Willie Lee Ockletree v. State

Opinion

July 24, 2015 wILijlJS LEE OCKLETREE, #1906981 ALLxiE^ UNIT/TDCJ-CID 2101 P. Mo 369 Na IOWA PARK, TEXAS 763^7 JULY 13, 2015

HONORABLE JUSTICES PRESSING, In The COURT OP APPEALS por The THIRJ SUPREME JUDICIAL DISTRICT OP TEXAS At Austin attnt Jeffrey Do Kyles^ Glerfc Po 0. BOX 12547 AUSTIN., TE^CAS 78711

In Ret Appeal Cto No* 03-14-00 04 6-CR WZLLIE LEE OCKLETRKE -y- THE STATE OP TEXAS CTPELLANT*S COJflaXNJaLj LETTER MM ELEAji^V *£C£/ved TO Wl'l't—APPELLANTS MOTION TO SUSPENj iD'!£ES:

APPELLANT'S BRiEP ON APPEAL:—Mu MUT10N~"HHl ML 24 2015 Ml m\l> ALL AVAiLAbLE HMEIfr, BELIEF, BBkjffl&g ANJ REMONSTRANCE AUTHOBlflRj Bft (MlS fiONOft&BIJE UDURT OP APPEALS JURISDICTION AND AUTHORITY AS AUTHOi-UaED ill AdflOHiJ&Mai WiTH THE UNi'i'E^ STAi'ES CONSTITUTION adj ThE STaVE OP TE.JiS— CONSTiTUTiON AN J ThEiR CiON]rt)ifiliJN(l LAWS...—

Dear Honorable Justices Presiding in the Court Of Appeals for the Third Supreme Judicial District Of Tgxas at Austin:

GOMES NOW, WILLIE LEE OCKLETREEf #1906981, an Offender, who is confined in Texas Department of CRiminal Justice- Correctional institutional Division (TDCJ-CjO») , who is the Appellant in the above styled and numbered cause, who does make and file this APPELL^T*S COMBINED LETTER PORM PLEAjINGS, TO WlTt APPELLANTS MOTION TO Site- PEN^. RULES* APPELLANTS BRIEP ON APPEAL; AN_j MOTION POR MY Mj ALL AVAILABLE REMEDY, RELIEP, REPRESS, AN^> REMONSTRAN ,E AUTHORISED BY THIS HONORABLE COURT OP APPEAL'S JURISDICTION ANU AUTHORITY AS AUTHOR!^ IN ACCORjANGB WITH THE UNITED STATES CONSTITUTION Mu THE STATE OP TEXAS CONSTITUTION Mj THEIR OONPORBfl. NQ LAWS and which is declared, stated, verified, acknowledged, confirmed, and pled under the penalty of perjury of the LAWS of the UNITED STATES and THE STATE OP TEXAS to be true and correct in accordance with and pursuant to the pro-

visions of 28 Uo s<» Co sec» 1746 and the Texas Civil Practice and Remedies Code, Sections 132a001-132o003 for which my signature and the date of its execution does confirm the foregoing and pled con tents of this pleading to be true and correct as fallows* I.

JURISDICTION.

The Appellant maintains and avers this Honorable Court Of Ap peals has jurisdiction and authority in accordance with and pursuant to The Texas Constitution,, Article V» Section 6 and the relevant applicable provisions of the Texas government Code governoring the Court Of Appeals for the Third Supreme Judicial District Of Texas at Austin. Por the Appellant*s timely and proper NOTj.CE OP APPEAL purports ta give this Honorable Court Of Appeals jurisdiction and authority in this matter.

However, the Appellant would ask that this Honorable Court Of Appeal, to: take judicial notice of the Reporters Record Vol* 13, Page 41 at line 10, the Appellant in his f*pro sew capacity did orally move the court for a new trial by and through entry an page 41 Lines 10 through 25 as continued on Page 42 Lines 1 through 16o Por in the instant case this Honorable COURT OP APPEALS must determine if this cause is properly before the Honorable Court Of Appeals where the trial court and appointed court apointed attorney did not c-on— fer with the dismissed trial attorney and/or the Appellant to make known i f in fact; sufficent error of a constitutional dimension and magnitude existed to hold hearing and preserve error for appeal.1 As the record is devoid of any ruling r-nd determination made by the trial court on the Appellant's oral motion for new tr:.al and no hearing was ever held and conducted© Still further, where the Appellant is proceeding '"Pro Se"> after the court appointed attorney on appeal did make an_i file his brief in accordance and pursuant to the ruling and opinion of the United Spates Supreme Court in the case of Anders —v- California» 386 He. S. 738» 87 S, Ct» 1396 (1967) ausing the Appellant to invoke this Honorable Court Of Appeals jurisdiction and authority pursu ant and in accordance with thr ruling and opinion of the United States Supreme Court in the case of Haines -v- Kerner. 4u4 U.S. 51Q

