S. 25 (1970) 13 Riney v. State, 28 SW 3d 561 (Tex.Crim.App.2000) 8
in CASE INDEX OF AUTHORITIES CONTINUED PAGE
Roberson v. State, 617 SW 2d 708 (Tex.Crim.App. 1981) 2 Schulman, In Re, 252 SW 3d 403 (Tex.Crim.App.2008) 6,13,19 Scott v. State, 543 SW 2d 128 (Tex.Crim.App. 1976) .2 Sommers v. Concepcion, 20 SW 3d 27 (Tex.App.-Houston [14th Dist] 2000, pet.denied) 17 Stafford v. State, 813 SW 2d 503 (Tex.Crim.App. 1991) 12 Stephens v. State, 35 SW 3d 770 (Tex.App.-Houston [1st Dist] 2000, no pet) 2 Strickland v. Washington, 104 S.CT. 2052 (1984) 15,18 Studer v. State, 799 SW 2d 263 (Tex.Crim.App. 1990) 9 United States v. Chronic, 104 S.CT. 2039 (1984) 15 Vineyard v. State, 958 SW 2d 834 (Tex.Crim.App. 1998) 8 Wilson v. State, 976 SW 2d 254 (Tex.App.-Waco 1998, no pet) 4 Wilson v. State, 40 SW 3d 192 (Tex.App.-Texarkana 2001, no pet) 2,4 Wyatt v. State, 23 SW 3d 18 (Tex.Crim.App.2000) 14
STATUTES
Tex. R. Civ. Proc. Rule 18b.'(b)(1) & (b)(2)... 17 Tex. Code of Crim. Proc. Art. 1.14(b) 9 Tex. Penal Code § 43.26 iv
ma STATEMENT REGARDING ORAL ARGUMENT
The applicable law is unambiguous, and the analysis required
to properly apply the law to the facts is not complicated.
Consequently, Petitioner does not believe that oral argument
would substantially aid the Court. Therefore, oral argument is
waived.
STATEMENT OF THE CASE
On.Febuary 16, 2012, Petitioner entered an open plea of guilty
to the trial court to the third degree felony offense of possession
of child pornography. (RR.3,p.4, and see TEX.PENAL CODE § 43.26). On July 11, 2012, after preparation of a pre-sentence investigative
report and after hearing evidence and argument of counsel, the trial
court assessed a sentence of nine years cinfinement. (RR.5,p.64). Petitioner was also ordered to register for life as a sex offender.
(RR.3,p.8).
STATEMENT OF PROCEDURAL HISTORY
Court appointed appellate counsel, Tim Copeland, filed a
motion to withdraw from the appeal supported by an ANDERS brief.
See ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); GAINOUS V. STATE, 436 SW 2d 137 (Tex.Crim.App.1969). In a Memorandum Opinion, the Third District Court of Appeals affirmed Petitioner's conviction
iV and sentence and granted court appointed appellate counsel's motion to withdraw on June 4, 2014. See EXHIBIT A. After two
extensions of time were granted, Petitioner filed a motion for
rehearing en banc in the Third Court of Appeals which was
overrulled on October 10, 2014. After one extension of time was
granted, this petition for discretionary review follows.
GROUNDS FOR REVIEW
GROUND NO. ONE
THE COURT OF APPEALS ERRED IN APPLYING A HIGHTENED STANDARD OF REVIEW WHEN IT CONDUCTED AN OUTCOME DETERMINATIVE TEST CONCLUDING THAT "WE HAVE REVIEWED THE RECORD AND FIND NO REVERSIBLE ERROR," RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS" TO SUPPORT COURT APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW.
GROUND NO. TWO
THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED APPELLATE COUNSEL TO WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW ATTENTION TO POTENTIAL ERRORS IN THE RECORD.
GROUND NO. THREE
THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD CONTAINS NO ARGUABLE BASES FOR APPEAL.
V ARGUMENT
THE COURT OF APPEALS ERRED IN APPLYING A HIGHTEND STANDARD OF REVIEW WHEN IT CONDUCTED AN OUTCOME DETERMINATIVE TEST CONCLUDING THAT, "WE HAVE REVIEWED THE RECORD AND FIND NO REVERSIBLE ERROR," RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS" TO SUPPORT COURT APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW.
