Powell, George Robert, Iii

• Court: Court of Appeals of Texas
• Decided: December 31, 2014
• Docket: PD-0667-14
• Status: Published

Opinion

Cause No . PD-D667-14

EX PARTE § IN THE § § COURT OF CRIMINAL APPEALS § GEORGE ROBERT POWELL, III § AUSTIN, TEXAS HfrOBV^D M r ''•'•'OFCRiiW

MOTION FOR REHEARING DEC 31 2014

NOW COMES George Robert Powell, III, Petitioner, pro se, and

files this Motion for Rehearing, requesting this Honorable Cflurt

to reconsider the denial of his Petition for Discretionary Review,

denied on November 19, 2014. In support of this Motion, Petitioner

would show the following:

The case at bar focuses on the mechanics and implimentation

of Texas Rules of Evidence Rule 614, commonly called the "Witness

Rule" or "the Rule", the Texas Code of Criminal Procedure Article

36.03 (Invocation of Rule) and the Texas Code of Criminal Procedure

Article 36.06 (Instructed by the Court).

Petitioner has asserted that proper implimentation of these

procedures, and for a witness to be placed under the Rule, three

separate and distinct actions have to occur:

1) Invocation of the Rule (Tx.C.C.P. §36.03(a))

2) Admonishment of each witness by the court (Tx.C.C.P. §36.03;('. e))

3) Instruction by the court (Tx.C.C.P. §36.06)

Page 1 of 3 Petitioner contends that two vital functions must be performed

solely by the Trial Court: admonishment and instruction. Without

proper admonishment, a witness is not subject to the contempt

power of the court. Tx.C.C.P. §36.03(e), §36.06. Similarly,

it is only the Trial Court that can instruct a witness as to

who the witness can converse with, and about what. Id.

In the case at bar, the State claimed at trial that a violation

of the Rule had occured. The first reaction of the Trial Court

was that a violation did not occur, because the witnesses were

not instructed and admonished by the Court. The State persisted,

despite clear laws, and after an off-record, in chambers discussion

(which now cannot be reviewed, violating Petitioner's right to

due process), the Trial Court issues an "instruction" to the

jury, claiming the defenses only two witnesses violated the Rule,

when according to the Trial Court's own admission, they had not.

Petitioner contends that this was an erroneous impression

by the Trial Court of impropriety on the part of the Defense is

witness, and amounted to an impermissible comment on the credibility

of the Defense's witnesses by the Trial Court.

This Honorable Court has not given clear directions to the

lower courts regarding this issue. When is a witness properly

placed under the Rule? If a trialcourt indicates that a witness

has violated a rule of court, when they had not, is that an

impermissible comment on the credibility of that witness? Is

Page 2 of 3 the three step process argued by Petitioner as a matter of law,

formalized by an opinion from this Honorable Court? Petitioner

asserts that no such clear direction exists.

, Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that this Honorable Court GRANT this Motion for Rehearing and

reconsider his Petition for Discretionary Review.

Respectfully submitted,

George Robert Powell, III Petitioner, pro se

Inmate's Unsworn Declaration

I, George Robert Powell, III, TDCJ #161266B, being presently

incarcerated in the Huntsville Unit of the Texas Department of

Criminal Justice Institutional Division in Walker County, Texas

verify and declare under penalty of perjury that the foregoing

statements are true and correct.

Executed this, the '?*" day of h^CJ^h^^ 201^- George Robert Powell, III TDC3 #1612668

George Robert Powell, III, TDC3 #1612668 Huntsville Unit 815 T2th Street Huntsville, TX 77342

Page 3 of 3 Certificate of Service

I certify that a true and correct copy of Petitioner's Motion for Rehearing was mailed to:

Mr. & Mrs. Paul McWilliams, Assistant District Attorneys Bell County District Attorneys 'Office P . 0 . Box 540 Belton, TX 76513

via U.S.P.S. First Class Mail.

Executed this, the '' day of lc)l£t»-KUsS^ , 2014.

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