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(1972)» For the APPELLANT declares and pleads that he is proceeding without the adv.se and/or the assistance of one who has been formal ly trained in the "art" and "science" of the field of law*

IX«

APPELLANT'S MOTION POR THE SUSPENSION OP THE RULES COMES NOW, the Appellant, who does move this Honorable Court of Appeals to Suspend he Rules in accordance with and pursuant to to Texas Rules of Appellate Procedure, Rule 2 which expressly and impli itedly authorise this Honorable Court of Appeals to suspend the rules as stated in Rale 2 that reads as follows* *»»»0n a party's motion or on its own initiative an appel late court may—to expedite a decision or for other good cause—suspend a rule's operation In a particular case and order a different procedure;? but ftfeao a court must not construe this rule to suspend any provis on in the Code of Criminal Procedure or to alter the t me for perfecting an appeal in a civil case*.*.* Por the Appellant does move aba seek to have the relevant and applic able ruleb .;-;ovemori.^ \ -".O.- •:c:..' oi pleadings,, form of briefs, and the form of motions; as relevant to the requirements for all when being made, filed and pled before this Honorable OURT OP APPEALS as being hereinafter PRAYED foro, WHEREPORE, PREMISES CONSlJEREJ, the Appellant PRAYS that this HONORABLE Court of Appeals does suspend any and all rules to allow this "Pro Se" Appellant to proceed in the instant cause byand through this APPELLANT*S COMBINED LETT _R FORM PLEADING-«.

AN.U FURTHER, the Appellant Prays that this Honorable Jourt of Appeals be granted any and all other remedy, redress, relief, and remaastrance as authorized by law and equity* III*

APPELLANT'S BRlEF ON APPEAL A*

IJENTITT OF THE PARTIES

APPELLANT! 1ILLIE LEE OCKLBTREE TBCJ_CH) #1906981 ALLRED UNIT 2101 Fo Mo 369 No IOWA PARK, TEXAS' 76367 TRIAL COUNSEL FOR APPELLANT* MR* JEFFREY Be PARKER 312 Eo CENTRAL AVE.

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P. QDo BOA 660 HELTON, TEXAS 76513 APPELLATE COUNSEL FOR APPELLANT* Gary E« Pieast LAV/ OFFICE OP GARY PRUST 1607 Nueces S'to Austin, TE^S 76513 TRIAL COUNSEL FOR APPELLEE* SHELLY BAM STRMPLE STEPHANIE NEWELL 1201 HUET HE>. P. Oo BOX 540 BELTON, TE7AS 76513 APPELLATE COUNSEL FOR APPELLEE* Bo"b Odom 1201 Huey Rd« Po 0, Box 540 BELTON, TEj&S 76513

STATEMENT REGARJING ORAL ARGUMENT The Appellant, a "Pro. .^e" Litigant, who is currently confined in Texas Department of Criminal Justice- Correctional Institutional Diyision. at the Allred Unit, 2101 F. M« 369! N*,, Iowa fark, Texas 76367o For all current and existing law does not mandate and/or require this Honorable Court of Appeals to issue 'any writ to bring the Appellant before the Court for arguement,'

V*

STATEMENT OP THE CASE

Appellant was Indicted in two gaunt indictment alleging the.

offenses of injury to a disabled person and aggravated assault wmh a deadly weapon with an enhan ement paragraph invoking Texas Penal Code, Section 12o42(d) allowing for punishment raEDge of twenty-five years to ninety-nine years or life imprisonment, if the allegations are found to be true upon a conviction of the primary offensea.^o For the Appellant chose a trial by jury and made and entered his plea of "not guilty" to the allegation of aggravated assault after the State chose to abandon the injury to a disabled person* As the Appellant was found guilty of the primary offense and prior convic tions having been found to be true by the Jury who imposed punishment at seventy-five years confinement* A verbal Motion. For New Trial was made and entered in open court (RR.Pages 41, Line 10 through d5i 42, Lines 1 through 1.6, Volume 13) o Por the record is absent