Petitioner contends that the court of appeals decision issued
on June 4, 2014, conflicts with the decisions of the U.S. Supreme
Court and the Texas Court of Criminal Appeals as articulated in
ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); GAINOUS V. STATE, 436 SW 2d 137 (Tex.Crim.App.1969), CURRIE V. STATE, 516 SW 2d 684 (Tex. Crim.App.1974) and HIGH V. STATE, 573 SW 2d 807 (Tex.Crim.App.1978), and that this Court is called upon to (1) exercise its supervisory authority, and; (2) decide an important question of state or federal law that has not been, but should be, settled by this
Court..Specifically, the court of appeals conducted an outcome
determinative test concluding that it found no reversible error
and thereafter granted court appointed appellate counsel's motion
to withdraw.
In ANDERS, the U.S. Supreme Court articulated that a court
appointed appellate attorney, after a FULL examination of the
record, may withdraw ONLY if he/she finds that an appeal is (
"wholly frivolous." See ANDERS, 386 U.S. at 744. Likewise, and in
conformity with ANDERS, this Court has applied the same standard of review in GAINOUS, CURRIE AND HIGH, that an appeal must be
deemed "wholly frivolous" to support a motion to withdraw. See
GAINOUS, 436 SW 2d 137; CURRIE, 516 SW 2d 684 and HIGH, 573 SW 2d
807. The decisions of the Supreme Court in ANDERS and the Court of
Criminal Appeals in GAINOUS, CURRIE and HIGH, are all silent as to
any application of a standard of review that requires the reviewing
court to review the record for "reversible error" before allowing a court appointed appellate attorney to withdraw.
This Court itself has omitted the use of this standard of
review for a number of years in other cases besides GAINOUS, CURRIE
and HIGH. See CROSS V. STATE, 489 SW 2d 572 (Tex.Crim.App.1973); LUNA V. STATE, 527 SW 2d 548 (Tex.Crim.App.1975); SCOTT V. STATE, 543 SW 2d 128 (Tex.Crim.App.1976); DURHAM V. STATE, 557 SW 2d 526 (Tex.Crim.App.1977) and ROBERSON V. STATE, 617 SW 2d 708 (Tex.Crim. App.1981); See also McCOY V. COURT OF APPEALS OF WISCONSIN, DIST.
1, 486 U.S. 429 (1988); GUZMAN V. STATE, 23 SW 3d 381 (Tex.App.- Houston [1st Dist] 1999, no pet.); STEPHENS V. STATE, 35 SW 3d 770 (Tex.App.-Houston [1st Dist] 2000, no pet.) and WILSON V. STATE, 40 SW 3d 192 (Tex.App.-Texarkana 2001, no pet.). It would stand to reason that the application of this standard of review which
requires a reviewing court to review the record for "reversible error" was omitted from these opinions for good reason; that reason
being that in reviewing the record to determine whether an appeal
contains "reversible error" calls for a different result than reviewing the record to determine whether an appeal is "wholly frivolous."
The word "wholly", is defined as "not partially; fully; completely." "Frivolous," is defined as "lacking a legal bases or legal merit; not serious; not reasonably purposeful." See BLACK'S
LAW DICTIONARY, NINTH EDITION 2009. This would indicate that the
Supreme Court in ANDERS intended an appeal to be deemed fully,
completely and absolutely frivolous to support a court appointed
appellate attorney's motion to withdraw. On the other hand, "reversible error" is defined as, "an error that affects a party's
substantive rights or the; case's outcome, and thus is grounds for reversal if a party properly objected at trial." Id. Therefore, reviewing the record to determine whether it contains "reversible error" has the same effect as denying an appellate brief on the merits when in fact no such;brief has been prepared by skilled
counsel, which further denies Petitioner his right to counsel on
appeal; the same right that is afforded to other defendants who
have the financial means to hire appellate counsel. This is in
conflict with the Supreme Court's holding in ANDERS. The Court's primary concern in ANDERS was to provide framework that would
guarantee an indigent appellant the same rights and diligence on
appeal that are afforded one who is financially able to retain
his/her own attorney. See ANDERS, 386 U.S. 738 generally. - •" At least two courts of appeals have concluded that "...the appellate court need not be able to say with certainty that [an] appeal has merit, the appellate court need only say that [an] issue warrants further developement by counsel on appeal." See WILSON V. STATE, 40 SW 3d at 200; and WILSON V. STATE, 976 SW 2d
254,257 n4 (Tex.App.-Waco 1998,no pet.). This would indicate that these two courts of appeals have recognized a difference in
the standard of review as to whether the record contains "reversible
error" versus whether an appeal is "wholly frivolous," as required by ANDERS to permit court appointed appellate counsel to withdraw
from an indigent's appeal; a fact that may have been overlooked by this Court in GARNER V. STATE, 300 SW 3d 763 (Tex.Crim.App.2009), which is the opinion relied upon by the court of appeals in the
present appeal. See also BLEDSOE V. STATE, 178 SW 3d 824,825 (Tex. Crim.App.2005). Accordingly, this Court is called upon to determine (l) whether the court of appeals subjected Petitioner to a hightened standard
of review in concluding that it "finds no reversible error," and, if so, (2) does this hightened standard of review conflict with the Supreme Court's holding in ANDERS and this Court's application
of ANDERS in GAINOUS, CURRIE and HIGH, that an appeal be deemed
"wholly frivolous" to support a motion to withdraw by court appointed
counsel on appeal. GROUND NO. TWO
THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED APPELLATE COUNSEL TO WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW ATTENTION TO POTENTIAL ERRORS IN THE RECORD.
THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD CONTAINS NO ARGUABLE BASES FOR APPEAL.
To avoid unnecessary duplication grounds two & three are
argued together.
The U.S. Supreme Court has determined that a court appointed
appellate attorney who represents an indigent defendant on first
appeal, may withdraw from from such appeal ONLY if he/she determines that the appeal is "wholly frivolous," i.e., that there are no arguable points of error to advance on appeal. See ANDERS V.
CALIFORNIA, 386 U.S. 738, 87 S.CT. 1396, L.Ed.2d 493 (1967); GAINOUS V. STATE, 436 SW 2d 137 (Tex.Crim.App.1969). Should this occur, counsel is required to discuss in his brief, the evidence adduced
at trial, point out where pertinent testimony may be found in the
record, refer to pages in the record where objections were made,
the nature of the objection, the trial court's ruling and discuss either why the trial court's ruling was correct or why the appellant
was not harmed by the ruling of the court, or anything that "might" arguably support the appeal. See HIGH V. STATE, 573 SW 2d 807 * 810-813 (Tex.Crim.App.1978). Thereafter, the court of appeals is required to thoroughly review the record, INCLUDING MATTERS NOT
DISCUSSED IN THE BRIEF, to determine whether the appeal is "wholly frivolous." Id at 811. If the court of appeals determines that
counsel did not address a potential ground for appeal, and the
court of appeals believes that the ground for appeal meets the low
threshold for disclosure in counsel's ANDERS brief, the court "will (1) grant counsel's motion to withdraw, and;.(2) abate the appeal and remand to the trial court for appointment of new appellate
counsel with directions to file a merits brief." See BANKS V. STATE, 341 SW 3d 428,431 (Tex.App.-Houston [1st Dist] 2009, no pet.) citing IN RE SCHULMAN, 252 SW 3d 403,409 (Tex.Crim.App.2008). Petitioner contends that (1) the issues presented herein meet the
low threshold for disclosure in counsel's ANDERS brief but were
not included and counsel did not explain why these issues should
not be briefed on appeal, violating the requirements of ANDERS and
HIGH, (2) that the court of appeals erred in allowing counsel to withdraw without discussing the following issues in his ANDERS brief,
and; (3) that the court of appeals further erred in concluding that the following issues should not be briefed by counsel on appeal.
DEFECTIVE INDICTMENT
Petitioner was indicted for possession of child pornography
pursuant to Penal Code § 43.26. The indictment states in pertinent part:
..."did then and there intentionally and knowingly posses visual material that visually depicted, and which the defendant knew visually depicted A CHILD WHO was younger than 18 years of age at the time THE IMAGE of THE CHILD was made, engaging in sexual conduct, to-wit: actual sexual intercourse."
(CR-4). It was to this indictment and ONLY to this indictment
that Petitioner entered an open plea of guilty on Febuary 16, 2012.
