Scott, Johnny Calvin

• Court: Court of Appeals of Texas
• Decided: July 10, 2015
• Docket: PD-0850-15
• Status: Published

Opinion

PD-0850-15 IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS

EX PARTE SCOTT § RECEIVED M ^ ,i, § case no. COURT OF CRIMINAL APPEALS FILED IN § COURT OF CRIMINAL APPEALS . JUL 10 2015 JUL 10 2015 MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW Abel Acosta, Clerk Abel Acosta, Clerk COMES NOW JOHNNY QALVIN SCOTT (-HEREAFTER "PETITIONER")... MOVING FOR EXTENSION OF TIME TO FILE HIS PETITION FOR DISCRETIONARY REVIEW...AND WOULD SHOW AS FOLLOWS...

I

PETITIONER PLEADED NOT GUILTY AND MAINTAINS HIS INNOCENCE

TO THIS DAY.PETITION MOVED FOR NEW TRIAL ON THE GROUNDS THAT A SELF-

DEFENSE INSTRUCTION JURY OHARGE WAS DENIED IN OBVIOUS ERROR BY THE TRIAL COURT. . -LEAVING PETITIONER WITHOUT HIS DEFENSE CAUSING HIS HARM, SEE:ALMANZA V. STATE,686 SW.2d 157 (TEX .CRIM .APP .1985') ... AND. .. REQUIRING A NEW TRIAL.TEXAS COURTS HAVE CONSISTENTLY HELD THAT AN ACCUSED IS ENTITLED TO A JURY INSTRUCTION ON EVERY DEFENSIVE ISSUE RAISED BY THE EVIDENCE...

HAYES V. STATE,728 SW.2d 804,807-08 (TEX.CRIM.APP. 1987) MOON V. STATE,607 SW. 2d 569 (TEX.CRIM.APP.1980) GARCIA V., STATE ,605 SW.2d 565,566 (TEX .CRIM .APP .1980) JOHNSON V. STATE,571 SW.2d 170,173 (TEX.CRIM.APP.1978) WARREN V. STATE,565 SW.2d 931,933-34 (TEX.CRIM.APP 1978) ESPARZA V. STATE, 520 SW.2d 891,892 (TEX .CRIM. APP .1979)/

IT MATTERS NOT WHETHER THE EVIDENCE IS STRONG OR WEAK...OR

WHETHER THE TRIAL COURT BELIEVES IT OR NOT...IF THE EVIDENCE WAS

PRESENT IN THE TRIAL,THE PETITIONER IS ENTITLED TO HAVE IT SUBMITTED

TO THE JURY FOR ITS DECISION...

SHAW V. STATE,510 SW.2d 926 (TEX.CRIM.APP.1974) CARTER V. STATE,515 SW.2d 668 (TEX.CRIM.APP. 1974) SEE ALSO: 'HAYES' and 'WARREN' supra PETITIONER DID NOT TESTIFY... YET AND STILL HIS (3) HOUR INTERROGATION (BY POLICE DETECTIVES) VIDEO WAS PLAYED FOR THIS JURY. THIS VIDEO DISC WAS EDITTED AND REDACTED BY THE STATE TO MAKE THE

(1) PETITIONER LOOK GUILTY.THE POLICE REPEATEDLY MAKE DAMAGING AND

CONCLUSORY ALLEGATIONS WITHOUT FACTUAL BASIS.THE PETITIONER'S COUNSEL

REPEATEDLY OBJECTED AS POLICE/PROSECUTION VIOLATED TEXAS RULES OF EVIDENCE 801 and 802...STATEMENTS WERE BLATANT HEARSAY AND WERE IN

ADMISSIBLE. ACCORDING TO THOSE RULES,THE STATEMENTS WERE JUST THE

UNBRIDLED OPINIONS OF THE POLICE RELATING TO WHAT EVIDENCE THEY

EITHER DID OR DID NOT HAVE WHAT THEY THOUGHT IT SHOWED... WHETHER

THEY THOUGHT THAT THE PETITIONER WAS BEING TRUTHFUL (OR NOT)...AND

EVEN STOOPED TO CALLING HIM. .."A COLD-BLOODED KILLER... WHICH SEVERELY

PREJUDICED THE JURY AND HARMED THIS PETITIONER.

