Martin, Peter James

ORIGINAL IOSOH

PD-1050-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

COA 09-13-00180-CR,09-13-00181-CR,09-13-00182-CR,09-13-00183-CR

PETER JAMES MARTIN, Appellant, §

§ From the 221st Judicial District

v. § Court of Montgomery County, Texas

§ Cause Number 12-03-02604-CR

THE STATE OF TEXAS, Appellee, §

PETITION FOR DISCRETIONARY REVIEW

RECE

COURT OFCRIMINAL APPEALS

DEC 31 201*

Abe! Acosta, Clerk

FILED IN

COURT OF CRIMINAL APPEALS

DEC 31 2014

Abel Acosta, Clerk

PETER JAMES MARTIN

tdcj-cid #1846003

STILES UNIT 3060 FM 3514

BEAUMONT, TX 77705

ORAL ARGUMENT WAIVED

REQUEST FOR APPOINTMENT OF COUNSEL

(a) Identity of Judges, Parties and Lawyers

Judges: Honorable Lisa Michalk, Honorable Mary Anne Turner,

pre-trial proceedings all trial proceedings

207 W. Phillips 210 W. Davis, Suite 400,

Conroe, Texas 77301 Conroe, Texas 77301

Phone:(936)539-7808 Phone:(936)538-8174

Prosecutors: Mr. Robert Fryer, Ms. Joann Linzer,

SBOT #00798189 SBOT #24037255

pre-trial proceedings trial proceedings

Assistant District Attorney Assistant District Attorney

for Montgomery County Montgonery County

Ms. Amanda Lanning Mr. Lane Haygood

SBOT #24071514 SBOT #24066670

trial proceedings trial proceedings

Assistant District Attorney Assistant District Attorney

for Montgomery County for Montgomery County

Jason Larman, Mr. Bill Delmore,

SBN #24072468 SBN #05732400

appeal proceedings appeal proceedings

Assistant District Attorney Assistant District Attorney

for Montgomery County for Montgomery County

Mr. Brent Ligon 207 W. Phillips, 2nd Floor,

SBN #00796955 Conroe, Texas 77301

District Attorney Phone:(936)539-7800

for Montgomery County FAX: (936)788-8395

Defense Lawyers: Mr. Todd Ward, Mr. Walter Boyd Jr.,

SBOT #00797780 SBOT #02782000

pre-trial proceedings trial proceedings

DeGuerin and Dickson L.L.C. 202 Travis. Suite 208

1013 Preston Ave., 7th Floor Houston, Texas 77002

Houston, Texas 77002

(713)223-5959

Mr. Christopher Neal Allen, Mr. Jeremy D. Finch,

SBOT #24031816 SBOT #24052964

appeal proceedings appeal proceedings

Assistant District Attorney 300 W. Davis, Suite 450

for Mongomery County (!) Conroe, Texas 77301

(936)539-7800 Phone:(936)756-7297

Appellant: Mr. Peter James Martin, TDCJ-CID #1846003

Michael Unit of TDCJ-CID, 2664 FM 2054

Tennessee Colony, Texas 75886

Legal Assistant, Paul James Koumjian, Post-Conviction Issues

TDCJ-CID #1039181, Hughes Unit, Rt.2, Box 4400

Gatesville, Texas 76597

(b) Table of Contents

(aj Identity of Judges, Parties and Lawyers i

(b) Table of Contents ii

(c) Index to Authorities, Documents and Appendix Exhibits iii-iv

(d) Statement Regarding Oral Argument v

(e) Statement of the Case v

(f) Statement of the Procedural History vi-xi

(g) Grounds for Review One through Seven xii

(h) Arguments 1-13

1. APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY APPEAL COUNSEL'S

TOTAL DISREGARD IN THE APPELLANT'S BRIEF OF THE MAIN DEFENSES ARGUED

TO THE JURY AND THE COURT OF APPEALS NOT RULING ON THE MERITS OF

APPELLANT'S FILED COMPLAINTS REQUIRING A VACATE AND REMAND ORDER

A. Due Process 1

B. The Court of Appeals Abused It's Discretion By Not

Addressing the Merits of Appellant's Timely Filed

Complaints About Appeal Counsel 1-4

C. Appeal Counsel Had an Actual Conflict of Interest in

Representing Appellant, and Montgomery County Before,

During and After This Montgomery County Appeal 5-6

D. The Court of Appeals "Overruled" Decisions on the

Pro-Se Motion for Rehearing and En Banc Consideration,

Were an Abuse of Discretion, Requiring a Merits Review

of Appellant's Pro-Se Identified Constitutional Issues 6-9

2. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL BY EMPLOYING A STRATEGY OF POISENING THE JURY WITH APPELLANT'S

PRIOR CONVICTIONS DESPITE HIS NOT TESTIFYING DURING THE GUILT PHASE,

REQUIRING REVERSAL OF THE CONVICTIONS AND REMAND FOR A NEW TRIAL 9

3. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF •

COUNSEL BY OUTRAGEOUSLY FAILING TO EMPLOY STATE'S EVIDENCE OF "FRONT-

VIEW" LASER TEST BULLET TRAJECTORY PHOTO RESULTS TO PROVE THAT DEPUTY

AZWELL FALSELY TESTIFIED APPELLANT WAS DRIVING "DIRECTLY" AT HIM

WHEN HE SHOT AT APPELLANT AND TO PROVE CSI WRIGHT SUPPRESSED THE

"FRONT-VIEW" LASER TEST PHOTO'S EXISTENCE AND EXCULPATORY NATURE

CONTRARY TO DUE PROCESS, REQUIRING APPELLATE RELIEF AT THIS TIME 9-11

4. THE STATE VIOLATED DUE PROCESS BY PRESENTING FALSE TESTIMONY

THAT APPELLANT DROVE "DIRECTLY" AT DEPUTY AZWELL, SUPPRESSING THE

"FRONT-VIEW" LASER TEST PHOTO RESULTS IN TRIAL, AND BY FAILING TO

CORRECT THE FALSE TESTIMONY AND MISLEADING EVIDENCE WHEN IT APPEARED 11

5. THE COURT OF APPEALS ABUSED IT'S DISCRETION CONTRARY TO DUE

PROCESS, INTERESTS OF JUSTICE AND CASELAW BY NOT ORDERING THE STATE

TO RESPOND TO APPELLANT'S PRO-SE MOTIONS FOR REHEARING AND/OR EN

BANC CONSIDERATION UNDER TEXAS RULES OF APPELLATE PROCEDURE 47.1,49.2

11-13

(i) Prayer, Certificate of Service 14

n

(c) Index to Authorities, Documents and Appendix Exhibits

USCA 6 Right to Assistance of Counsel 4,9-11

USCA 14 Right to Due Process 1,4,6,8,9,11,12

Texas Rules of Appellate Procedure,

44.2(a) Reversible Constitutional Error v

44.4 Remedial Error of Trial Court 13

47.1 Written Opinions Requirements xi,3,7-9,11

49 Motion for Rehearing v

49.2 Responses, Motion for Rehearing 11,12

49.3 Decisions, Motion for Rehearing 11

66.3(c) Conflicting Decision Reason for Granting Review , v

66.3(f) Supervisory Authority Reason for Granting Review v,9,ll

68.2 Time to File Petition 11

Ex parte Adams,768 S.W.2d 281(Tex.Crim.App.1989) 12

Anders v. California,386 U.S.738(1967) 2,3

Bledsoe v. State,178 S.W.3d 824(Tex.Crim.App.2005) 3

Brown v. State,183 S.W.3d 728(Tex.App.-Hous[l Dist] 11-23-05 reh'g denied 1-4-05) 10

Brown v. State, 11-03-00253-CR, 2001 Tex.App.LEXIS 8479(Tex.App.-Eastland 10-28-04 pet refd)L0

Brown v. Miller,519 F3d 231(5th Cir.2008) 8,10

Carroll v. State,101 S.W.3d 454(Tex.Crim.App.2003) 11

CHC Honey Creek LLC v. Bexar Appraisal District,04-11-00354-CV,

2012 Tex.App.LEXIS 5458(Tex.App.-San Antonio 6-11-12 no pet) 12

Dobbs v. State,07-12-0376-CR,07-12-0377-CR,2013 Tex.App.3050(Tex.App.-

Amarillo 3-20-13),rehg ovrld, 2013 Tex.App.LEXIS 5786(5/9/13) 10

Draughton v. Dretke,427 F3d 286(5th Cir.2003) 10

Evitts v. Lucy,469 U.S.387(1985) 1,4

State v. Fury,186 S.W.3d 67(Tex.App.-Hous[l Dist]2005) 12

Garcia v. State,57 S.W.3d 436(Tex.Crim.App.2001) 1,3

Garrett v. State,749 S.W.2d 784(Tex.Crim.App.1988) 11

Jiminez v. Quarterman,129 S.Ct.681(2009) 2,3

Johnson v. State,172 S.W.3d 6(Tex.App.-Austin 2005) 4

LaPointe v. State,225 S.W.3d 513(Tex.Crim.App.2007) 13

Lewis v. State,402 S.W.3d 852(Tex.App.-Amarillo 2012), pet granted,

In re Lewis,2013 Tex.Crim.App.1526(10-23-13) 12

Light v. State,15 S.W.3d 104(Tex.Crim.App.2000) 8,11

Lyons v. McCotter,770 F2d 529(5th Cir.1985) 4

Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo 2004), appeal

after remand,163 S.W.3d 92(Tex.App.-Amarillo 2005 no pet.) 1,3,4

Michaelwicz v. State,186 S.W.3d 601(Tex.App.-Austin 2006 rehg ovrld, pet refd) 13

U.S. v. Miller,576 F3d 528(5th Cir.2009) 10

McKee v. State,2012 Tex.App.LEXIS 2421(Tex.App.-Dallas 3-28-12), pet

refd, In re KcKee,2013 Tex.Crim.App.LEXIS 166(1-30-13) 13

Perillo v. Johnson,205 F3d 775(5th Cir.2000) 5

Perkins v. State,902 S.W.2d 88(Tex.App.-El Paso 1995), supplemental

opinion,905 S.W.2d 452(Tex.App.-El Paso 1995 pet refd) 8,12

Reeves v. State, 03-03-00490-CR,2004 Tex.App.LEXIS 6815(Tex.App.-San Antonio 2004 pet refd) 12