(RR.3,p.4 & 6). The State then entered Petitioner's Judicial Confession without objection, identified as State's 1, which tracked the language of the indictment verbatim. (RR.3,p.9)(CR-46). Nothing in the record heretofore indicates that Petitioner was
being charged with, or had entered an open plea of guilty to,
anything more than one photograph depicting one child engaging in
sexual intercourse. However, during sentencing held July 11, 2012,
the State produced evidence that Petitioner was on trial for
possessing seven different images and four series of child
pornography which consisted of an unknown number of images because
testimony from Detective Gary Richards indicates that a "series" means that it could be ten photos or it could be one hundred
photos of any one particular child. (RR.5,p.21). These images were admitted into evidence without objection and were identified
as State's 3. (RR.5,p.34). The Index of Exhibits identifies State's 3 as a "Large number of images taken from E. Mclntyre's computer." (RR.5,p.4). These images were all identified by the National Center for Missing and Exploited Children to be actual items of
child pornography. (RR.5,p.20-21). Each of these images of child pornography constitutes an allowable unit of prosecution in itself.
See VINEYARD V. STATE, 958 SW 2d 834,837-38 (Tex.Crim.App.1998). The trial court reviewed these "large number of images" and conducted "sort of a quick trial" while determining punishment.
(RR.5,p.63). Petitioner was sentenced to 9 years confinement. The Texas Constitution guarantees to defendants the right to
indictment by a grand jury for all felony offenses. See COOK V.
STATE, 902 SW 2d 471,475 (Tex.Crim.App.1995). Both the Sixth Amendment and Article 1, § 10, require that a defendant be given notice before trial of the "nature and cause" of the accusation
against him, and require further that the notice be given with
sufficient clairity and detail to enable the defendant to
ANTICIPATE THE STATE'S EVIDENCE AND PREPARE A PROPER DEFENSE TO IT.
See EASTEP V. STATE, 941 SW 2d 130,132 (Tex.Crim.App.1997). Under article 1, § 10, the requisite notice must come from the face of the charging instrument. Id. The accused is not required to look
elsewhere. See RINEY V. STATE, 28 SW 3d 561,565 (Tex.Crim.App.2000). In this case, Petitioner did not receive the required notice.
Petitioner had no idea that he pleaded guilty to a mountain of
child pornography images. It is not sufficient to say that Petitioner
knew with what offense he was charged. The inquiry must be whether
the charging instrument in writing furnished that information in plain and intelligible language. See BECK V. STATE, 682 SW 2d 550,
554 (Tex.Crim.App.1985). The fundamental protections of adequate notice and due process require careful examination and consideration
from the perspective of the accused. See MCMANUS V. STATE, 591 SW
2d 505,515 (Tex.Crim.App.1979). Petitioner contends that because adequate notice is encompassed by fundamental protections and due
process, that the present indictment was fundamentally defective
and did not constitute an "indictment" under article V, § 12, of
the Texas Constitution. Should this Court find that this error
constitutes a defect in form or of substance requiring an objection
or pre-trial motion to quash, See STUDER V. STATE, 799 SW 2d 263,
268 (Tex.Crim.App.1990); see also TEXAS CODE OF CRIMINAL PROCEDURE ART. 1.14(b), this error still raises a claim of ineffective assistance of trial counsel for these omissions, as well as an
ineffective assistance of appellate counsel by failing to brief
this issue for appeal, or at very least, draw attention to this
issue in appellate counsel's ANDERS brief.
VIOLATION OF THE BRADY RULE /INVOLUNTARY GUILTY PLEA AND INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
To avoid unnecessary duplication, the Brady violation,
involuntary guilty plea and ineffective assistance of trial counsel
for failing to motion to withdraw Petitioner's guilty plea or file a motion for new trial will be briefed together. On Febuary 16, 2012, Petitioner entered an open plea of guilty
to the trial court to the third degree felony offense of possession
of child pornography. (RR.3,p.6). Petitioner was represented by retained attorney Anthony Smith. (Smith)(CR-23). The trial court heard a motion for continuance on punishment on May 31, 2012, that
was filed by Smith. (RR.4,p.l). During this hearing, the State untimely presented Smith with discovery of some crime scene
photographs. (Photos)(RR.4,p.4-5). There were forty-seven (47) crime scene photos handed to Smith at this time. (RR.4,p.8). These photos depict, inter alia, the inside and outside of Petitioner's residence and shed, photos which were later identified and admitted
into evidence as State's 2. (RR.5,p.16). The "shed" was later described as a computer work-shop with various computers and
computer parts. (RR.5,p.15). The computer containing the child pornography, suspect computer hereinafter, was custome built, (RR.5, p.22), and contained three (3) seperate hard drives for storage. (RR.5,p.31). The suspect computer was recovered from Petitioner's work-shop. (RR.5,p.36). Two of the photos contained in State's 2, are close-ups taken by law enforcement at the time the suspect
computer was seized. See EXHIBIT B. These photos show the left
and right side casings of the suspect computer have been removed.