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of any ruling and/or hearing on the Appellant's verbal Motion For New Trialo As the Notice Of Appeal was made an^ filea by the Ap pellant's court appointed attorney who took no action on the Ap pellant's verbal MOT,.ON POR NEW TRIAL*

VTo

STATEMENT OF PROCEDURAL HISTORX The Appellant maintains thath&he rocord shows that an indict ment was returnea by the Grand Jury of Bell County for the 426th Judicial District Court on or about May 22, 2013 all eg ng two(2) counts, to witj Injury To a Disabled Person and Aggravated Assault w th a Deadly Weapon with allegations of prbr convictions being made to invoke punishment pursuant to Texas Penal Code, Section 12»42(d)« It is further shown within the records that the Appellant was init ally represented by Attorney Randall Scott Magee, who appeared in open court on or about July 26th, 2013 to establish in the record tha# J strict Attorney Shelly Dawn Str mple had made and advanced a ten (10) year plea bargain offer and which the Appellant had prior to his appearence in open court refused and further refused in the course of the Plea Offer Hearing* Which a subsequent hear ng and ap pear en-e by Attorney Magee was maae on or about August 19, 2013 when he appeared and pled Motion Por PR Bond that resultea in adverse ruling* As Attorney Randall Scott Magee appearea in open court one more time in the instant cause to advance a MOTION TO WITH ^RkW AS COUSEL that was docketed and heard an September 24, 2013 when the Appellant did then proceed in the case as his own attorney (Pro Se) with standby appointed cousel, namely; Attorney Jefferey David Parker* The Appellant acting as his own attorney with stanaby counsel, namely; Attorney Jeffrey David Parker did participate in hearing held on October 15, 2013 for hearing of Pretrial Motions which the Appellant had filed* Por the result of this he; r'.ng cause the Hon orable Fancy H, Jezek, Judge Presiding in the 426th Judicial Dist rict Court to appoint standby attorney to proceed as the Appellant's trial attorney; who would proceed as defense attorney in the trial on merits and all other Pretrial Proceedings helu subsequent to the $&§ October 15, 2013 proceedings* As the January 3, 2014 Pretrial Motion Proceedings Attorney Jeffrey David Parker placed into record that the Bell County District Attorney had advanced a pleabargain offer prev ously dur ng July z2f 2013 heaEing that the Appellant had then and would dur ng the pretrial hearing reject* And further, the hearing would show and document the Appellant's dissatisfaction with his attorney's representation* The Appellant's trial proceedings began on January 6,. 2014 and Attorney Jeffrey David Parker appeared as the Appellant's attorney of record where he waived opening statements ana refused and failed to embrace the "voir dire examination" with active participation of zealous manner* For this is of relevance and import where the victim as alleged in the indictment was of the White Race an_. the aecuaed/ap pellait was of the BlaGk Race* As the lack of active participation compromised preservation of error relevant to the unauthorised, uniawul , and unconstitutuional use of the capacity of employment and its authority as an Ass:stant District Attorney, namely; Honorable SHELLY STRIMPLE, who engage, in a systematic ustom an. practice of ex luding eligible jurrors from the panel* With the jwyyhaving been selected for the Appellant's tr al and hav ng been sworn n the Appellant's trial began an.. Count One of the indictment was abandonees an jproceeded to trial on Count Two that al leged aggravated assault with a deadly weapon where the State aavanced open ng arguement and Appellant's counsel reserved the right to advan e arguement prior to the Defense presenting evidence after the rest ng of the State* For the State proceeding w'.th presenting its ase by and through witness test mony and exhib ts be ng offered ana entered into evidence purporting to support the prmof of the allegat ions set forth in the indictment* And after the State re:ted there was a haaring held on recora in absence of the judge regarding the Appellant having been adviseu not to test fy as the advee of his Attorney Jeffrey David Parker was not to testify as he, Attorney Park er stated, n..*Well, if there'? —if there's any doubt, I'll tell you right now, unequivocally, c^early without any question, I am telling you that it is my professional advice you not testify in this caseo..o"' For Attorney Parker did not make or give any statement or arguement and the Appellant on record waived his right to testify believing the advice of h'.s attorney that the evidence was insufficent to find guilt beyond a reasonable doubt* The S-fcate and Defense both having rest ea the jury was removeo —6— a?