POLICE..."WITNESS IS NOT COMPETENT TO EXPRESS AN OPINION AS

TO TRUTH OR FALSITY OF OTHER. TESTIMONY IN THE CASE.."

BLACK V. STATE,634 SW.2d 356,357-58 (TEX.APP^DALLAS 1982)

..."OFFICERS MAY NOT TESTIFY THAT [THEYJ DID NOT BELIEVE THE EXPLANATION THE ACCUSED GAVE,,,"

TAYLOR V. STATE,774 SW.2d 31-34 (TX.APP.HOUS.14th Dist.1989)

THE OPINIONS OF THE OFFICERS ARE INADMISSIBLE EVEN IF THEY ARE

NOT HEARSAY. BUT...IN THIS CASE...THEIR STATEMENTS WERE CLEARLY .

HEARSAY OPINIONS AND ENTIRELY INADMISSIBLE.

SAID STATEMENTS..-FOR THREE (3) HOURS DRILLED INTO THE JURORS HEADS AND HEARTS PREJUDICED AND TAINTED THAT JURY.THE OFFICERS KEPT

INTIMATING THAT THEY HAD CONCLUSIVE EVIDENCE AGAINST THE PETITIONER

...THAT HE WAS A LIAR...AND A "COLD BLOODED KILLER" ! THEREFORE...

ADMISSION OF THESE STATEMENTS WAS AN ABUSE OF DISCRETION.

.."THE TEST FOR ABUSE OF DISCRETION IS NOT WHETHER IN THE OPINION OF THE REVIEWING COURT THE FACTS PRESENT AN APPROPRIATE CASE FOR THE TRIAL COURT'S ACTION...RATHER...IT IS A QUESTION OF WHETHER THE COURT ACTED WITHOUT REFERENCE TO ANY GUIDING RULES AND PRINCIPLES.ANOTHER WAY OF STATING THE TEST IS WHETHER THE ACT WAS ARBITRARY OR UNREASONABLE..."

MONTGOMERY V. STATE, 810 SW.2d 372,380 (TEX. CRIM. APP .1990') .

AS SUCH THE PETITIONER WAS DEPRIVED OF A FAIR TRIAL AND WAS

ENTITLED TO A NEW TRIAL.

II

THIS PETITIONER IS INDIGENT AND CANNOT PURCHASE A COPY OF

THE TRIAL RECORDS,STATEMENT OF FACTS(REPORTER'S RECORD) NOR THE CLERK'S TRANSCRIPTS.HE HAS WRITTEN TO THE TRIAL COURT MOVING FOR A COPY OF ALL STATED HEREIN... THIS WILL TAKE TIME TO BE HEARD AND THEN

SECURED BY PETITIONER.

(2) Ill

PETITIONER HAS ALSO WRITTEN TO HIS APPEAL COUNSEL ASKING FOR

HIS ASSISTANCE IN THE MATTER TO SECURE SAID RECORD.

IV

WITHOUT THESE RECORDS THE COURT KNOWS THAT THIS INDIGENT

PETITIONER CANNOT POSSIBLY RESEARCH AND PERFECT HIS PETITION: IFOR

(PROPER) DISCRETIONARY REVIEW. WITHOUT THE RECORDS...WHICH IS PLAIN LY AVAILABLE TO ATTORNEYS WITHOUT QUESTION... THIS INDIGENT PETITION

ER CANNOT ACT AS HIS OWN ATTORNEY...PRO SE.! THIS IS A DISTINCT AND

UNFAIR DISADVANTAGE.

V

THIS IS A CAPITAL LIFE WITHOUT POSSIBILITY OF PAROLE CASE.

THE PETITIONER IS A YOUNG MAN OF TWENTY-THREE YEARS OF AGE.THERE

ARE REPEATED REFERENCES IN THE APPELLANT'S BRIEF...AND IN STATE'S

APPELLEE'S BRIEF...AND IN THE APPEAL'S COURT'S MEMORANDUM OPINION TO

THE COURT REPORTER'S RECORD.THE PETITIONER MUST HAVE THE RECORD IN

HIS HANDS TO PROPERLY CITE AND REFUTE THE ISSUESMPRESENTED BY THE

STATE AND THE APPEALS COURT.OTHERWISE IT IS A FUNDAMENTAL FAIRNESS.