This fact, in conjunction with testimony from Agent Baskerville
that the suspect computer was custome built, (RR.5,p.22), would have supported a plausible defense that the suspect computer was
10 still in the process of being built and tested at the time of the
alleged offense during May 2008. Indeed, Petitioner is a computer
network engineer and computer technician. (RR.5,p.46). Moving now to three additional photos, also contained in
State's 2, are photos of the suspect monitor taken by law enforcement while the suspect computer was turned on and operating.
See EXHIBIT C. A close inspection of the display on the suspect
monitor in exhibit , reflects dates of April 28, 2003. These dates
represent the dates the user loaded the contraband into the hard
drives. This strongly supports a defense that the child pornography,
contraband hereinafter, was already present in the suspect hard
drive when the suspect computer was custom built in May 2008.
Seven (7) additional photos contained in State's 2, show a mass array of used computer parts. See EXHIBIT D. Indeed, Agent
Baskerville confiscated numerous hard drives and computer storage
devices from Petitioner's workshop. (RR.5,p.30-31). A reasonable summation of all the foregoing evidence adduced during punishment
would have supported an affirmative defense and trial strategy
that Petitioner, while using used computer parts, custom built
the suspect computer without knowledge that he was installing used
hard drives that contained contraband. Except, Petitioner was
denied this defense because the State withheld the exculpatory
photos until AFTER Petitioner pleaded guilty. The trial court
opined that if the photos were important enough for the State to
11 introduce them into evidence, that they were important enough to
give the defense discovery of the said photosv (RR.4,p.9). (EMPHASIS ADDED). Even so, the State and the trial court still expresses thier objections should Petitioner attempt to contest his guilt at the
time said photos were untimely disclosed by the State. (RR.4,p.lO).
The Due Process Clause of the Fourteenth Amendment requires
disclosure of favorable evidence even without a request. See KYLES
V. WHITLEY, 514 U.S. 419,433 (1995); BRADY V. MARYLAND, 373 U.S. 83 (1963) and EX PARTE MOWBRAY, 943 SW 2d 461,466 (Tex.Crim.App. 1996), a request that was made by defense counsel in the present case. (CR-24). This mandatory disclosure of material evidence applies in a bench trial on a guilty plea. See EX PARTE LEWIS, 587
SW 2d 697 (Tex.Crim.App.1979). Petitioner was entitled to PRE TRIAL discovery of this evidence as a matter of law. The court of
appeals erroneously concluded that Petitioner failed to show that
the said photos were favorable to him. This is not Petitioner's
responsibility to meet this burden because the court of appeals
is not permitted to consider Petitioner's pro se response on the
merits. See STAFFORD V. STATE, 813 SW 2d 503,511 (Tex.Crim.App. 1991) quoting ANDERS, 386 U.S. at 744. The issue for the court of appeals was to determine whether there were arguable bases for
appeal. Id. If so, then a skilled attorney would brief the issue
in an attempt to convince the court of appeals that the photos
12 were favorable to Petitioner. See IN RE SCHULMAN, 252 SW 3d at
409 (the appeal will be abated and remanded to the trial court for appointment of counsel to file a merits brief). As stated in ground one, this gives the effect of denying Petitioner's appeal on the merits without counsel briefing the issue.
The court of appeals erroneously concluded further that the
State's withholding of the photos did not affect the voluntariness
of Petitioner's guilty plea as would provide an arguable bases for appeal. The proper analysis in determining whether a guilty plea
was made voluntarily is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant." See HILL V. LOCKHART, 474 U;S. 52, 56
(1985)(quoting NORTH CAROLINA V. ALFORD, 400 U.S. 25,31 (1970)). As demonstrated, the record heretofore conclusively shows an
alternative course of action that was available to Petitioner
PRIOR to entering his guilty plea if only Petitioner would have
been aware that the State possessed the said crime scene photos
that would have supported a defense theory that Petitioner custom
built the suspect computer not knowing that it contained contraband,
Such a denial of due process before entry of a guilty plea cannot
be waived by that plea, but to the contrary, as a matter of law
renders the plea involuntary. See EX PARTE LEWIS, 587 SW 2d at 703.