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and in recess as the State ant. the Defense wijfch the Court prepared the eharge on "guilt or innocence* The preparation of the charge was completed where the Court ordered he return of the jury and each jurror was given a copy to follow along as the charge of the court was administered to the jury* Por the Defense was allowed to present its closing arguement of which Attorney Jeffrey David Parker avered that there was evidence that the Appellant had admitted possesihg a knife an:: having thrown it away* Which the Appellant's attorney failed to .nform the jury that the Appellant had remained in custody from March 12, 2013 to the very point ana time making any avertment as having been pur portedly made to support the elements of the indictment could not ana should not be substantiated when his restraint would not allow for hjm to throw away a knife* As the itate did make and give its losing arguement of which upon completion the jury went to the jury room for deliberation* The ^e^j"^eration of the jury resulted in the "^im ell ant being found guilty as charged in the indictment* Because the AvT)ellant had chosen the jury to impose sentence, the jury was read the enhancement as set forth in the S^^g's No tice of Sn^^ncg^gflt setting forth allegations of the Appellant hav ing been previously convicted to impose punishment pursuant to the T^^s- Penal Code, Se tion 12*42(d)* The Appellant maae and entered his plea of "not true" and the Stete proceeded with presenting evidence to prove the prj©r convictions. Por he Appellant took the stand ana was questioned by the State and Defense, as to informaion relevant to the Ap --si i' .0-;» r past* The chrrpe o.-~ nrrirh. '•:.^J' - r. •'•::-<::. o .• - v,i\ -r:ae r' rea to the jury who retired an returnee w-th a finding of the Appellant hav ng been previously convicted and a punishment of seventy- five (75) years was imposed*, as a result of proceedings having been held in open Court on January 7th and 8th, 2014*

VI*

GROUII-jS FOR REVIEW WITH ARGUMENTS'

1* GROUND POR REVIE; NUMBER ONE WiTH ARGUEMENT APPELLANT CONTENDS Ml, COMPLAINS THAT HIS R GHT TO REASONABLY EFFECTIVE ASSISTANCE OP COUNSEL ON THE FIRST APPEAL HAS BEEN jMIEj -lN VIOLATION OF RIGHT - UNDER U* S. CONSTITUTION, SdCZTH AMENDMENT.

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ARGUMENT AN J AUTHORITIES

The Appellant contends and complains that he was not afforded the minimum of reasonable effective assistance of counsel during a critical stage of Sfche criminal process and procedure, to witj on the first appeal* For it is a matter of the record that Attorney GARY B* Prust » as appointed by the court for purpose of making and filing of a written Motion For New Trial and seeing that the same was docketed for hearing pr or to hav.ng ma e and filed Notice Of Appeal whereas the Appellant had made an oral Motion For New Trial which the trial court did not otherwise make: any ruling thereon* As the rulings and decisions of the United States Supreme Court in the case of Strickland -v- WASHINGTON, 466 U*S* 668 (1984) and those of its genre. As the mere fact that the court appointed attorney did make and f'le an appeal brief purportedly in accordance with and pursuant to ANjERS -v- CALIFORNIA, 386 U«S. 738 (1967)* Aceordingly^ if the appointed counsel had adhered and conformed to the fundamentals of h: s s hooling and tra n ng he would have in vestigated and made Trnown to himself that the trial counsel was of opinion and belief that the eviden e as proffered and entered into the trial records failed to subsfeniate an., support a finding of "•guilty as charged in the ixiGict.^nt*:: ih.ich in spite of this be- I'.ef and op\on as set forth in the trial records- at VOLUME 3L0, PAGE 57 through £9 as relevant to Attorney Parker ma-ing this a part of the records* Yet, he Attorney Parser did not make a formal motion to the Court for a directed verdict of acquital explaining his po sition and preserving error thereon* Still further, where the re ord at Volume 13, Page 41 ana Page 42, the Appellant makes and enters into the record an Oral Motion Por New Trial which under the ircumstances where the Court allowed for the trial attorney to be allowed to withdraw. And because the Ap pellant for 1he Brief moment did not and does not have an attorney and hi s oral motion was even acknowledged y the Court the refusal ana failure of the appo nted attorney t> make and f'le a Motion Por New trial where substantaial error had occured during the punishment part of the trial where the records and documents used for purpose of enhancement would not ana does not show the Appellant to have