Robertson v. State,187 S.W.3d 475(Tex.Crim.App.2006), on remand,

Robertson v. State,214 S.W.3d 665(Tex.App.-Waco 2007 no pet) 4

Robinson v. State,16 S.W.3d 808(Tex.Crim.App.2000) 3,11

Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 3,7,8,12

Rodriguez v. State,129 S.W.3d 551(Tex.App.-Hous[l Dist]2004 pet refd) 1,4

Rudd v. State,616 S.W.2d 623(Tex.Crim.App.1981) 1,3,4

in

In re Schulman,252 S.W.3d 403(Tex.Crim.App.2008) 3

Sims v. State,99 S.W.3d 600(Tex.Crim.App.2003) 8,9,12

Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 7,8,11,12

Strickland v. Washington,466 U.S. 668(1984) 4,10

Stome v. State,17 S.W.3d 348(Tex.App.-Corpus Christi 2000) 4

Spence v. State,758 S.W.2d 597(Tex.Crim.App.1988) 13

Tassin v. Cain,517 F3d 770(5th Cir.200a') 12

Vasquez v. State,67 S.W.3d 229(Tex.Crim.App.2002) 12

Wheat v. U.S.,486 U.S.153(1988) 5

Whiddon v. State, 10-06-00085-CR,2007 Tex.App.LEXIS 916(Tex.Acp.-Waco 2007) 10

Hanby's Annotated, Texas Rules of Appellate Procedure(West's 2011 ed.) 3,11

12/10/13 filed Appellant's Brief vii,l

02/10/14 filed State's Brief 1,2

03/17/14 filed Pro-Motion Objecting to Counsel's Brief, Appx.49-52, viii,xi.i,2,3

05/21/14 Memorandum Opinion, Appx.33-41, 2,4,9

06/13/14 filed Original Pro-Se Motion for Rehearing, 2,6,7

06/26/14 COA Denial of Pro-Se Motion to Exceed Page Limits, Appx.46, 6

07/21/14 filed Amended Motion for Rehearing, 2,3,6,7

07/24/14 COA "Overruled" Without Written Opinion Decision, Appx.45, xii,7

Affidavit of Trial Counsel, Appx.29-30, yiii,xii,2

08/07/14 filed Pro-Se Motion for En Banc Consideration, 2,7

08/14/14 filed Pro-Se Motion to Abate Appeal and Remand to Trial Court, 2

09/04/14 COA "Overruled" Without Written Opinion Decision, Appx.42> _7

"Front-View" and "Side-View" Laser test Photo Results Evidence, Appx.31-32, *<i,9

Deputy Azwell and CSI Wright excerpted trial testimony, Appx.1-5, xii,9-10

State and Defense Closing Jury Arguments excerpts, Appx.7-9, x.ii,9-10

Supplemental Brief: the Pro-Se Identified Reversible Errors, xi.i.,10,11

Deputy Chris Azwell testimony, Appx.1-3

Bullet Trajectory Expert Mark Wright testimony, Appx.3-5

Casey Meadows testimony, Appx.5-6

State's Closing Jury Arguments, Appx.7

Defense's Closing Jury Arguments, Appx.7-9

9/20/12 Motion to Withdraw Hearing (missing from appellate record) Appx.10-19

9/27/12 Motion to Substitute hearing (same, also missing) Appx.20-28

Trial Counsel Mr. Boyd's affidavit Appx.29-30

Court of Appeals 7/21/14 Memorandum Opinion,1-9 Appx.33-41

Court of Appeals Order Denying En Banc Consideration, Appx.42

Court of Appeals Notices of filing and not filing motions, Appx.43,44

Court of Appeals Order Overruling Amended Motion for Rehearing Appx.45

Court of Appeals Order Denying Motion to Exceed Page Limits, Appx.46,47

Court of Appeals Order Refusing to Construe Pro-Se Briefs, Appx.48

Pro-Se Timely Filed Motion Complaining About Appeal Counsel, Appx.49-52

State's Exs.176,179 of Bullet holes in side and front of car, Appx.53,54

State's Exs.59,60,78,79,106-07 close-ups of syringes evidence, Appx.55-57

"Front-View" Laser Test Photo suppressed State's evidence, Appx.31

"Side-View" Laser Test Photo admitted State's exhibit Appx.32

IV

(d) Statement Regarding oral Argument

Appellant waives oral argument at this time

(e) Statement of the Case

On July 12,2012, Appellant Peter James Martin ("Appellant") was charged

in a four count indictment with: (CT.I) "threaten" Deputy C. Azwell by using

a "vehicle" as a "deadly weapon" under the 1st degree felony Penal Code §22.02

(a)(2),(b)(2)(B) offense of Aggravated Threat of a Public Servant While Lawfully

Discharging an Official Duty ; (CT.II) "flee" from Deputy C. Azwell by using

a "vehicle" as a "deadly weapon" under the 3rd degree felony Penal Code §38.04

(b)(2)(A) offense of Aggravated Evading Arrest By Using a Vehicle While in

Flight ; (CT.III) "alter, destroy, or conceal" "Syringes" with "intent to impair

it's availability as evidence ... related to" a "Possession of Controlled Sub

stance offense" under the 3rd degree felony Penal Code §37.09(d) offense

of Tampering With Evidence, and ; (CT.IV) possession of a controlled substance

under one gram, a state jail felony under Health and Safety Code §481.115 for

possession of a controlled substance in penalty group 1.

The indictment contained five (5) enhancement paragraphs of prior convict

ion allegations. Clerks Record ("C.R."),39-40. Appellant pleaded "not guilty"

to all charges, Reporter's Record ("R.R."),v.4,p.l, but a jury found him guilty

as charged in the indictment on all counts, made an affirmative finding of

the use or exhibition of a deadly weapon in the count II evading arrest charge,

R.R.,v.9,pp.128-29 lines 12-15, 1-10, found the first three enhancement para

graph, allegations "true" and assessed punishments for counts I,II and III

at "life" and for count IV at twenty years imprisonment. R.R.,v.11,pp.211-12.

It is undisputed that Deputy Christopher Azwell attempted to conduct a

traffic stop on Appellant's vehicle travelling on the freeway, was unable to

stop Appellant who exited the freeway into rural, local neighborhoods pursued

by the Deputy and other officers, and this police pursuit ended on a dead end

street when Deputy Azwell shot through Appellant's car windows while he con

tinued to evade arrest, hit Appellant in the chest, and Appellant promptly

surrendered thereafter. The State recognizes that Appellant's main defense

in trial was that Deputy Azwell fabricated his testimony that the Appellant

tried to run him down to justify his act of shooting the Appellant. The instant

petition for discretionary review proceeding is Appellant's continued effort

to demonstrate that the court officials in his trial and appeal, in concert,

falsely testified and suppressed material evidence in order to cover-up Deputy

Azwell's unnecessary shooting of the Appellant to arrest him, and that the

State knowingly failed to correct this perjurious testimony in trial (and in

this appeal) when it appeared, all violations of Due Process of the Law. The

Appellant respectfully requests this Honorable Court hold him to a lesser stan

dard than that applied to lawyers, because of the egregious conduct of the

court officials in his case below forcing him to resort to pro-se pleadings

to defend his fundamental, structural, constitutional rights to a fair trial.

Appellant is actually innocent of the Aggravated Threat of a Public Servant

charge, and because he has legally shown Deputy Azwell's testimony in trial

as the main witness against him was fa.'is.e and perjurious, he should be acquitted

of that charge and entitled to a new trial on all the other changes. Tex.R.App.P

44.2(a),49,66.3(c),(f).

(f) Statement of the Procedural History

Trial Court

fl On May 4,2012 retained defense counsel Mr. Ward of the firm DeGuerin

and Dickson appeared for Appellant, filed a Brady motion, and on May 23,2012

trial judge Lisa Michalk ordered "all exculpatory evidence pursuant to Brady

v. Maryland and related cases" be produced by the State. C.R.,20-23.

U2 On August 3rd and 30th,2012 consecutive agreed settcogs for a plea

acceptance hearing were scheduled. C.R.,47-54. On September 20,2012 Mr. Ward

flled„ a Motion to Withdraw (MTW) claiming he was only hired for "plea negotia

tions", the case was "now set for trial" and he was "not retained to represent

Defendant during the trial stage, pursuant to their agreement". OR.,55. A

hearing was held that date with Appellant represented by attorney Mr. Boyd

against Mr. Ward, during which hearing it came to light that Appellant's elderly

disabled mother had paid. $55,000.00 to attorney Dick DeGuerin by cashier's check

in the record, see R.R.,v.l2;Defense Exhibits, via Mr. Ward for representation

in the instant case, and now after plea negotiations failed Mr. Ward was in

sisting upon another $35,000.00 to continue representing Appellant in trial,

which however Appellant's family did not have. At that time Judge Michalk ad

vised the Appellant on the record, "Here's the deal. You have to pay your at

torney. Otherwise, your attorney is not going to want to do a good job for

you." See Appendix (Appx.), f-|-ig (Sept.20,2012 Hearing, R.R.,5-9(by Heather

Diess, CSR #8461)); OR.,52-53(mother's letter to judge about Mr. Ward duping

her out of her life's savings, only to ask for more money she did not have).

Judge Michalk DENIED Mr. Ward's MTW and reset the case for trial. OR.,57,58.

On September 27,2012 both attorneys Mr. Ward and Mr. Boyd filed a joint motion

to substitute Mr. Boyd for Mr. Ward in trial. OR.,59-61. A hearing was held

that date where all parties agreed to allow Mr. Boyd to substitute for Mr.

Ward in trial. Appx. a3 (Sept,27,2012 Hearing, R.R.,4(by Cathy Busa, CSR #5060))

Judge Michalk GRANTED the motion to substitute, C.R.,62, and Mr. Ward filed

his last motion, a Motion for Inspection of His Motor Vehicle. OR.64-66.

1T3 On January 23,2013 substitute trial counsel Mr. Boyd filed a motion

titled "Defendant's Motion for Jury Views" requesting the jury be allowed to

view the Appellant's impo unded vehicle to see the bullet holes in his car,

and to view the scene of the shootout where Appellant was arrested by Deputy

Azwell shooting Appellant while unarmed. OR.,64-66.

U4 Also on January 23,2012 the State filed: (1) a CD video and 11 pages

of police dispatch records summarizing it's contents and showing mere seconds

elapsed between Deputy Azwell exiting his patrol car and shooting the fleeing

Appellant, OR.,167-80, and, (2) a motion in limine seeking to prevent or limit

Appellant from arguing in trial, amongst other things, that he was "actually

or factually innocent" at point 5, "prior cases investigated by Deputy Azwell"

at point 9, that the "State had tampered with, destroyed or hid evidence from

defense counsel ... or the Court" at point 10, and/or "any investigation of

Deputy Chris Azwell, whether concluded or ongoing" at point 11, OR.,181-65,

which were all GRANTED. R.R.,v.3,pp.7-13.

vi

115 On January 28,2013 trial commenced before the Honorable Mary Anne

Turner, replacing without can.: explanation the Honorable Lisa Michalk as trial

judge, although Judge Turner stated specifically she "wanted to make sure"

Appellant's "choice of attorney" rights were respected by "proceeding forward"

with trial counsel "Mr. Boyd [a]s the attorney ... at this point." R.R.,v.4,

pp. 137-38. On January 30,2012 the jury convicted the Appellant and the next

day sentenced him to three "life" imprisonments for counts I-III and twenty

years imprisonment for count IV„ all the maximum sentences allowable under law.

