Skief, Tiwian Laquinn

Opinion

6S5-/5 NO. PD-0655-15 FILED IN IN THE COURT OF CRIMINAL APPEALS ORieiNAL COURT OF CRIMINAL APPEALS

OF TEXAS AT AUSTIN Abel Acosta, Cierk

TIWIAN LAQUINN SKIEF PETITIONER

THE STATE OF TEXAS RESPONDANT

PETITIONER'S MOTION FOR REHEARING

On Rehearing from a refusal of his Petition, for Discretionary

Review in No. PD-0655-15 on November 4, 2015.

RECEIVED IN Tiwian LaQuinn Skief COURTOF CRIMINAL APPEALS TDCJ #01769917

Coffield unit

NOV 23 2015 2661 FM 2054

Tenn. Colony, Tx. 75884

Abel Aeosta, Clerk Pro se.

NO. PD-0655-15

TIWIAN LAQUINN SKIEF § IN THE COURT OF CRIMINAL §

V. § APPEALS OF TEXAS AT §

THE STATE OF TEXAS § AUSTIN.

MOTION FOR REHEARING

COMES NOW Tiwian Skief, #01769917, Petitioner in the above

-styled and -numbered cause and files his motion for rehearing, and shows this Honorable Court GOOD CAUSE to GRANT this motion

as follows:

PERTAINING TO QUESTION NUMBER ONE

Within the Petitioner's question number one, the issue boils

down to this question here: Is there evidence (facts) that shows

the Petitioner sought an explanation from or discussion with the

Complainant concerning their differences? No! The Petitioner

truly searched the entire record, and has found out that not one

witness testified to the erroneous conclusion that "the Peti

tioner sought out and/or approached complainant." In other words, there is no evidence of the Petitioner seeking out for and/or

approached Complainant.

Their is one element in common when this Honorable Court

looks in iLee v. State [259 S.W.3d 785 (Tex.App. --Houston, 1st Dist, 2007)], Fink v. State [97 S.W.3d 739 (Tex.App. --Austin, 2003)], and Bumguardner v. State [963 S.W.2d 171 (Tex.App. --Waco 1998)]. Truly, this one element is that Lee, Fink, and Bumguarder all sought out for and/or approaced complainant in their cases. The Petitioner lacks this one main element. Therefore, the page 1

Petitioner argues that there is a substantial circumstance within the Petitioner's case that is in need to be re-addressed by this

Honorable Court. Finally, this Honorable Court should grant the Petitioner's rehearing.

PERTAINING TO QUESTION NUMBER TWO

Since the Petitioner argees that Riketta's statement to ~ Barbara Castro was an excited utterence, this Honorable Court

must look to the attendant circumstances and assess the likeli

hood that a reasoanble person would have either retained or re gained the capacity to make a testimonial statement at the time of the utterance. See U.S. v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005); Wall v. State, 184 S.W.3d 730, 742. (Tex.Crim.App. 2006).

The Fifth District Court of Appeals simply did not do this.

Therefore, This Honorable Court should rehear this question at hand. Furthermore, Riketta Johnson, being unde rhte stress of the phone call, was not in immediate danger and Riketta knew, and comprehended the larger significance of her words. In basic terms the record fairly supports her statements to Castro, and the fact that the statement also qualifies as an excited utter

ance, will not alter Riketta's testimonial nature!

Finally, the Fifth District Court of Appeals failed to pro perly use the two-pronged test set out in Wall v. State becuase they are bound to. id. 184 S.W.3d 730, 742-43 (Tex.Crim.App. 2006). The Petitioner implores this Honorable Court to re hear this Question for review at hand, and grant this motion for rehearing.

page 2

PERTAINING TO QUESTION NUMBER THREE

The Petitioner only seeks for an answer for the following

two questions: (1) Did the United States Supreme Court intend

for the State Courts to limit (or restrict) the term, or defi nition of "Testimonial" to solely relate a statement, declaration,

or affirmation to law inforcement based agencies only? And (2) Although the Texarkana District. Court of Appeals in McCarty v.

State, provided some classic examples held in Crawford, does

the Classic examples give the right for state court's to limit the testimonial analysis to law enforecement based agencies

only? id. 227 S.W.3d 415, 418 (Tex.App.--Texarana, 2007).

The Petitioner contends that the State should not be allowed

to limit the definition of Testimonial to law enforcement based

agencies only. When the courts in Texas have adopted the same

view set out in McCarty, Axiomly, this Court never cited or

relied in any authority while taking this upon themselves to li

mit (or restrict) the Crawford's confrontational definition of

the term Testimonial, id. 227 S.W.3d at 418. Again and finally,

the Petitioner believes, that the United States Supreme Court did

not intend for their term, or definition to be limited or restri^-

cted to law enforcement based agencies only! Therfore, the Peti

tioner firmly stands on the fact that Riketta's statement to a manager in the strip club environment fits into the definition of testimonial. The Petitioner implores this Honorable Court to

rehear this question for review and grant this motion for rehear

ing at hand.

page 3

PRAYER FOR RELIEF

The Petitioner prays that this Honorable Court will grant

rehearing, and request for briefs on the merits-, or as rendered,

Tiwian Laquihrf Skiei #01769917-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.

INMATE DECLARATION

I, Tiwian Laquinn Skief, #01769917, being incarcerated in

the Coffield unit in Anderson County, Texas, delcares that the

foregoing is true and correct under the penalty of perjury.

Executed this day of November.17, 2015.

Tiwian 'iwian LaqiHrtfn

LaqiHrnn Skj

Sk

#01769917-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.

PROOF OF MAILING

I, Tiwian Laquinn Skief, #01769917, have; placed this motion

for rehearing in the internal mailing system of the Coffield

unit in Anderson County, Texas, on November 17, 2015. This is

true and correct under the penalty of perjury. Executed this day

of November 17, 2015.

Tiwian Laquinn^Skief (y #01769917-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.

page 4

NO. PD-0655-15

TIWIAN LAQUINN SKIEF § IN THE COURT OF CRIMINAL §

V. § APPEALS OE TEXAS AT §

THE STATE OF TEXAS § AUSTIN.

CERTIFICATION OF GOOD FAITH

COMES NOW, Tiwian; ILaquinn Skief, #01769917, certifies that

the foregoing motion for rehearing is done in good faith and not for any kind of delay becuase the foregoing motion is so grounded

in the law, it requires for this Honorable Court to rehear Peti

tioner's case.

This is true and correct under the penalty of perjury. Exe

cuted on this day of November 17, 2015.

Tiwian Laqi #01769917-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.

Clerk of the Court of Criminal Appeals at Austin P.O. Box 12308, Capitol Station, Austin, Texas 78711 November 17, 2015

RE: Skief, Tiawian Laquinn; PD-0655-15;

COA No. 05-12-00223-CR; tr.Ct.No. F10-35936-L

Dear clerk of the Court,

Enclosed is a motion for rehearing on the above styled and numbered cause. The Court of Criminal Appeals granted me the ability to file a single copy on May 29, 2015. Please make and provide the necessary copies to go to the required parties at hkrid.

Thank you for all your time and help within this matter!

Respectfully

Tiwian Laquinn #01769917-Coffield 2661 FM 2054 Tenn.Colony, Tx. 75884 Pro se.

Cc: file

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Clerk of the Court of

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