9

twice convicted in accordance and pursuant to Texas penal -Jode, Section 12*42(d)* Por if the State's Attorney snd/or the Appellants trial counsel had investigated they would have found that the Appel lant's 1991 purported onvi ton was in fact voidable and unavailable for use a? an enhancement where is was void ab jf0$&*ri>i$p-^ "^e st ate's proof of the Appellant's enhan ements is both actually ana fa t- ually insufficent* Yet, from the outset vhea the Appellant made an attempt to bring to the at tent on of ihe Court by and through an inartfully pled Motion To Quash that neither the State's Attorney and/or the Oourt timely addressee! the error where any corre tion of the faulty prior allegat ons should haze been made timely and properly before trial* For this would have removed the element of surprise on part of Ihe Appellant's trial ounsel who did not and does not know the prior convictions are in fa t all three are voidable and were allowed to be used w thout any object.on on his part* the trial attorney* In 'Onclusion, the Appellant mainta ns and avers that he was not and has not been afforded the minimum of reasonably effective assist ance of counsel, on appeal when the appointed appeal attorney refused and fa led to make a reasonable and dilligent investigation to see if there was either a verbal and/or written Motion Por New Tr al that was made nd entered into the record that had been timely and'properly done within ten days of the entry of the judgement and sentence* Aa this fa t and the failure of the appo nted appeal attorney to brief the fa t that no rul ng had been made deny ng the Motion For New ffrial the Anders Br ef as now before the Honorable Court of Appeals con stitutes ineffe t ve assistance of ounsel. As the Honorable Court Of Appeal does not have jurisdiction* 2Q.GR0UNJ POR REVIEW NUMBER TWO WITH ARGUEM^dT APPELLANT CONTENDS AN j COMPLAINS THAT THE EVIDENCE AS UdE.J AN, RELiED UPON THE SUPPORT IHE APPELLANT'S CONVICT ON FOR A©SE6G£&TEIi AS cAULT W TH A dEAjLY WEAPON IS ACTUALLY 'NSUFFICENT DENY NG THE APPELLANT IE:5 HI GHT TO A FAIR AM . IMPARTIAL TRIAL UII^ER THE U» S. CON STITUTION, AMENDMENT SIXTH,

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ARGUEMENT AMj AUTHORITIES The Appellant ma ntains ana contends that the United States Constitution, Sixth Amendment mandates that the evidence in the review of actual insuffiency under the Unite. State.:, iupreme Court's ruling aniff opinion in Jackson -v- Virginia, 443 UoS* 30? (1979) requiring "no rational trier of fa-tcould /find/ proof of guilt beyond reasonable doubt.,!, For in the instant case if not for the direct and indirect bias for reason of race and gender, the evi dence as heard and considered merely showed and represented that an the early morning of March 12, 2013 a 911 telephone -all had been made by someone at the address of a residence lo ated on Houston Street, in "illeen, Texas* A? well as, having shown that Debbie Sweet and: the appellant both were at the house* v5till further, the trial on merit found in Volume 9 through 11 onstituted an accumalation of fa-ts proffered by the "ftate by and through witnesses that had been ailed to purportedly show the commiss on of Aggravated Assault with a Deadly weapon as having been alleged in the indictment. For the deadly weapon, to wit; a l.nife as shown and exhibited? as well as, having been entered into evidence were not shown to have been ever used and/or exhibite. by the Appellant at any time on the morning of March 12, 2013o As the testimony of the itate's witness in hief, the victim, namely; Debbie dweet in forms that two knives were found ex xx..- x x Police* ^nu neither of the two does Debbie tweet icent fy the Appellant as hav ing possesed and used them at the time of the alleged threat and pur ported deadly weapon possession and use to substant ate commission of the offense* as she Debbie Sweet repeatedly gave testimony if true that oantradic-ted the required and needed showing* Even further, the utter inability of DEbbLe Sweet to be able to identify whi h one of the two knives she turned over to the Police was the actual -weapon raises question of doubt* For the inability of the Police to find either of the two knives found oy the victim Jebbie Sweet raises a serious question of fact as to was there a nife or knives involved at all? As the shoddy Police work in hav ing failed to have the victim examined by medical personel to remove any doubt that the victim had in fact been subject to an assault thst gave rise for the Appellant to be jailed on March 12, 2013* Which