1F6 On January 29 & 30,2012 trial counsel Mr. Boyd presented a Bill of

Exception, presenting the testimonies of Deputy Azwell, Detective Paul Hahs, •

and a "Sealed Appellate Record" DVD interview by Detective Hahs of Deputy Azwell

see R.R.,v.7,pp.l-3, where Mr. Boyd sought to introduce evidence attacking

Deputy Azwell's credibility, arguing the count I aggravated threat of a public

servant charge was a "cover-up" by false allegations of Azwell's "unneccessary

shooting" of the Appellant to arrest him. id.,pp.4-7,19-21. The DVD evidence

showed Deputy Azwell and his lawyer being interviewed by Detective Hahs about

Appellant's arrest and shooting, which the trial court refused to allow before

the jury as hearsay and irrelevant, id.,pp.8-9,20-21, of Deputy Azwell invoking

his attorney-client priveledge in the trial court which the trial court refused

to allow before the jury, id.,pp.41-43, AND of Azwell's attorney asking him

on the DVD video "isn't there one more thing that you forgot or wish to tell"

about Appellant's arrest and shooting, which the trial court also refused to

be admitted before the jury. id.,p.40.

»7 On March 4,2013 trial counsel Boyd filed motions for new trial, OR.,

220,226, arguing (1) original trial counsel Mr. Ward renderred ineffective

assistance of counsel in violation of the Sixth and Fourteenth Amendments to

the ^United States Constitution, by Ward's accepting of $55,000.00 from Appel

lant's elderly disabled mother on behalf of attorney Dick DeGuerin purportedly

only to represent Appellant in plea negotiations but without telling Appellant

Martin of this limitation to Ward's representation causing Appellant to unknow

ingly or involuntarily reject plea offers of 40 years and 35 years, aggravated by

Judge Michalk's interference with the plea bargaining process by telling Appel

lant on September 20,2012 that Mr. Ward then still representing the Appellant

wiil^'not want to do a good job for you" in trial if Appellant did not pay Ward more

money, as a whole implicating Appellant's rights to choice of counsel, conflict

free counsel, effective assistance of counsel, due process and an impartial

trial court judge, OR.,226-27; infra.,1T2;; R.R.,v.13,pp.30-38,51-53, (2) the

trial court improperly refused to permit the defense to introduce a DVD video

record and testimony of Deputy Azwell being interviewed by police while repre

sented by counsel he retained to defend himself against his shooting of Appel

lant on relevancy and hearsay grounds, OR.,227; R.R.,v.9(DVD video); see infra.

H6(Bill of Exceptions details) and (3) the trial court improperly denied trial

counsel Mr. Boyd's requests for assistance in conducting the motion for new

triul ?s- he* was "traumatized" by the substance and result of Appellant's trial

thus "needfed] the help", by the trial court's provisions of appointed appeal

counsel and the trial transcripts. OR.,228-29; R.R.,v.13,14,pp.5-20,8. Judge

Turner DENIED the requests on March 22,2013. OR.,231.

VI1

Appeals Court

1F8 Timely notices of appeal were filed on March 26,2013 and April 1,2013,

respectively pro-se and by newly court appointed appeal counsel Mr. Christopher

Allen. OR.,234,235; R.R.,v.13,pp.5-9,13,18-20. Only Mr Allen actually did

the appeal work, formulating and promulgating a single issue presented for

review completely unrelated to Appellant's trial defenses. See 11/01/2013 Order

(directed to only Mr. Allen); R.R., v.14,pp.21,71( judge.'.; states twice during

motion for new trial only Mr. Allen is appointed as appeal counsel effective

following decision on the motion for new trial); but see, 12/J0/2013 filed Ap

pellant's Brief (Mr. Allen's single issue brief, nominally co-authored by a

Mr. Jeremy Finch attorney).

119 On December J£),2013 appeal counsel filed an "Appellant's Brief" argu

ing in one issue that the trial court erred by failing to grant trial counsel

Boyd's request for a mistrial, when the State referred to Appellant's prior

convictions unrelated to the current matter while cross examining a defense wit

ness, ibid.,6. On February 10,2014 the State responded arguing the trial court

did not err because trial counsel Mr. Boyd did not object to the State's pre

vious introduction of a CD video showing Appellant being interviewed by police

admitting at the time of the crime he was on drugs and thirty years of parole,

and additionally^ trial counsel Mr. Boyd had already informed the entire jury

pool during voir dire that Appellant had a "rap sheet" of "prior convictions"

which even Mr. Boyd probably would not be able to overcome. See 02/10/2014

filed State's Brief,5-7(record quotations omitted).

H10 Trial counsel Mr. Boyd executed an affidavit swearing he called and

went to see many times appointed appeal counsel Mr. Allen to help with this

appeal, but Mr. Allen disregarded and put him off, as Mr, Allen "did not even

have the good sense or courtesy or even the interest of his client to consult"

with Mr. Boyd on "the number of errors [Boyd] raised in trial", complaining

that Mr. Allen had "no excuse for not raising some if not all of the errors

in trial" in Mr Allen's single issue appellant's brief. See Appx. a*?- 30

("Affidavit by Walter Boyd",1-2).

Ull On March 17,2014 Appellant filed a pro-se motion complaining about

appeal counsel's "only argument" in the brief disregarding his many trial argu

ments (see infra. ,11118-10) presenting a defaulted or waived mistrial argument

that could and should have been presented on the same facts and related record

references as an ineffective assistance of trial counsel claim, denying Appel

lant copies of the appellate record to actively assist in appeal counsel's

preparation of his appeal, resultingly hindering in Appellant's participation

in his own appeal and denying him a meaningful appeal contrary to due process,

and by appeal counsel's efforts only addressing an obviously "non-meritorious

argument that the State elicited Appellant's prior convictions — without

even discussing ... defense counsel employed this tactic by inviting such an

error makes appeal counsel's efforts seem like a boilerplate work of hacks

like the equivalent of an Anders brief [see, Jiminez v. Quarterman,129

S.Ct.681(2009) for discussion of Anders briefs] without the right bo file

a pro-se brief constitutionally protected, which may be the point" of Mr. Aliens

filing this brief in this manner, resulting in Appellant's having "no confidence

in his appeal attorneys". See Appx.W-531 (03/17/2014 filed Pro-Se Motion,1-4,

w/att'd clerk stamped record of Appellant's written requests to appeal counsel);

viii

and see, related pro-se motions filed April 23,2014, April 30,2014 and May

8,2014. "Appeal counsel Mr. Allen refused to present and argue ... anything

for Martin at his request." 07/21/2014 filed Amended Motion for Rehearing,4,13.

On March 20,2014 the Court of Appeals ruled that since appointed appeal counsel

had "already filed a brief on the merits", that the Court "would not consider

any pro-se submissions while a party was represented by counsel" (i.e., refus

ing to allow "hybrid representation"), a ruling presumably applicable to all

Appellant's further pro-se motions filed while the case was under submission.

Appx. 48. . Appellant could NOT have complained about the substance of the

Appellant's Brief earlier than when it was actually filed and then forwarded

to him, which is when it became clear to Appellant appeal counsel's single

issue raised was not "on the merits" of his jury trial defenses and errors.

H12 On May 21,2014 the Court of Appeals affirmed the trial court's judge

ments of convictions and sentences, rejecting appeal counsel's single issue

of an erroneous mistrial ruling in the trial court, by adopting one of the

two State's rebuttal positions, specifically that trial counsel Mr. Boyd failed

to object to previously admitted CD video evidence showing Appellant admitting

to police at the time of the crime he was on drugs and on thirty years parole

making the State's later raising of the issue "cumulative" and thus "not prejud

icial". ^cpx.36-7—Memorandum Opinion (Mem.Op.) ,4-5. The Court of Appeals did

not discuss the State's second rebuttal argument that trial counsel Mr. Boyd

had poisened the entire jury pool by admitting during voir dire that Appellant's

"rap sheet" of "prior convictions" suggested " a less than perfect past" which

the State argued was done "in the effort of intentionally creating error in

the proceedings." State's Brief,6-7,9 & n.3.

H13 The Court of Appeals made the following factual conclusions upon

which this Appellant relies herein: (1) the record as a whole shows Appellant's

"prospects of being acquitted on any of the charges for which he was tried

were highly unlikely" and "nothing in the record shows that Martin might have

received a different punishment." Appx.38 - Mem.Op.,6; (2) only Deputy Azwells

testimony, that Martin "having driven directly at him as the chase was ending"

showed Martin "tried to run him over with his car" hence "threaten[ing]" Deputy

Azwell under Penal Code §22.02(a)(2),(b)(2) hence justifying his "fir[ing]

several shots at Martin's car as [Martin] drove directly toward him", supported

the count I Aggravated Threat of a Public Servant conviction, _id.,6-7, implicit

ly rejecting the State's position claiming that the CD video of the pursuit

and/or Chief Hadrych's testimony "strongly corroborates" Deputy Azwell's testi

mony that "Appellant tried to run Azwell" over to avoid capture as Azwell stood

between his own patrol car and a civilian vehicle,"State's Brief,8-9; (3) the

police pursuit only showed Martin committing several traffic violations while

evading arrest, as admitted by trial counsel Mr. Boyd to the jury, but made

no conclusions regarding whether the evidence sufficiently showed Appellant

actually endangered anyone sufficient to support the deadly weapon enhancement

of the evading arrest conviction, Appx.38 —Mem.Op.,6, while rejecting appeal

counsel Mr Allen's deficient unsupported suggestion that Martin's car "crossed

into oncoming traffic", Appellant's Brief,11, and while also rejecting the

State's claims that "other roadway traffic pulled to the shoulder to allow

appellant and his pursuers to pass" as constituting evidence of dangerous driv

ing by Appellant sufficient to support the deadly weapon enhancement of the

evading arrest conviction. State's Brief,!.

IX

1T14 On June 13,2014 Appellant timely filed a pro-se 57 page Motion for

Rehearing and Motion to Exceed the Pabe Limits, but on June 26,2014 the Court

of Appeals DENIED the motion to exceed~the page limits and sua sponte extended

the deadline to file motion for rehearing until July 21,2014. In this original

motion for rehearing Appellant attempted to raise the following issues:

(1) the counts I & II Aggravated Threat of a Public Servant and Aggravated

Evading Arrest convictions and sentences violated the Double Jeopardy prohibi

tions against multiple punishments for the same, continuous driving conduct

at issue in this case, requiring the count II Aggravated Evading Arrest convict

ion and sentence to be vacated;

(2) the count III Tampering With Evidence conviction was based on legally

insufficient evidence of any roadside found syringes being affirmatively linked

to the Appellant and/or of being "related" to the indictment's alleged "offense"

of "Possession of a Controlled Substance", requiring the conviction to be rev

ersed and a judgement of acquittal renderred;

(3) the count I Aggravated Threat of a Public Servant conviction was

based on legally insufficient evidence of Appellant's use of a vehicle to

"threaten" Deputy Azwell., either based on the Deputy's false perjorious version

<3f the facts in trial, or based on the true version of the facts proven by

Appellant's "front-view" laser test photos submitted with this appeal, requiring

the conviction to be reversed and a judgement of acquittal renderred;

(4) the eouhtJH Evading Arrest arrest deadly weapon enhancement paragraph

affirmative finding of the use of a deadly weapon motor vehicle finding is

based on legally insufficient evidence of Appellant's driving actually endan

gering anyone, requiring deletion of the affirmative finding of a deadly weapon

from the Evading Arrest conviction's judgement;

(5) the count I Aggravated Threat of a Public Servant conviction is based

on legally insufficient evidence of Deputy Azwell "lawfully discharging" his

duty to arrest Appellant because, Deputy Azwell testified he jumped in front of

Martin's car from where he shot hinnthen jumped out of the way again obviously

to provide a subterfuge for justification of his shooting Appellant while un

armed, and THEN falsely testified to his being directly in front of Martin's

car driving straight at him when previously undisclosed State's evidence shows

Deputy Azwell was NEVER in front of Martin's car and in fact shot at Martin's

car at all times from the side of the car when he resulting shot Martin in

the chest, requiring reversl of conviction and rendition of an acquittal; and,

(6) five specific issues of ineffective assistance of defense counsel

in violation of USCA 6 & 14, in trial and on direct appeal.