Petitioner and his attorney could not make an intelligent decision
13 on whether to plead guilty when they had not received favorable
information that was in the State's file to which they were entitled. Id. A fact that the court of appeals ignored when
placing emphasis on Petitioner's confession during the punishment hearing. See MEMORANDUM OPINION pg. 2. As stated, the trial court
and the State had both already expressed their objections should
Petitioner attempt to contest his guilt at the time the said
photos were untimely disclosed to the defense. (RR.4,p.lO). This left Petitioner with the only alternative trial strategy to plead
guilty, (RR.3,p.6), accept full responsibility for the contraband, (RR.5,p.47), and request probation from the trial court. (RR.5,p. 59-61). A trial strategy that yielded Petitioner a nine (9) year prison sentence. (RR.5,p.64). Accordingly, it cannot be said that the outcome of these proceedings would have been the same if
Petitioner would have been provided PRE-TRIAL discovery of the
said photos. See BRADY, 373 U.S. 83 and WYATT V. STATE, 23 SW 3d
18,27 (Tex.Crim.App.2000)(setting standard which creates a "reasonable probability" that the outcome of the proceedings would have been different).
The inquiry into the withholding of the photos is not limited
to the BRADY claim and the voluntariness of Petitioner's guilty plea. This issue further raises an ineffective assistance of
trial counsel claim because counsel should have filed amotion for
14 new trial or a motion to withdraw Petitioner's guilty plea at the time that the said photos were untimely disclosed and counsel
himself stated that he believed that the photos were more
pertinent than just crime scene photos. (RR.4,p.l0). Indeed, Petitioner had the right to the presumption of innocence and the
right to put the State to its burden of proof before a:criminal
conviction. See MILES V. STATE, 204 SW 3d 822,825 (Tex.Crim.App. 2006)(and cases cited therein). If trial counsel would have filed
a motion to withdraw Petitioner's guilty plea or a motion for new
trial, a hearing on either motion would have (1) entitled Petitioner to a new trial holding the State to its burden of proof, or; (2) made a record of the proceedings sufficient enough to preserve
this error for appellate review. Trial counsel's conduct fell below an objectionable standard of reasonableness, and, but for
counsel's errors, the outcome of these proceedings would have
been different. See STRICKLAND V. WASHINGTON, 104 S.CT. 2052
(1984). And although the reviewing court generally reviews the totality of counsel's representation, a single error may be the focus of a claim of ineffective assistance of counsel as well.
See UNITED STATES V. CHRONIC, 104 S.CT. 2039,2045-46, n.20 (1984)
and see EX PARTE FELTON, 815 SW 2d 733,735-36 (Tex.Crim.App.1991) (supreceded on other grounds).
15 INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FAILING TO.MOVE TO RECUSE JUDGE CARROLL
On May 31, 2012, the trial court heard Petitioner's motion for continuance filed by defense counsel. (Smith) During the hearing on said motion, the following exchange occurred:
THE COURT: '.'..I don't care about your little fusses over your
discovery. But I'm going to revoke his bond: and I'm going to put him back in jail, and he can wait in jail until you get ready for
trial. 7:.I.'v done nothing except hear from Mr Mclntyre for the
last almost two years, and I'm just sick of dealing with him. And he's going to go to court, and he's going to go to trial, and he's going to get his trial over with, and I'm not going to wait for him anymore. And, so, I'm going to put him in jail and revoke his bond, and you can have two weeks or three weeks, or whatever you
want."
MR SMITH: Yes, sir.
THE COURT: Okay ? And he'll be waiting in jail while you get your
act together.
MR SMITH: Judge, I just want to be effective. I appreciate that.
THE COURT: Well, two weeks.
MR SMITH: That's fine, Your Honor.
THE COURT: Is that effective ?...So Mr Mclntyre, I'm going to raise your bond. I'm not:.going..to set a bond.' :.I 'm:.goi.ng to hold you
16 without a bond... .
(RR.4,p.11-13). Petitioner asserts that these statements and rulings by Judge Carroll demonstrate the judge's inability to be impartial, (1) to the Petitioner and his counsel; (2) as to the rules of evidence governing discovery, and: (3) Petitioner's right to due process and due course of law. At this time, Smith
should have filed a motion to recuse Judge Carroll. See TEX. R.