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further there is no one other than Jebbie dweet asseting that the Appellant had made a threat by stnt'i^g uBitch Ifm going to kill youl* As she, Debbie Sweet, further during the course of her testimony st ated contradiction as to the Appellant's location and whereabouts vdien the stated threat was made by the Appellant an.- of which Debbie Sweet did not and could not give relevant factual account consist ent with the initial staement made and given to Police Officer who took the written statement ma-ing the same the basis of probable cause for the Appellant's arrest* In total and conclusion the entire purported support at ive test imony by all witnesses proffered by .the State gives- rise to no mare than a small piece of eviden e that does not meet the requirements of Jackson -v- Virginia* 443 U.S* 307 (1979) thereby denying the Appellant his r ght to a fair and impartial trial as required by the U* S^> Constitution, Sixth Amendment which requires that evidence be sufficent. For the Appellant is entitled to reversal and entry of accmital pursuant to the Burks -v- U*So, 437 UoS* 1 (1978)* ' 3. GROUN-J POR REVIEW NUMBER THREE WITH ARGUEIuENT APPELLANT CONTENDS AN,J COMPLAINS THAT THE EVIDEN ,E AS UdE^ ALT REL Ej UPON TO SUPPORT THE APPELLANT'S CONVICTiON FOR AGGRAVATE^ ASSAult W:TH A DEADLY WEAPON IS FACTUALLY INSUFPI ENT DENYING THE APPELLANT TO HIS RIGHT TO A PA R W.j IMPARTIAL TR AL UNjR THE U, S* CON STITUTION, SIXTH AMENDMENT,, ARGUEiildT Ada AUTHORITIES The Appellant without reiterating of subject matter of the previous Ground Fogy Review, the Appellant does now advance and plead his fa tual suffieney complaint relying on the ruling of the Texas Court of Criminal Appeals which the Court's rul .ng and opinion in 0lewis -v- abate, 922 SW2d 126 (1996 Tx, Ct* Cr* App») Is relevant and applicable in the instant ;ase where the factual suffienoy does not warrant and support a find ng as returned by the jury where the evidence does not connect the Appellant to the possession and. use of a knife and/or ,rn ves proffered an.- entered into evidence by the 'rtate as having been found and turned in to the Police by the victim and State's hief witness whose factual account does not fully and ac curately support the allegations ana findings made by the jury.

Accordingly, where jebb e Sweet's testimonial account repeatedly contradicts r-jic fs 5I to xvx;ort and substantiate the allegations made in the indictment* Por the Texas Court of Criminal Appeals has ruled and determined that factual insuffiency violates the U* S* Con stitution, Amendment Six* Clewis -v- State, 922 Sw2d 126 (1996 Tx* Cto Cr. App«)

Because the trial on merits as found in Volumes 9, 10, and 11 does not fa tually support a finding of "Guilty as Charged in the Indictment" the Appellant see 3 this Honorable aurt of Appeals to reverse and acquit* 4* GRO'UNd POR REVIEW NUMBER FOUR WITH ARGUEMENuj APPELLANT CONTENDS Adx COMPLAINS THAT THE ^TATE COMMITTED PREJUDICIAL AND HARMFUL ERROR WHEN THE NOTICE FOR ENHANCE MENT JjBj FAIL TO G VE THE APPELLANT NOTI E OF WHAT HE WAS TO DEFEND DURING THE PUNISHMENT PHASE OF THE TRIAL* ARGUEMENT AMD AUTHORITIES

The Appellant does contend and complain that the State's NOTICE OF INTENT TO SEEK ENHANCEMENT PUNISHMENT does fail to give the Appellant proper and t mely notioe* Por the entire Notice as having been read by Stpte's Attorney Strimple was read into the re cord and to the jury and Court* (See: Volume 12, Pages 6, Lines 21-25; Page 7, Lines 1-25; Page 8, L nes 1.-11) For the subject mat ter and antent will tend to show the complaint as having been made by the Appellant in his MOTION TO QUASH THE INDlGTiviENT was honored by purportedly making needed correction to substance of the Enhance ment Paragraphs that had aleged wrong information regarding purported prior convictions* As the Noti e as read and given into, record to the Jury ano. Cour alleges that the Appellant on trial for the Offense of theft when in fact the Appellant had been tried and convicted of Aggravated Assault with a deadly Weapon, to wit; a knife* Because this allegation and reading by the State creates a fatal variance tfiat subjects the Appellant to prejudice and harm when the Court's Jury Charge On Punishment as having been read ano. given to the jury shown in Volume 13, PAGE 5, LINES 22-25; Page 6, LINES 1-25; Pages 7-13, LINES 1-25; Page 14, Lines 1-5 set fijrth the Charge which does not track the reading of the State's Notice*