See 06/23/2013 filed Original Motion for Rehearing, Table of Contents.

H15 On July 21,2014 Appellant timely filed his necessarily truncated

15 page Amended Motion for Rehearing, by jettisoning his Double Jeopardy argu

ments and severely condensing the remaining arguments, ibid. On July 24,2014,

the Court of Appeals "overruled" without written opinion Appellant's Amended

Motion for Rehearing. Appx.45. , Presumably, the Court of Appeals did not con

sider the merits of any issue Appellant raised in the amended motion. Rochelle

v. State,791 S.W.2d 121,124(Tex.Crim.App.1990)[cited in Hanby's, Texas Rules

of Appellate Procedure, Annotated,204(West 2011 ed.)].

1T16(1) On August 7,2014 Appellant timely filed a pro-se Motion for

En Banc Consideration of the panel decision to "overrule" the Amended Motion

for Rehearing, which itself was "overruled" on September 4,2014.Appx. 42 .

This motion reasserted the motion for rehearing's grounds for relief, but focus-

sed upon the suppressed "front-view" laser test photo showing Deputy Azwell

shot at Appellant from the side of his car and not from the front of the car

as Deputy Azwell falsely testified to in trial and bullet trajectory expert

CSI Wright suppressed during his testimony and the State knowingly failed to

correct when it appeared in trial in violation of Due Process.

(2) On August 14,2014 Appellant served a pro-se Motion to Abate

Appeal and Remand to the Trial Court for Fact Findings regarding his submitted

"front-view" laser test photo evidence undisclosed or suppressed in his trial,

for authentication, and a determination of it's implications for exonerative

purposes in the count I aggravated threat of a public servant by use of a deadly

weapon motor vehicle conviction and impeachment purposes for the counts I-III

charges and convictions. However, the Beaumont Court of Appeals Clerk's office

merely "received" this motion but did not file it so no decision was ever made

by the Court on it. This motion argued Deputy Azwell's perjorious motive for

falsely testifying was to "cover-up" his use of excessive force in shooting

Appellant in the chest through the side passenger window of Appellant's car

in order to arrest him while fleeing, and how this front-view laser test photo

indisputably shows the only shot the State argued came from the front of this

Appellant's car which went into the front hood clearly came from 80°-85° to

the side of Appellant's car, proving Deputy Azwell falsely testified he was

in front of Appellant's car when he commenced shooting at Appellant, and CSI

Wright suppressed the fact the laser test photos showed Deputy Azwell shot

into the front hood clearly from the side of Appellant's car. Relevant factual

findings were requested under Texas Rule of Appellate Procedure 44.4, LaPointe

v. State,225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.2007)(holding Rule 44.4 "is

designed to create a new record ... The key to Rule 44.4 is that there must

be an error that the appellate court can correct."), Spence v. State,758 S.W.2d

597,599-600(Tex.Crim.App.1988)(holding it is error to exclude the testimony

of the lead prosecutor, which would "obviously be particularly informative

on the deliberateness of the State's actions" when it is relevant to "the very

heart of the Due Process claim", abating and remanding for offer of proof or

to perfect a previously thwarted Bill of Exception) and Michaelwicz v. State,186

S.W.3d 601,613-14(Tex.App.-Austin 2006 reh'g ovr'Id,pet.refd,citations omitted)

The Court of Appeals made no decision regarding this motion to date.

(3) A duplicate Motion to Abate Appeal and Remand to the trial

Court for Fact Findings was filed in this Court under Case No.PD-1050-14 and

summarily "bEWED" without written opinion, presumably-not on it's merits since

the Beaumont Court of Appeals did not rule upon it in the first instance.

H17 This Court GRANTED previous motions for time extensions to file

the instant petition for discretionary review until October 24,2014, and again

until December 2,2014. On November 4,2014 the State's agent prison officials

confiscated from out of the incoming mail Appellant's completed copies of his

petition, exhibits and related documents to be filed in the instant case, by

claiming it was "written contraband", without citing any suspected criminal

or TDCJ rule offense as the basis for this confiscation event. Appellant then

informed this Court of these facts and this Court GRANTED another time extension

making the new deadline January 2,2015. As of December 15,2014 these PDR docu

ments were not returned yet, so Appellant filed another motion with the Court

and requested a summary ORDER to the State to return the confiscated PDR docu

ments to the intended recipient to protect this Court's jurisdiction to decide

the merits of this case.

xi

(g) Grounds for Review

1. APPEAL COUNSEL VIOLATED DUE PROCESS BY NOT ARGUING ANY MAJOR DEFENSE ISSUE

ARGUED TO THE. JURY IN FAVOR OF PRESENTING A SINGLE, DEFICIENT, MERITLESS

MINOR, MISTRIAL RULING ARGUMENT, OVER APPELLANT'S RECORD FILED OBJECTIONS:

post.,1-4 - see, 12/10/13 Appellant's Brief; 02-10-14 State's Brief; Appx.

29-30(trial counsel's affidavit),49-52(appellant's record filed objections)

and see, 7/21/14 Am.Mot.for Reh'g,4,13; Appx.45f(CCA "Overruled" decision);

"Supplemental Brief: the Pro-Se Identified Reversible Errors", 1-4 ("Supp.Brief")

2. APPEAL COUNSEL VIOLATED DUE PROCESS BY HAVING A CONFLICT OF INTERESTS

RESULTING IN HIS DISREGARD OF PERSUASIVE ALTERNATIVE DEFENSE APPEAL ISSUES;

post.,5-6 - see 7/21/14 Am.Mot.for Reh'g,4,14-15; Appx.45(COA "Overruled"

decision); Supp.Brief,4-5

3. THE' COURT OF APPEALS "OVERRULED" W/O WRITTEN OPINION DECISIONS ON THE

PRO-SE MOTIONS FOR REHEARING AND EN BANC CONSIDERATION BELOW, WERE AN

ABUSE OF DISCRETION GIVEN THE VIABILITY OF APPELLANT'A PRO-SE IDENTIFIED

ARGUMENTS AND AUTHORITIES, REQUIRING A VACATE AND REMAND TO THE COURT

OF APPEALS UNDER USCA 14, AND TEX.R.APP.P.47.1,49 & 66.3(f); post.,6-9

see, 7/21/14 Am.Mot.for Reh'g; 8/7/14 Mot.for En Banc Consideration; Motion

to Abate and Remand...; Appx.42,45(COA "Overruled" decisions); Supp.Brief,

1-34(demonstrating viability of pro-se identified reversible errors)

4. TRIAL COUNSEL VIOLATED USCA 6 BY EMPLOYING A STRATEGY OF POISENING THE

JURY WITH KNOWLEDGE OF APPELLANT'S PRIOR CONVICTIONS DURING THE GUILT

PHASE DESPITE. APPELLANT'S NEVER TESTIFYING IN THE GUILT PHASE, REQUIRING

REVERSAL AND REMAND OF ALL FOUR CONVICTIONS ; post.,4,9; Am.Mot.for Rehg,13

(citing R.R. ,2, pp. 14-18] ; Supp.Brief,3 117

5. THE COURT OF APPEALS ABUSED ITS DISCRETION CONTRARY TO DUE PROCESS, INTER

ESTS OF JUSTICE AND TEX.R.APP.P.44.2,49.2 BY NOT ORDERING THE STATE TO

RESPOND TO THE PRO-SE IDENTIFIED VIABLE CONSTITUTIONAL AND PROCEDURAL

ARGUMENTS: post.,11-13; 6/13/14 Orig.Mot.for Reh'g,1-57; 7/21/14 Am.Mot.

for Reh'g,1-16; 7/7/14 Mot.for En Banc Cons.; Appx.42,45,46(COA decisions

overruling motions for rehearing and en banc consideration and denying

exceeding page limits); Supp.Brief,27A

6. TRIAL COUNSEL VIOLATED USCA 6 BY OUTRAGEOUSLY FAILING TO EMPLOY THE STATE'S

"FRONT-VIEW" LASER TEST PHOTO EVIDENCE IN TRIAL TO PROVE DEPUTY AZWELL

FALSELY TESTIFIED APPELLANT WAS DRIVING "DIRECTLY" AT HIM WHEN SHOOTING

APPELLANT AND CSI WRIGHT SUPPRESSED THIS SPECIFIC EVIDENCE DURING TRIAL,

BECAUSE IT INDISPUTABLY PROVES THE DEPUTY SHOT AT APPELLANT FROM THE SIDE

OF THE CAR PROVING APPELLANT'S COUNT I INNOCENCE: post.,8-10; Appx.1-5

(testimony of Deputy Azwell and CSI Wright),7-9(State's and Defense's

closing jury arguments); R.R.,v.5,86-90; R.R.,v.6,14-21,155-171; R.R.,v.9,

82-83,96-112,114-16; Appx.31(suppressed "front-view" laser test photo),

32,(State's filed "side view" laser test photo exhibit); Appx.38-39, Mem.