CIV. PROC. RULE 18b (b)(1). These provisions governing recusal apply to criminal cases. See ARNOLD V. STATE, 853 SW 2d 543,544
(Tex.Crim.App.1993). A motion to recuse on the grounds that the judge's impartiality may be questioned would not have required a showing of bias or partiality arising from an extrajudicial source
that is outside the judicial proceeding. See KNIATT V. STATE, 239
SW 3d 910,920 (Tex.App.-Waco 2007, on rehearing, 255 SW 3d 311, pet.ref'd). Judge Carroll's statements also display bias and prejudice to Petitioner and Smith. See TEX. R. CIV. PROC. RULE
18b (b)(2). This provision generally requires a showing that the
bias or prejudice stemmed from an extrajudicial source. See
SOMMERS V. CONCEPCION, 20 SW 3d 27,44 (Tex.App.-Houston [14th Dist] 2000, pet.denied). However, Judge Carroll's remarks in the present case show a deep-seated antagonism that makes fair
judgment impossible. Under these particulars, Petitioner would
not have been required to show that the bias or prejudice stemmed
from an extrajudicial source. See KNIATT, at 920. If Smith would
17 have filed a motion to recuse, Judge Carroll would have been
required to either grant the motion or refer the motion, so
another judge could determine the merits of the motion to recuse.
See MCLEOD V. HARRIS, 582 SW 2d 772,775 (Tex.1979). A hearing on the motion to recuse would have, (1) further developed any grounds for recusal, and; (2) preserved this error for appellate review.
Trial counsel's failure to file a motion to recuse Judge
Carroll.fell below an objectionable standard of reasonableness,
and but for counsel's error, the outcome of these proceedings
would have been different because Petitioner's punishment hearing would have been before a different judge. See STRICKLAND, 104 S.CT.
2052 (1984). The court of appeals erroneously concluded that this
conduct by Judge Carroll only "expressed exasperation" with Petitioner. See MEMORANDUM OPINION pg.2. By reaching this
conclusion the court of appeals has dismissed Petitioner's claim on the merits of a pro se brief.
CONCLUSION
The above issue, as do the others, only require that there
be an "arguable bases for appeal." See BLEDSOE, 178 SW 3d at 824. It appears that the court of appeals has lost sight of this fact
while issuing its memorandum opinion. The fact is that there are
thousands of memorandum opinions issued each years from appeals
that were briefed by skilled counsel. As is known to this Court
18 a memorandum opinion is based upon well established law. See
BLACK'S LAW DICTIONARY 9TH Ed. 2009. However, thousands of other defendants are granted the opportunity to have these appeals
prepared and argued on the merits by skilled counsel. At the very
least, the foregoing should have been included in counsel's ANDERS
brief and explained as to why these issues are not meritoreous.
For this reason, this case should be remanded to the trial court
for appointment of new counsel for the purpose of filing a proper
ANDERS brief or to file a merits brief on these issues or any other issues identified by this Court. See IN RE SCHULMAN, 252
SW 3d at 409, and ANDERS 386 U.S. at 744.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this
Court grant discretionary review.
Respectfully Submitted,
'*£- Ernest Benl Mclntyre 202 Avenue F, Apt.#2 Moody, Tx. 76557 (254) 853-9146
APPELLANT, PETITIONER PRO SE
19 CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing was
served on each party as indicated below on this 6th day of
January, 2015, via U.S. mail, postage pre-paid.
Bob Odom Tim Copeland Asst.Dist.Attorney Attorney at Law P.O. Box 540 930 S. Bell Blvd.,Ste.408 Belton, Tx. 76513 Cedar Park, Tx. 78613
State Prosecuting Attorney P.O. Box 12405 Austin, Tx. 78711
*a£. Ernest Benl Mclntyre
20 EXHIBIT A
EXHIBIT A
MEMORANDUM OPINION
EXHIBIT A TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00508-CR
Ernest Benl Mclntyre, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 66893, HONORABLE JOE CARROLL, JUDGE PRESIDING
Ernest Benl Mclntyre pleaded guilty to possession of child pornography. See
Tex. Penal Code § 43.26. After a non-jury punishment hearing, the trial court assessed a sentence
of nine years in prison.