Accordingly, the Appellant is of belief that the State*s Attorney has violated the Appellant's rights as defined by the U« So Constitution, Amendment Pive expressly mandating that the App ell at, a person, should not be held to answer fot? a apitol, or otherwise Infamous crime, unless upon presentment or indictment of a Grand Jury* Por the State* s Attorney having abandoned the allega tion stated in the indictment and proceeded on the Notice that now fails to; track the jury charge which the Appellant contends and maintains that the rul ng and op n on of ihe United States Supreme Court in the case of WOLPP -v- MoDONNELL, 418 U*s7 539 (1974) gives forth relevant and applicable diction to support the Appellant's, contention and complaint of violation of his rights by the acts, a ti ons, omiasi ons, and atherwi s e condu t of the St at e* s A11 orney* The Appellant seeks that this Courbt; grant and order the Appel lant's enhan emen to: be null, and void w thout any effect; with remandment for imposit on of new punishment within the range of what the off e ns e man d at e s • 5* GROUND POR REVIEW NUMBER P2VU WITH ARGUEMENT APPELLANT CONTENDS AND COMPLAINS THAT THE STATE'S ATTORNEY PA LED TO PROPERLY PROVE THE APPELLANT'S PRIOR CONVICTIONS POR PURPOSE OP ENHANCEMENT* ARGUEMENT APT J AUTHORITIES The Appellant contends and complains that the State*s Attorney in the course of purporting to profgr evidence and proof of the Appellant's pr or convict ons for purpose of enhancement the records and documents as proffered and used does fail to affirmatively show proper certification as required by Lan^ston -v— State, 776 Sw2d 586r 587 (Txo Cr* App* 1989) and Banks -v- State, 158 Sw3d 6@§, &$Z (Tx* App—Eoiaston. /I4th$ist*/ 2005) 0 Po.r this reason the Appellant seeks the enhancement to be ruled null and void andorder a reversal! and remand for purpose of sentening .

6* GROUND POR REVIEW NUMBER SIX W TH ARGUEEENT APPELLANT CONTENTS' AN,, COMPLAINS THAT THE EVIDENCE ON PROOP OP ENHANCEMENT IS INfSUPPICEKTT AS WHERE THE JUDGEMENTS M.j SENTENCES- ARE VOID*

ARGUEMENT AN i AuTHORITIES The Appellant contends and complains that the eviden e used and relied upon by the State's Attorey is legally insuffi ent to support imposition of enhancement as allegd in the Notice* Por the State's Attorney* s use of multiple means to otherwise show and support the commission and conviction of prior convictions where the jdgements and sent en es upon their face show and support the judgements, sensnces,, and convictions to be null and void* As the rul. ng of &fee Tpxas Court of Grim nal Appeals in the case of PLOWERS -v- STATE, 220 S'w3d 919,. 921 (Tx. Cr* App* 2007) identifies numerous ways to prove a prior conviction of which in this case a combination of them all was used* However, the Appellant is of the position where the priors are void up on theeir face the proof must not be sustained* Por not even the Appellant* s own testimony will support any enhancement when the prior convictions are ' ontrary and in violation of the United States Constitution* Sixth Amendment* And for this reason the Appellant request reversal and remand for resent en ing in ac ordance with the law*. 7c, GROUND POR REVIEW NUMBER SEVEN WITH ARGUEMENT APPELLMT CONTENDS AND COMPLAIN J THAT HIS' TRIAL ATTORNEY WAS INEFPECTXVE IN A CRITICAL PORTION OP THE APPELLANT* S CRIMINAL TRIAL, TO WIT; VOIR DIRE* ARGUEMENT MP AUTHQRITl'I!