Pp.,6-7(COA finds only Deputy Azwell's testimony supports the count I

conviction based on appellant driving "directly" at him); Supp.Brief,28-29 117

7. THE STATE PRESENTED FALSE TESTIMONY, SUPPRESSED EVIDENCE AND KNOWINGLY

FAILED TO CORRECT SAME WHEN IT APPEARED.; see Ground 6 above's record

cites; post.,11; Supp.Brief,20-31

xn

(h) Arguments

1. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED BY APPEAL COUNSEL'S

TOTAL DISREGARD IN THE APPELLANT'S BRIEF OF THE DEFENSES ARGUED IN

TRIAL TO THE JURY AND THE COURT OF APPEALS OVERLOOKING OF APPELLANT'S

TIMELY COMPLAINTS ON THE ISSUE, REQUIRING A VACATE AND REMAND ORDER

A. Due Process

Appeal counsel violated Appellant's rights to effective assistance of

appeal counsel contrary to Due Process, by not arguing the primary issues trial

counsel argued to the jury in this trial, which was an outrageous relinquish

ment of appeal counsel's duty to an indigent appellant represented by appointed

appeal counsel on direct appeal, forcing the instant Appellant to pursue pro

se motions for rehearings and en banc consideration after the Court of Appeals

renderred its predictable judgements against him. Evitts v. Lucy,469 U.S.387,396

(1985)(right to effective assistance of counsel, on state direct appeal, is

grounded in USCA 14's Due Process Clause); Garcia v. State,57 S.W.3d 436,440(Tex

Crim.App.2001)(approving of resolving ineffective assistance of counsel claims,

during direct appeal, when no competent attorney would have engaged in such

record based •:-\$.f!'ficient performance of counsel); Rudd v. State,616 S.W.2d 623,

624-25(Tex.Crim.App.1981)(approving of reviewing pro-se complaints of appeal

counsel's appellant's brief, in "the interests of justice"); Martinez v. State,

163 S.W.3d 88,89-91(Tex.App.-Amarillo 2004)(applying Rudd, to grant procedural

relief),appeal after remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005)(granting sub

stantive relief, reversing conviction, remanding for new trial); Rodriguez v.

State, 129 S.W.3d 551,562-64(Tex. App.-Hous. [1 Dist. ]2004, reh'g denied, PDR refd)

(.after appointed appeal counsel argued numerous meritless issues obtaining

an affirmance of aggravated robbery conviction and 25 yr. sentence, this writer

assisted pro-se this appellant, filing motion for prehearing, arguing appeal

counsel was ineffective for .not arguing no evidence appellant knew his partner

had a concealed weapon on him when he entered or exited the convenience store,

rev'g and acquitting for legal insufficiency w/o ruling on ineffective assist

ance ,of appeal counsel claim).

B. The Court'of-..Appeals Abused It Vs Discretion By .Not Addressing

the Merits of Appellant's Timely Filed Complaints About Counsel

The Court of Appeals did not-respond to the merits of Appellant's timely,

pre-submission, March 17,2012 filed complaints about appeal counsel's incompet

ent, meritless, boilerplate appeal brief that ignored major trial issues.

See supra., Procedural History,§(f) ,11119-11. Compare, 12/10/)3 filed Appellant's

Brief, with, 02/10/14 filed State's Brief. Appeal counsel argued in one issue

the trial court erred by failing to grant a mistrial when the State referred

to Appellant's prior convictions unrelated to the current matter while cross

examining a defense witness. The State's response was there was no error because

trial counsel did not object to the State's having previously introduced police

interview CD video evidence • of Appellant admitting to police when the offenses

were committed he was "on drugs" and "on thirty years parole", and also that

trial counsel had already informed the entire jury pool during voir dire that

Appellant had a "rap sheet" of "prior, convictions" which likely even trial

counsel would not be able to overcome. See 02/10/14 filed State's Brief,5-7.

On March 17,2014 Appellant timely filed a pro-se motion complaining about

appeal counsel's "only argument" omitting major trial defense issues that should

have been argued. See Appx.49-52 - 03-17-14 filed Pro-Se Motion,l-4(w/att'd,

clerk stamped copy of Appellant's letter to appeal counsel). Appellant complain

ed about appeal counsel's refusal to provide him with copies of the appellate

record to actively assist appeal counsel with thus preventing Appellant from

receiving a meaningful appeal by being unable to point to error in the trial

record, smd appeal counsel's "non-meritorious argument that the State elicited

Appellant's prior convictions ... without even discussing — defense counsel

employed this tactic by inviting such error — mak[ing] appeal counsel's effort

seem like the boilerplate work of hacks — like the equivalent of an Anders

brief [see, Jiminez v. Quarterman,129 S.Ct.681,683-87(2009) for discussion

of direct appeal "Anders-briefs"] without the constitutionally protected right

to file a pro-se brief — which may be the point" of appeal.counsel's invidious

strategy in the case at bar. id.; see also, related pro-se motion's objections,

filed April 23,2012, April 30,2012 and May 8,2012. "Appeal counsel Mr. Allen

refused to present and argue anything for [Appellant] Martin at his request'.

See, 07/21/14 filed Amended Motion for Rehearing,4

Trial Counsel Mr. Boyd executed an affidavit declaring he called and went

to see appeal counsel Mr. Allen many times' but was disregarded; Mr. Allen "did

not even have the good sense or courtesy or even the interest of his client

to consult" with Mr. Boyd, and Mr. Allen had "no excuse for not raising some

if not all of the errors in trial" Mr. Boyd preserved. See Appx.29-30, Affidavit

of Walter Boyd,1-2.

On May 21,2014 the Court of Appeals affirmed the trial court's judgements,

rejecting appeal counsel's single issue erroneous mistrial ruling claim, by

adopting one of two State's rebuttal arguments, that trial counsel failed to

object to previously introduced State CD video evidence showing Appellant ad

mitting to police at the time of the offenses he was "on drugs" and "on thirty

years parole", making the State's later raising of these issues "cumulative"

hence "not prejudicial". See Appx.36-7, Mem.Op.,4-5. The Court did not discuss

the State's other argument's merits, that trial counsel essentially poisened

the entire jury pool by admitting during voir dire that Appellant had a "rap

sheet" of "prior convictions" suggesting, as the State put it, "a less than

perfect past" which is an understatement. 02/10/14 filed State's Brief,6-7,9. (

Appellant briefed the issues he sought to have reviewed on appeal, in

his 6/13/14 filed 57 page original Motion for Rehearing, July 21,2014 filed

15 page Amended Motion for Rehearing, his 8/7/14 filed Motion for En Banc

Consideration, and his 8/14/14 received Motion to Abate Appeal and Remand to

the Trial Court, which the court of appeals denied the original motion for

rehearing for being overlength on 6/26/14, "overruled" without written opinion

the amended motion for rehearing on 7/24/14, "overruled" without written opinion

the motion for en banc consideration on 9/4/14, and received but never ruled

at all on the motion to abate appeal and remand to the trial court. A duplicate

motion to abate appeal and remand to the trial court was filed in the TCCA

under Case No.PD-1050-14 and "DENIED" without written opinion, presumably on

the basis of the court of appeals never filing and ruling on it's duplicate

filed motion.

Arguments

The Court of Appeals abused it's discretion by failing to conduct a hearing

for Appellant when he first raised the issues of appeal counsel's deficient

performance in Appellant's 3/17/14 filed motion. The Texas Court of Criminal

Appeals and the courts of appeals have uniformly held a court of appeals will

consider pro-se contentions raised in a brief on appeal, even when represented

by an appeal counsel who has already filed a brief, in the interests of justice.

Rudd v. State,616 S.W.2d 623-624-25(Tex.Crim.App.1981); Martinez v. State,163

S.W.3d 88(Tex.App.-Amarillo 2004), appeal after remand, Martinez v. State,163

S.W.3d 92(Tex.App.-Amarillo 2005). In Martinez as in the case at bar, the appel

lant timely complained his appeal counsel had omitted issues that he should

have brought up in the appellant's brief, denying him effective assistance

of counsel on first appeal, requested the appeal be abated and that a copy

"of his transcripts" be sent to him. The Amarillo court of appeals, contrary

to the instant case, issued an abate and remand order directing the trial court

to conduct a hearing as to whether the appellant would be allowed to proceed

with his appeal pro-se, with another appeal lawyer or the same appeal lawyer,

id.,163 S.W.3d @ 89-91[applying, Rudd,supra.].

In the case at bar, Appellant also timely filed his identical Martinez

complaint in the Beaumont Court of Appeals on 3/17/14, also asking for copies

of his trial transcripts, and similarly asking to abate and remand the appeal

to a trial court for fact findings. Indeed, this Appellant went one step further

and timely filed extensive motions for rehearing and en banc consideration,

expressly outlining the substance of the pro-se arguments he would raise in

the Court of Appeals pro-se or otherwise if allowed to. These motions clearly

raise substantial arguments and supporting authorities implicating Due Process

concerns, the interests of justice and whether Appellant received a meaningful

appeal with the effective assistance of counsel. Robinson v. State,16 S.W.3d

808,813(Tex.Crim.App.2000)(vacating and remanding to court of appeals for con

sideration in the first instance of ineffective asistance of counsel claim);

accord, Garcia,57 S.W.3d @ 440. Different from Martinez, it appears that the

Beaumont Court of Appeals did not recognize any of Appellant's pro-se argument's

filed below, by it's "overruled" without written opinion decisions. See, Hanby's

Annotated, Texas Rules of Appellate Procedure, 204(West 2011)[citing, Rochelle

v. State,791 S.W.2d 121,124(Tex.Crim.App.1990)]. Once the TCCA recognizes the

underlying merits to Appellant's pro-se arguments and authorities, the Martinez

result should necessarily follow with a vacate and remand order directing the

Court of Appeals below to follow Martinez,supra.

Supporting this result is the fact that Appellant raised his right to

represent himself pro-se in the Court of Appeals, which went unaddressed. This

probably violated Tex.R.App.P.47.1 requiring a vacate and remand order itself.

Bledsoe v. State,178 S.W.3d 824,827-28(Tex.Crim.App.2005). In any case this is

"structural error", precluding harmless error analysis, and requiring •:automatic

reversal. Jiminez,129 U.S. @ 683-87; Anders,386 U.S.738; In re Schulman,252

S.W.3d 403,408(Tex.Crim.App.2008); Bledsoe,178 S.W.3d @ 826-28; Martinez, 163

S.W.3d @ 89-91. This alone requires a vacate and remand result.

Ultimately supporting reaching this result is the substance of appeal

counsel's single issue appeal argument, compared to the State's easily accom

plished further research ANY competent appeal counsel could and should have

done himself, reveals a clearly unsound appeal argument strategy being employed.

Appeal counsel's facts supporting his meritless mistrial ruling argument,

together with the easily accomplished additional research on the issue done

by the State, could and should have been combined to argue trial counsel employ

ed a clearly unsound trial strategy of revealing to the entire jury pool during

voir dire deliberately before a decision had even been made whether to allow

Appellant to testify (he ultimately did not testify in the guilt-innocence phase)

and by not objecting to the State's putting on CD video evidence showing the

Appellant admitting to police he was on thirty years parole a fact finding

already made. Appx.36-37 - Mem.Pp.,4-5. Now, this clearly unsound trial strategy

is independantly ineffective assistance of counsel, even without considering

the totality of other circumstances involved that contributed to trial counsel's

deficient performance on the record. Thus, by also now adopting as fact that

trial counsel poisened the entire jury pool with knowledge of Appellant's prior

convictions, by the time of the jury panel's hearing from appellant he was

on parole for thirty years, without objection from trial counsel, trial counsels

voir dire announcement to the trial court that he had a "strategy" for doing

this, proves itself to be clearly unsound. It was outrageous for trial counsel

to invite the jury to know Appellant had prior convictions, then not even

use . Appellant's testimony in the guilt phase at all, revealing a caselaw certi

fied showing of a meritorious record-based, direct-appeal argued, ineffective

assistance of counsel claim. Robertson v. State,187 S.W.3d 475(Tex.Crim.App.