Mclntyre's court-appointed appellate attorney has filed a motion to withdraw
supported by a brief concluding that this appeal is frivolous and without merit. The brief meets the
requirements of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional
evaluation of the recorddemonstrating whythere are no arguable grounds to be advanced. See id.;
see alsoPenson v. Ohio, 488U.S. 75,80 (1988); High v. State, 573S.W.2d 807,811-13 (Tex. Crim.
App. 1978). Mclntyre's counsel sent a copy of the briefto Mclntyre andadvised him of hisright to
examine the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744.
£Yj%Hi£/7' S? Mclntyre has filed a pro se briefin which he raises four issues that he contends merit
furtherstudyby new appellatecounsel. Threeofthe complaintsrelate to photographsofa computer
on which pornographic imageswere found—photos that Mclntyre contends are exculpatorybecause
they raise the possibility that he unwittingly acquired the illegal images when he bought used disk
drives to install as he built the computer. He argues (1) that the State violated the Brady rule by
withholding favorable evidence until after his guilty plea, (2) that the State's failure to produce
photos of the computer before his guilty plea rendered his plea unknowing and involuntary, and
(3) that his trial counselwas ineffectivefor failingto file a motion either to withdrawhis guiltyplea
or new trial once these photos were revealed. His fourth claim is that his counsel was ineffective
in failing to file a motion to recuse the trial judge as biased because he expressed exasperation
with Mclntyre.
We conclude, based on the record before us, that Mclntyre has not shown meritorious
grounds that could be substantiated with new appellate counsel. He has not shown that new
counsel could present a meritorious argument that the photos are favorable to him. Further, at the
punishment phase—six weeks after seeing the photos of the computer and after the photos of
the computer were admitted into evidence—Mclntyre admitted his guilt, saying "I'm accepting
responsibility. I actually take full responsibility for this even though it was the cocaine that caused
this. But I do accept—I did this. I went to those sites. I clicked on those buttons and it was
on my computer." This is inconsistent with his claim in his pro se brief that, had he known of the
photos of the computers sooner, he would have argued that the disk drives were loaded with
the illegal images before he bought them and without his knowledge. The record also does not demonstrate a plausible argument that his counsel was ineffective for failing to file a motion to
withdraw his guilty plea, for a new trial, or to recuse the trial judge.
We have reviewed the record and find no reversible error. See Garner v. State,
300 S.W.3d 763, 766 (Tex. Crim. App. 2009). We agree with counsel that this appeal is frivolous,
affirm the judgment of conviction, and grant counsel's motion to withdraw.
Jeff Rose, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed
Filed: June 4, 2014
Do Not Publish TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JUNE 4,2014
APPEAL FROM 27TH DISTRICT COURT OF BELL COUNTY BEFORE CHIEF JUSTICE JONES, JUSTICES ROSE AND GOODWIN AFFIRMED -- OPINION BY JUSTICE ROSE
This is an appeal from the judgment of conviction entered by the trial court. Having reviewed
the record and the parties' arguments, the Court holds that there was no reversible error in the
trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of
conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs is
made. EXHIBIT B
EXHIBIT B
PHOTOS OF SUSPECT COMPUTER
EXHIBIT B H M CQ H CD X W
;•= -T yv-.r '
ft
& .
/? V
\
V-*
, ;, -• • • . », s » '
# EXHIBIT C
EXHIBIT C
PHOTOS OF SUSPECT MONITOR
EXHIBIT C y
CQ M
X W
1} H M pa M
-3g* <^_ EXHIBIT D
EXHIBIT D
PHOTOS OF MASS ARRAY OF PARTS
EXHIBIT D H
a H M pa
in x w ERNEST BENL MCINTYRE 202 Avenue F, Apt.#2 Moody, Tx. 76557 (254) 853-9146
Court of Criminal Appeals January 6, 2015 Abel Acosta, Clerk P.O. Box 12308 Austin, Tx. 78711-2308
RE: MCINTYRE V. STATE, P.D.R. NO. PD-1486-14
Dear Clerk,
Enclosed please find Appellant's pro se petition for discretionary review to be filed for record in the above referenced cause and brought to the attention of the Court. Thank you.
Sincerely,
Ernest Benl Mclntyr'e / Appellant, Petitioner Pro Se
"33S JAM-08 2015
Abe! Acosta, Clerk c. File