The Appellant maintains and avers that he was not afforded the minimum og reasonable effective assistance, of Qounsel by his trial counsel who refused and.fa^ed to participate in an a0tive zealous manner during voir dire* Por the Appellant, a Black Defendant, whose victim was a White Pemale and this fact alone should have alerted h m that his participation would be required and needed to comply with the mandae of he U, Sr. Supreme .Court in the case of Strickland -v- Washington» 466 U*S*. 668 (1984)» Because the Appellant's trial counsel dud refuse and fail to partic pate in the voir dire exam nat on the Appellant wad prej'udi :-ed when memers of iie jury whose prejudices and biaas for reason of race and gender were not dis avered and effectively denied the Appellant

^14-

a fair and impartial trial* Accordingly, the Appellant seeks to have his case reversed and remanded for a ne trial where the trial counsel*s refusal to render the m nimum of reasonable effective ass stanee of counsel inflicted prejudice and harm in his trial attributing and c°n^r:Lbu-ting to the Appellant*s judgement and conviction* PRAYER

WHEREFORE,, PREMISES OP THIS LETTER PORM BBIEB HAVING COMB REGULAR before this HONORABLE COURT OP APPEALS,, the Appellant does PSAY that this COURT GRANT the Relief as sought and request for each Ground Por Review as the Appellant may be entitled* Ad further, the Appellant does PRAY that this Honorable Court Of Appeals does grant and ORDER any a.nd all otherrelief that ihe Court is authorised under both LAV/ and EQUITY*, as the Appellant does hereinafter affix Ms s gnature here nafter on this date of July 13* 2015 declaring,; confirming,; verifying, and pleading under the penalty of perjury this Brief s true and correct*

Respectfully submitted,

APPELLANT, PRO SE ' ALLRED UNIT/TDCJ-CIB 2101 P* Iff; 369 N* Iowa Park, Tx 76367

MOTION POR MY AN.; ALL AVAILABLE JuJMluJg* WttfiTKff, idSjJKEsS, aNd RMlQNaTRANjE AUTHuRi&El> Bff 'M,.S HoI'TOR- AbLE COURT OP JspPJftsLS* JURlSDICT ON AN..- AUHOR TY as AUTHOR ISE^ IN gUJjuJtu&Ncjii WITH THis UIMjTEd b'MKs CONaiL TUTION iJNjj.TiiE ZSJCAa CON^TrTUor"ON aNTTDBEIR CONPOiMflG LAwS—

AppeaMS Mfir^ie^lit^a M^F^ai! M?£Hi MSuyf relief, redress aniremonstrance to whi h this Appellant may be entitled to under law and equity that-may e found in the records of this cause* YZHSHJKiJ'ORE, PREMISES CONSIDERED, Appellant prays for any and all remedy, redress, relief, andremonstran e that may be authorized by law and equity* Respectfully submitted*

APPELLANT /MOVANT, Pro Se ALLRED UNIT/TdCJ-CID 2101 P„M. 369 N. iov/a park;, tx 76367

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CERT, PICATa OF biSRVlCE

I, WILLIE LEI OCKLETREE, #19069.81, the Appellant in the foregoing LETT JR iORM PLEADING who does declare, state, verify, certify, confirm ana plead that 1 have aerved a true and correct copy of this LETTER POM PLEA :. NG by placing the same in a postae prepaid envelope ana depositing the same in Allreu Unit Mail Box to be subsequently picked up by Allred Unit Mail Room Personel for lagging in the out go ng legal mail and to be subsequently deposited n the U* S* Postal Service for subsequent delivery as hereinafter set forth, to wits MR* GARY S. P1EHST LAW OPP"7" "E OP GARY E* PRUS'T 1607 NUiuCSS STREET AUoT N, TEXiit 78701

MR* BOB Do OjOM, AJSISTANT DISTRICT ATTORNEY Po 0. BO^ 540 BELTON, TEXAS 76513 This be ng a true and correct service which I declare, -onfirm, state, verify, certify, ana plead under the penalty of perjury of the lpws of the United States ana The ^tate of Texas pursuant to the provis ons of 28 U* S. G. s6q0 1746 and Tx* Civ. Praco & Rem* Code, Sect on 132.001-132*003 by here nafter affix ng my s gnature on this date of July 13, 2015 confirming th s to be a true ana correct act of service*

WILLIE LEHl 0W±mxsMf #1906S ^•1906981

APPELLANT, PRO S'E ALLRED UDIIT/TDCJ-Clii 2101 P.M. 369 Ho IOWA PARK, TJC 76367 c3 J

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