ISSUE AND THAT IS WHAT PLACES HIM AT THE DISTINCT DISADVANTAGE AS THE

UNBRIDALED STATEMENTS OF THESE INTERROGATING OFFICERS HAD SUBSTANTIAL

AND INJURIOUS EFFECT AND INFLUENCE IN DETERMINING THIS JURY'S VERDICT.

KING V. STATE, 953 SW.2d 266,271 ti>TEX .CRIM. APP .1997 ) AND "THE RELEVANCE OF STATEMENTS BY INTERROGATING OFFICERS HINGES ON DEFENDANT'S RESPONSE RATHER THAN ON THE STATE

MENTS CONTENT..."

KIRK V. STATE, 199 SW.3d 467 ,473-79(>TX. APP .SAN ANTON.) FINCHER V. STATE,No.04-12-00489 CR 2013 WL 5429928 at *2

HUMPHREY V. STATE,No.01-08-00820-CR 2012 WL 4739925 at *2

(TX.APP.HOUS.lst DIST.). HEARSAY IS A STATEMENT,OTHER THAN ONE MADE BY THE DECLARANT

WHILE TESTIFYING AT TRIAL OFFERED TO PROVE THE TRUTH OF THE MATTER

ASSERTED. . 'KIRK' at 478-79 and WOOD V. STATE ,No .01'-13-00845-CR

2014 WL5780273 at *5 TX.APP.HOUS.lst.

HERE,THE PETITIONER MADE NO RESPONSE IN THE LAST HOUR OF THAT

TAPED INTERROGATION.SO THE JURY WAS SUBJECTED TO THE REPEATED AND CON

TINUED HEARSAY OPINIONS OF A FRUSTRATED OFFICER SPOUTING AN..."ENDLESS

LINE OF INUENDO PARADING IT IN FRONT OF THE JURY MEMBERS.THIS "DRILL

ING" STACCOTO tURINGLY HYPNOTIZED AN INDELIBLE IMPRINT INTO THE MINDS

OF THE JURY PREJUDICING THEM AGAINST THIS PETITIONER.

(3) THESE OFFICER'S STATEMENTS "MISREPRESENT THE EVIDENCE" AND AS THEY ARE ON VIDEO ARE NOT SUBJECT TO STANDARD CROSS_EXAMINATION NOR IMPEACHMENT BY THE COUNSEL FOR THEIDEFENSE.THE APPEALS COURT EVEN ADMITS THAT THE DETECTIVE:',S STATEMENTS ARE INACCURATE (LIES)... (i.e. THAT..."ONLY [PETITIONER'S] DNA WAS UNDER [VICTIM'S] NAILS" SEE: PAGE 11 OF MEMORANDUM OPINION}

THIS IS MORE FALSEHOOD DESIGNED TO SWAY THE JURY TO BELIEVE "GUILT" WHERE THERE IS NONE.

PRAYER

WHEREFORE PREMISES CONSIDERED...THIS PETITIONER SEEKS A (90) DAY EXTENSION OF TIME IN WHICH TO SECURE THE RECORD...AND TO DO THE RESEARCH OF THAT RECORD AND TO FORMULATE A PROPER PETITION FOR DISCRETIONARY REVIEW WHICH IS WORTHY OF THIS HONORABLE COURT'S DE NOVO CONSIDERATION.SUCH IS REQUIRED IN THE INTERESTS OF JUSTICE AND FUNDA MENTAL FAIRNESS. NO REASONABLE JURIST WOULD ASK ANY LESS WERE THEY IN THE PLACE OF THIS PETITIONER.

ALL OF THE ABOVE IS TRUE AND CORRECT TO THE BEST OF THIS PETITIONER'S KNOWLEDGE AND RECOLLECTION... SWORN UNDER PENALTY OF PERJURY. ..PURSUANT TO 28U.S.C. § 1746 ON THIsP-^ DAY OF JUNE 2015.. "; RESPECTFULLY TENDERED £jZUyti'yU^rfJ??^^ (/J0HNN¥'CALVIN SCOTT TDCJ No. 1927796

W.P. CLEMENTS UNIT

9601 SPUR 591

AMARILLO,TEXAS 79107

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