2006)(affg deficient performance finding, remanding for prejudice analysis),

on remand, Robertson v. State,214 S.W.3d 665,667-68(Tex.App.-Waco 2007 no pet.)

(IAC holding finding the jury heard evidence about two prior convictions "that

the State would not have been able to develops without Robertson's counsel

'opening the door' to such testimony.") Stone v. State,17 S.W.3d 348,352-53(Tex.

App.-Corpus Christi 2000)(IAC holding, finding trial record sufficient to show

IAC based on trial counsel's offering of prior conviction that would not have

come in otherwise, relying on record from vior dire and a bench conference)

Johnson v. State,172 S.W.3d 6, (Tex.App.-Austin 2005)(IAC holding where

trial counsel's failure to object to admissability of video evidence was factor)

In the case at bar, the Appellant suffered the same, if not moreso, deficient

performance of counsel. Moreover, the Appellant here suffered more severe pre

judice than in these cases, given the jury found him guilty as charged in four

felony counts, and then the jury issued the maximum sentences allowed by the

trial court of three life sentences, and one twenty year sentence. Therefore,

all four convictions and sentences must be reversed and remanded to the trial

court for a new trial. Strickland v. Washington,466 U.S.668,694(1984); Robertson,

214 S.W.3d @ 668-69; Stone,17 S.W.3d @ 352-53; Lyons v. McCotter,770 F2d 529,534

(5th Cir.1985)[quoting, Nero,597 F2d @ 994].

In sum, because appeal counsel disregarded all major trial issues in the

appellant's brief in favor of a non-meritorious single issue in itself a case

of deficient performance on the recerd, because Appellant timely complained

to the Court of Appeals on the record of being denied effective assistance

of counsel on appeal, because Appellant indicated he sought to represent himself

on appeal, and because the Court of Appeals did not rule on the merits of any

complaint or argument Appellant presented to the Court of Appeals, the interests

of justice 3»*3 Due Process concerns require this case to granted PDR, vacating

the judgements of the Court of Appeals, and remanding to that Court for an

application of Martinez,supra. to this Appellant's appeal, i.e., directing

a Court of Appeals' abate and remand to the trial court order for fact findings

on whether Appellant should proceed with a new appeal pro-se or with assistance

of a new appeal counsel. USCA 14; Evitts,469 U.S. @ 396; Martinez,163 S.W.3d

@ 89-91(applying, Rudd,616 S.W.2d @ 624-25); accord, Rodriguez,supra.

O Appeal Counsel Had an Actual Conflict of Interests in Representing

Appellant, ar>d'.-Mtffmcpmery County Before, During and After the Appeal

Facts

Attorney Mr. Christopher Neal Allen was appointed as appeal counsel due

to Appellant's indigency. OR.,235(notice of appeal signed by Mr. Allen); R.R.,

v.l3,pp.5-9,13,18-20(trial judge states to trial counsel she is going to appoint

Mr. Allen as appeal counsel); R.R.,v.l4,pp.21,71(trial judge appoints Mr. Allen

as appeal counsel during motion for new trial); and see, Appx. - 11/01/13

Order (Beaumont court order is directed only to Mr. Allen). According to the

2012 and 2014 Texas State Bar Directories, in 2010 Mr. Allen was an assistant

county attroney for Montgomery County, and in 2014 Mr. Allen was an assistant

district attorney for Montgomery County. Montgomery County is the political

subdivision of Texas that brought the instant felony prosecutions in this case.

Mr. Allen filed his appellant's brief on December 10,2013, nominally co-authored

by attorney Jeremy Finch, apparently for the purpose of staving off any inde

pendent official inquiry into Mr. Allen's apparent conflict of interests given

his extensive and significant prior and subsequent representation of Montgomery

County as county and district attorneys. On this record, Mr. Allen never recused

or removed himself from representing the Appellant at any point in this appeal,

raising the spector of Mr. Allen representing both the prosecution inUtoitgomery

County as assistant district attorney, and the Appellant as defense appeal

counsel, from the start of 301# through the case's submission on March 31,2014,

up to the case's affirmance on May 17,2014..

Argument

When confronted with possible attorney conflicts of interests, a criminal

court must take adequate steps to ensure the defendant receives a fair trial,

or in the case at bar a fair appeal, which if not respected requires reversal

of conviction. Wheat v. U.S.,486 U.S.153,160-62(1988). The U.S. Constitution

confers a right to effective assistance of conflict-free counsel. Perillo v.

Johnson,205 F3d 775(5th Cir.2000). An !!actual conflict" exists when defense

counsel is compelled to compromise his duty of loyalty or zealous representation

of the accused, by choosing between or blending divergent or competing inter

ests of his client, id. @ 781. An "adverse effect" is established by evidence

that a plausible alternative defense strategy or tactic could have been pursued

but was not, requiring "prejudice" to the appellant to be presumed, id. @ 781-82

Where defense counsel's prior representation involves a formal and substantial

attorney-client relationship, a finding of "actual conflict" is more likely.

The question turns on whether the character and extensiveness of the prior

representation was such that counsel was prevented by his competing interest

in the welfare of the prior client, from vigorously promoting the welfare of

the current client, id. @ 799. In the case at bar, it is argued that the record

shows Mr. Allen "nefariously chose to compromise his efforts" by throwing this

appeal to the lions, in favor of his main employer in life Montgomery County.

Clearly, Mr. Allen has an extensive and formal attorney-client relation

ship with ffentgomery County, before, during and after this appeal was adjudi

cated. Even assuming Mr. Allen was not representing Montgomery County during

2013, this record raises the neferious inference that Montgomery County rewarded

Mr. Allen after throwing this case to the lions, by promoting him from assist

ant county attorney to assistant district attorney. Outrageously, Mr. Allen

did not withdraw from the appeal but continued to remain as appointed aqp^-sl

in 2014 while he was an assistant district attorney, through the appeal's sub

missions on March 31,2014 and affirmance decision on May 21,2014. Had ANY court

official told Appellant he was being appointed as appeal counsel a Montgomery

County criminal attorney whose main client in life was Montgomery County, this

Appellant would have objected on the record. •Butj.Montgomery County officials

kept Appellant in the dark about Mr. Allen's divided loyalties, and probably

for furthering the chances of obtaining a affirmance of Appellant's convictions.

There can be no doubt that Mr. Allen deliberately lost this appeal, when you

compare trial counsel's affidavit declaring Mr. Allen failed to pursue ANY

trial defense issues he preserved on the record and Appellant's pro-se motions

for rehearing and en banc consideration arguable issues that should have been

presented on appeal, with Mr. Allen's single issue, meritless, boilerplate

appeal argument. This shows plausible alternative defense appeal arguments

that could have been presented but were not, requiring constitutional prejudice

to be presumed. The unjust, nebulous inference is that Mr. Allen chose Mont

gomery County over this Appellant, in crafting his appellant's brief and/or

in the manner in which he represented Appellant in this appeal, adversely effect

ing (if not totally negating) Appellant's Due Process rights to effective assis-

ance of conflict free counsel on direct appeal and to a meaningful appeal that

reviewed HIS trial court defenses and strategies.

Therefore, Due Process concerns, and the interests of justice, require

this Court to grant Appellant an opportunity to be heard on the merits of his

appeal arguments and authorities in a new direct appeal proceeding, by a return

to the Beaumont Court of Appeals for further proceedings,: with rebriefing and

such other relief as is required by the Court. USCA 14.

0. The Court of Appeals' "Overruled" Decisions on the Pro-Se Motions

for Rehearings and for En Banc Consideration, Were an Abuse of

Discretion, Requiring a Merits Review of the Pro-Se Issues

Facts

On June 13,2014 Appellant timely filed a pro-se 57 page Motion for Rehear

ing and Motion to Exceed the Page limit, but on June 26,2014 the Court of Ap

peals DENIED the motion to exceed page limits and sua sponte extended the time

limits for filing motion for rehearing until July 21,2014. Appx.46. in

this original motion for rehearing, the following issues were raised:

(1) the counts I and II convictions violated the Double Jeopardy prohibit

ion against multiple punishments, for the same continuous act of evasive driv

ing at issue, requiring the count II conviction to be vacated;

(2) the count III conviction is based on legally insufficient evidence

any roadside found "syringes" were "related to the offense" of "possession

of a controlled substance" and/or were "affirmatively linked" to Appellant,

requiring the count III conviction to be reversed and renderred an acquittal;

(3) the count I conviction is based on legally insufficient evidence

of Appellant's use of a vehicle to "threaten" Deputy O Azwell, based on the

deputy's false testimony that Appellant drove directly at the deputy as proven

by the previously undisclosed "front-view" laser test photos submitted with

this appeal showing the deputy shot at Appellant at all times from the side

of Appellant's car, requiring the conviction to be reversed and an acquittal;

(4) the count II conviction is based on legally insufficient evidence

of Appellant's use of his vehicle as a "deadly weapon", requiring deletion

of the deadly weapon affirmative finding from the trial court's judgement;

(5) the court I conviction is based on legally insufficient evidence

of Deputy Azwell lawfully discharging his duty to arrest, either based on his

trial testimony of jumping in front of Appellant's already moving car to shoot

Appellant and jumping out the way again in 2 seconds, or falsely testifying

Appellant was driving directly at him when he shot at Appellant proven by pre

viously suppressed State's "front-view" laser test photo evidence indisputably

proving Deputy Azwell shot at Appellant at all times from the side of his car,

requiring reversal of conviction and acquittal; and,

(6) five specific issues of ineffective assistance of trial and appeal

counsel contrary to USCA 6 & 14, requiring reversal of all convictions and

remand for a new trial on all counts.

See, 6/23/13 filed Original Motion for Rehearing,1-57

On July 21,2014 Appellant filed his necessarily truncated 15 page version

of his arguments and authorities in an Amended Motion for Rehearing, forced

by the Court's decision to deny his motion to exceed the page limits to jettison

his Double Jeopardy claims and severely condensing his remaining arguments.

On July 24,2014 the Court of Appeals "overruled" without written opinion the

Appellant's Pro-Se Amended Motion for Rehearing. Appx.45 . Additionally, the

Appellant also filed a Pro-Se Motion for En Banc Consideration, essentially

reasserting his rehearing arguments but focussing upon Deputy Azwell's having

fals<% testified in trial to cause his count I conviction, acting in concert

with police and prosecutorial suppression of "front-view" laser test photos

that indisputably prove the perjury and suppression of evidence. On September

4,2014, the Court of Appeals "overruled" without written opinion the Appellant's

Pro-Se Motion for En Banc Consideration. Appx. 42. - As a matter of law, the

Court of Appeals' decisions on the motions for rehearing and en banc considera

tion, did not consider the merits of any issue Appellant raised pro-se. See,

Rochelle v. State,791 S.W.2d 121,124-25(Tex.Crim.App.1990). ' "

Argument •_.--•

In the case at bar, Appellant is entitled to return to the Court of Appeals

for an actual decision on the merits of the issues he tried to raise pro-se

below under Tex.R.App.P.47.1 ("The court of appeals must hand down a written

opinion that is as brief as practicable but that addresses every issue raised

and necessary to final disposition of the appeal."). In Sotelo v. State,913

S.W.2d 507(Tex.Crim.App.1995) the TCCA distinguished Rochelle,supra, as a case

where nothing prevented movant from arguing in it's brief on original submission

his rehearing claim, noting in Soteldte case at the time of original submission

to the court of appeals there was no justiciable claim to assert and the motion

for rehearing was thus the "earliest opportunity" he had to raise his claim,

under the facts of Sotelo's case. id. @ 509. The TCCA held the denied without

written opinion decision did not address the merits of the claim therein, the

complaint about the propriety of that decision was properly preserved in a

motion for rehearing or a petition for discretionary review, the ."viable"

constitutional claim was incorrectly not considered by the court of appeals,

and issued a vacate and remand order to the court of appeals for a decision

on the merits in the first instance, id. @ 508-10. Sotelo applied the predecces-

sor to Rule 47.1 of Tex.R.App..90(a). Sotelo, @ 509. The. language of "issue

raised and necessary to final disposition of the appeal" is identical. Hence the

Sotelo result should occur in the instant Appellant's case.

Rule 47.1 applies not only to constitutional arguments under Sotelo and

Rochelle, but also to courts of appeals decisions that do not discuss the evi

dence an appellant argued best supported his constitutional claim. Sims v.

State,99 S.W.3d 600,601(Tex.Crim.App.2003). The TCCA reviewed the court of

appeals' discussion of the evidence, specific taped evidence pointed to by

the appellant, id. @ 601-02, the appellant's brief and motion for rehearing

arguments on the evidentiary issues pointed to, _id. @ 602-03, reviewing the

taped evidence pointed to, concluding they contained relevant evidence to the

contested issue and held the court of appeals should have mentioned its consid

eration of this important evidence that appellant asserted undermined the jury's

verdict. The TCCA remanded to the court of appeals, to consider this "important

evidence ... crucial to the claim" under Tex.R.App.P.47.1 id. @ 603-04: accord,

Light v. State,15 S.W.3d 104-106-07(Tex.Crim.App.2000)(applying Rule 47.1 on

PDR to vacate and remand to court of appeals).

In the case at bar, appeal counsel prevented Appellant from raising any

issue he believed should have been.;included in the appellant's brief, which

a review of the arguable issues Appellant raised pro-se in his motions filed

below reveal, compared to appeal counsel's single issue arguments presented.

The instant complaint about the propriety of the court of appeals decisions

below that did not rule on the merits of his arguments that counsel was being

ineffective contrary to USCA &4 and Appellant's briefed,"viable" constitutional

issues on the appellate record and the PDR record being arguable and substantial

demonstrate that the Court of Appeals abused it's discretion, by never ruling

on the merits of complaints. Under Sotelo,supra., a vacate and remand order

is required in the exercise of the TCCA's supervisory capacity and in the inter

ests of justice. 913 S.W.2d @ 509[citing, Rochelle,supra.]; Perkins v. State,

905 S.W.2d 452,453(Tex.App.-El Paso 1995)(same).

Additionally, the court of appeals abused it's discretion by not ruling

on the merits of Appellant's submitted, previouslylunknown;.to" him or suppressed,

"front-view" laser test photo State's evidence which shows Deputy Azwell in

trial falsely testified that Appellant was driving directly at him and he was

directly in front of Appellant's car, when he shot at Appellant, by indisput

ably showing all three of Deputy Azwell's shots came from the side of Appellants

car, including the contested bullet hole in the front of Appellant's car which

the State's bullet trajectory expert testified came from the front of the car

essentially falsely testifying as well or at least suppressing the existence

within his knowledge of the "front-view" laser test photo results showing that

the contested bullet hole in the front hood of the car HAD to come from the

side of Appellant's car. The Court of Appeals did not even mention this crucial

State's evidence showing Appellant is actually innocent of the aggravated threat

of a public servant charge, which given the gravity of the Appellant's prima

facie showing of egregious prosecutorial misconduct in this case, requires

the Sims result to follow as well. 99 S.W.3d @ 601-04. A close look at the front

view laser test photo evidence, and the State's actually filed exhibits showing

the side view laser test photo evidence, appear to be the same car in the same

police garage going through the same bullet trajectory laser test procedures,

the only difference being the previously undisclosed or suppressed front view

photos show the bullet is definitely shot from the side of the car, where the

angle of the side view photos showing the same laser beam appear to be coming

front the front of the car but are really coming from the side of the car.

See Appx.31(suppressed "front-view"),32(State's Ex."side-view"); Brown,519 F3d @

237-38(strikingly similar circumstances of state crime lab tech's false testi

mony, suppression of evidence & civil rights conspiracy loss in qualified immun

ity setting). „

o

The TCCA should review the front view and side view laser test photo evidence,

conclude the front-view laser test photo result contains relevant evidence to

the Appellant's issues of false testimony, suppressed evidence and the State's

failure to correct false testimony when it appears, and remand to the Beaumont

Court of Appeals for consideration of this "important evidence ... crucial

to his claim" of false evidence, suppressed evidence, and failure to correct

false testimony when it appears in violation of Due Process, id. @ 603-04.

Appellant argues that the structural nature of the errors he has revealed

in his trial and appeal as having occurred, counsel this Court to apply Sotelo

and Sims to his case, reaching the same result of a vacate .and remand to

the Beaumont Court of Appeals order, with specific instructions applicable

to the facts of his case. Tex.R.App.P.47.1,66.l(f); ..USCA 14.

2. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,

BY EMPLOYING A STRATEGY OF POISENING THE JURY WITH APPELLANT'S PRIOR

CONVICTIONS DESPITE HIS NOT TESTIFYING IN THE GUILT PHASE, REQUIRING

-REVERSAL, OF ALL FOUR OF THE CONVICTIONS AND REMAND FOR A NEW TRIAL

Appellant incorporates by reference his internal argument he said appeal

counsel SHOULD HAVE MADE, to wit: a record based direct appeal ineffective

assistance of counsel argument. See infra.,§(g),1.B.

3. TRIAL COUNSEL VIOLATED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,

BY OUTRAGEOUSLY FAILING TO DISCOVER OR EMPLOY IN TRIAL THE STATE"S

"FRONTVIEW" LASER TEST PHOTO EVIDENCE TO PROVE THAT DEPUTY AZWELL

FALSELY TESTIFIED APPELLANT WAS DRIVING DIRECTLY AT HIM WHEN HE SHOT

HIM, AND TO PROVE CSI WRIGHT WAS SUPPRESSING THE EXCULPATORY NATURE

OF THE "FRONTVTEW" LASERTEST PHOTO EVIDENCE,COtTO^Y TO USCA 6,14

Facts -and Arguments

See supra.,§(f),K1Jl,4,16(related procedural history). The Court of Appeals

held only Deputy Azwell's testimony supported finding Appellant "tried to run

over him" while trying to continue "to evade arrest", and that this was why

Deputy Azwell "fired several shots at [Appellant] Martin's car when Martin

drove toward him", and "Martin's having driven directly at [Azwell] as the

chase was ending is not contradicted" in the record. See supra.,§(f),1113(2)

[citing, Appx.38-39, Mem.Op.,6-7]. Had the Beaumont Court of Appeals considered

Appellant's submitted "front-view" bullet trajectory laser test photo evidence,

the Court of Appeals ultimately would have had to conclude Deputy Azwell's

testimony that he only shot Appellant because he was driving directly at him,

is irrebutably contradicted as false and perjuorious testimony. See Appx.

31-32(suppressed "front-view" laser testphoto,compared to State Exhibit "side-

view"laser test photo).

In trial, when trial.'.counsel is crossexamining the State's bullet trajectory

reconstruction expert CSI Wright,it was undisputed two shots were fired from

the side of Appellant's car, one of which hit Appellant in the chest resulting

in Appellant's surrender. See Appx.1-5(excerpted testimony of Azwell and Wright)

CSI Wright testified Deputy Azwell's first shot went into Appellant's front

hood, going through it, and explained it's trajectory after going through the

hood, but only explained it's verticaltrajectory before going through the hood.

9

Trial counsel asked CSI Wright if Appellant's car was going 10-20 mph, could'nt

the front hood's bullet hole trajectory have come from the side of the car

like the other two shots did, which he dodged the issue of what does the laser

test photo results show where Deputy Azwell was located when he shot at Appel

lant (either beside or in front of the car) by testifying, "Sir, that's specu

lating on speed, and I could'nt make that type of speculation on it." Appx.4-

R.R.,v.6,ppl69-70. At this point trial counsel passed the witness and the State

asked no further questions. Appellant argues at this exact point trial counsel

outrageously failed to introduce the "front-view" laser test photos showing the

deputy shot into the front hood from the side of Appellant's car, very clearly

and indisputably. Appx.3-5 - R.R.,v.6,pp.155-71. Supporting the outrageousness

of this failure is the fact that trial counsel's final arguments to the jury

contend Deputy Azwell shot Appellant from the side of the car unnecessarily,

the deputy falsely testified he shot Appellant from the front of the car while

Appellant was driving directly at him to cover-up his excessive use of force,

the deuputy lacked credibility on this basis and this reasonable doubt was

further supported by the fact that CSI Wright "never did say what angle" horiz

ontally the front hood shot's bullet ^trajectory came from. Appx.7-9, Defense

Jury Arguments, R.R.,v.9,pp.96-108. Trial counsel's failure to further pursue

testimony on this issue in trial, and failure to produce the front-view laser

test photo "results and ask CSI Wright about1: their obvious exculpatory value

is a single instant of outrageously deficient performance of counsel for which

under the totality of the circumstances there exists no possible sound trial

strategy for pursuing. The front view laser photo result exonerates Appellant,

because they prove Deputy Azwell's testimony Appellant was driving directly

at him intending to run him over, was blatantly false, perjorious and revealingly

only supported by Deputy Azwell's testimony alone. Virtually all aggravated

assault on a public servant by use of a car cases show the appellant drove

his car directly at the police officer. See Supplemental Brief, Issue No.6,

Argument Bfciting, Dobbs,2013 Tex.App.LEXIS 3050(finding the car "accelerated

towards him. The officer fired his weapon as the car approached and then jumped

out of it's path just before it could strike him."); Dobbins,228 S.W.3d @ 765-66

(appellant drove directly at officer, then stopped at officer's direction,

then moved car forward striking officer); Whiddon,2007 Tex.App.LEXIS 916(finding

appellant "drove his truck toward the trooper, so that the trooper feared for

his life" and "would have hit the tropper if the trooper had not moved out

of the way ... only after the trooper shot out one of Whiddon's tires.");

Brown,2004 Tex.App.LEXIS 8479("appellant drove his vehicle directly at him

while he was standing outside his patrol car, forcing [him] to jump out of

the way to avoid being hit."); Miller,576 F3d @ 529-30(similar[l. The front-view

laser test photo completely exonerates Appellant as it shows Appellant was

NEVER driving directly at Deputy Azwell. Brown,183 S.W.3d @ 733(in aggravated

assault on public servant case, finding although officer was fairly close to

the vehicle as it passed him, there was no evidence the vehicle swerved in

any direction, suggesting appellant drove straight for the exit, holding it

was trial error to deny lesser included jury charge on reckless driving).

Accordingly, trial counsel was constitutionally ineffective in violation

of USCA 6 for failing to investigate the forensics of this shooting and use

the front-view laser test photo results to exonerate Appellant, Draughton v.

Dretke,427 F3d 286,296(5th Cir.2008), and failing to wring the truth out of

CSI Wright about his "front-view" laser test photo result. E.g., Brown v. Miller

519 F3d 231,237-38(5th Cir.2008)(state crime lab techIs false testimony, sup

pression of evidence, civil rights conspiracy strikingly similar situation).

See USCA 6; Strickland,466 U.S. @ 687-88,690; Johnson v State,169 S.W.3d 223,229-

30(Tex.Crim.App.20O5)(recognizing preservation of Brady issues below is oftenn* possible).

Therefore, as demonstrated hereinabove, because trial counsel ineffectively

argued the false testimony, suppressed evidence and State's failure to correct

the false testimony when it appeared issues in trial, because appeal counsel

refused to argued these issues in the Court of Appeals and because the Court

of Appeals when presented with these arguments pro-se didn't review them on

their merits, Appellant requests the TCCA find these issues arguable on their

merits, vacating and remanding to the Court of Appeals for their consideration

in the first instance. Tex.R.App.P.47.1,66.3(f); Robinson,16 S.W.3d @ 813;

Light,15 S.W.3d @ 106-07; Sotelo,913 S.W.2d @ 508-10.

Furthermore, Appellant requests this Court allow him, upon remand, to

file a supplemental brief to consolidate all the substantive issues he previous

ly tried to raise below but was preventted from raising and obtaining a ruling

on the merits on, in the interests of clarity, justice and the right to a mean-

inful appeal protected by Due Process, see Hanby's Annotated, Texas Rules of

Appellate Procedure,268[citing, Tex.R.App.P.68.2, Garrett v. State,749 S.W.2d

784(Tex.Crim.App.1988) and Carroll v. State,101 S.W.3d 454(Tex.Crim.App.2003)

(court of appeals was authorized on remand to reconsider a previous ruiing

on an issue not addressed by the Court of Criminal Appeals)], and to instruct

the Court of Appeals to order the State to file a response to the supplemental

brief consolidating the pro-se rehearing and en banc consideration issues under

Tex.R.App.P.49.2 governing responses to motions for rehearings. If any such

State response does NOT produce an agreement between the parties on the false

testimony, suppressed "front-view" laser test photo result evidence and other

prosecutorial misconduct arguments, then instruct the Court of Appeals to abate

the appeal and remand to the trial court for authentication and findings of

facts regarding the "front-view" laser test photo evidence after an evidentiary

hearing with Appellant represented by appointed counsel, followed by a Court

of Appeals decision on the merits of Appellant's supplemental brief arguments

and authorities under Tex.R.App.P.49.3.

4. THE STATE VIOLATED DUE PROCESS BY PRESENTING FALSE TESTIMONY THAT

APPELLANT DROVE DIRECTLY AT DEPUTY AZWELL, BY SUPPRESSING "FRONT-VIEW"

LASER TEST BULLET TRAJECTORY PHOTOS PROVING THE FALSE TESTIMONY,

AND/OR BY FAILING TO CORRECT THE FALSE TESTIMONY WHEN IT APPEARED

Appellant incorporates by reference his internal argument presented infra.,

§(g) 3, and as comprehensively presented at "Supplemental Brief: the Pro-Se

Identified Issues of, Reversible Error" also filed in this case.

5. THE COURT OF APPEALS ABUSED ITS DISCRETION CONTRARY TO DUE PROCESS

CONCERNS, THE INTERESTS OF JUSTICE AND CASELAW BY NOT ORDERING THE

STATE TO RESPOND TO THE APPELLANT'S PRO-SE MOTIONS FOR REHEARING

AND/OR EN BANC CONSIDERATION UNDER TEXAS RULES OF APP.PROC.47.1,49.2

Appellant incorporates by reference his procedural history in the Court

of Appeals, as stated infra.,§(f) HH12-16, including an outline of Appellant's

pro-se arguments pleaded in the Court of Appeals below, at id.,f1114-16.

Had the Court of Appeals ordered the State to file a response to Appel

lant's amended motion for rehearing or motion for en banc consideration, the

State might have admitted to a Due Process violation having caused the count I

aggravated threat of a public servant conviction, based simply on the strength

11

of their attached "front-view" bullet trajectory State's laser test photo's

compelling exculpatory value being squarely judicially placed before Montgomery

County prosecutors in this case. See, Lewis v. State,402 S.W.3d 852,855-56,865-

66(Tex.App.-Amarillo 2012),pet.granted, 2013 Tex.Crim.App.LEXIS 1526(10/23/13)(state

declined to respond under Tex.R.App.P.49.2, court granted relief under new

Supreme Court precedent, reforming "life without parole" to "life" sentence);

Reeves v. State,03-03-00490-CR,2004 Tex.App.LEXIS 6815(Tex.App.-San Antonio 2004

pet refd)(in Tex.R.App.P.49.2 response, State admitted to Double Jeopardy

violation, by Aggravated Assault on Public Servant and Aggravated Assault con

victions, vacating aggravated assault conviction)rCHC Honey Creek LLC v. Bexar

Appraisal District,04-11-00354-CV,2012 Tex.App.LEXIS 5458(Tex.App.-San Antonio

2012 no pet.)(after Tex.R.App.P.49.2 order to respond, parties agreed to with-

drawel of previous court opinion and for relief to be granted appellants; court

granted rehearing, withdrew previous opinion, then reversed and renderred judge

ment for the appellants). Given the structural nature of Appellant's arguements

on the merits of his pro-se issues of constitutional reversible error, as brief

ed in the Supplemental Brief for this Court's convenience, and the fact that

the record supports Appellant's pro-se demonstration of false testimony by

Deputy Azwell the primary witness against him, of suppressed front-view laser

photo evidence by. nefarious CSI testimony, and the State's failure to correct

false testimony once it appeared, Due Process concerns and the interests of

justice should compel this Court to consider Appellant's previously undisclosed

or suppressed "front-view" laser test photo evidence under Sotelo,913 S.W.2d

@ 508-10 and Sims,99 S.W.3d @ 601-04. And see, cf: Perkins v. State,902 S.W.2d

88,102(Tex.App.-El Paso 1995), supplemental opinion, 905 S.W.2d 452,452-43(Tex.

App.-El Paso 1995 pet refd)(claim of perjured expert witness testimony about

a scientific study attached to motion for rehearing for first time; rejected

for not being part of the record and for finding no support in the record other

wise; on supplemental opinion the court held it could take judicial notice

of the purported study because under Rochelle,791 S.W.2d @ 124-25 it had dis

cretion to consider new matter raised for the first time in a motion for re

hearing in the interests of justice or due process concerns, but would'nt under

the attached study's weakness as evidence); State v. Fury,186 S.W.3d 67,73-

74(Tex.App.-Hous.[lst Dist.]2005)(Brady claim of withheld photo evidence was

rejected, but holding previously undisclosed Brady material photo evidence,

must support Appellant's trial and appeal arguments, must be material, and

must demonstrate the photo would probably cause a different result in another

trial, to be considered in a direct appeal setting). After all, it is a State's

duty or obligation under the Due Process Clause of the 14th Amendment to the

United States Constitution, when confronted with false or perjorious State

witness trial testimony and misleading evidence, to correct the false or mis

leading testimony or evidence at that time. Tassin v. Cain,517 F3d 770,778-

79(5th Cir ...2003). Vasquez v. State,67 S.W.3d 229,239 & nn-19-20(Tex.Crim.App.

2002); Ex parte Adams,768 S.W.2d 281,291(Tex.Crim.App.1989).

In the case at bar, once the State is ordered to respond to the merits

of Appellant's rehearing and en Dane consideration motions as consolidated

into the Supplemental Brief filed in this case, arguably Due Process would

require the State to admit the attached "front-view" laser test photo evidence

is 'authentic, and their contents clearly show, reasonable doubt exists as

to Appellant's threatening Deputy Azwell by driving his car "directly" at him

when he shot Appellant because the "front-view" laser test photo clearly and

indisputably show Azwell's shot into the front nood came from the side of the

12

Appellant's car and not from the front of Appellant's car as Deputy Azwell fal

sely and pEcjoriously testified to in trial. Alternatively, the State could file

a response to the instant petition for discretionary review that accomplishes

the_ same Due Process obligation and duty of the State to admit to the false,

perjorious testimony of Deputy Azwell, to admit to CSI Wright's suppression

o; his knowledge of the "front-view" laser test photo evidence obvious exculpa

tory value when he testified in trial, and to take corrective action to repair

the damages to Montgomery County's judicial integrity by agreeing to a reversal

and acquittal judgement in the count I aggravated threat of a public servant

charge, and a reversal and remand for a new trial on the remaining charges due

to the jury being entitled to hearing Deputy Azwell, the main witness against

the Appellant, falsely testified so as to cause the count I conviction, hence

having severely damaged credibility that the jury never got to consider.

SHOULD THE-STATE DENY Appellant's facts claims that the "front-view" laser

test photo evidence suppressed in trial shows Deputy Azwell falsely testified

causing the count I conviction, CSI Wright fabricated or suppressed his laser

test results so as to not have to testify about the "front-view" laser test

photo results showing Deputy Azwell shot into Appellant's car at all times

from the side of the car, and the State knowingly failed to correct false test

imony when it appears, requiring reversal of all convictions, rendition of

a judgement of acquittal on count I and a new trial on counts II,III & iv,

a

THEN APPELLANT RESPECTFULLY REQUESTS this Court direct the Court of Appeals

to abate the appeal and remand the case back to the trial court for fact find -

ings relevant to the prosecutorial misconduct issues raised, after an eviden

tiary hearing conducted by appointed counsel or original trial counsel Walter

Boyd representing the Appellant, for the purposes of establishing the authen

ticity of the "front-view" laser test photo evidence, what their contents prove

about Deputy Azwell's and CSI Wright's trial testimony, and then returned to

the Court of Appeals for judgement. See Tex.R.App.P.44.4; LaPointe v. State,

225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.2007)(holding an abate and remand

order is appropriate under Rule 44.4, which "is designed to create a new record

... The key to Rule 44.4 is that there must be an error that the appellate

court can correct."); Spence v. State,758 S.W.2d 597,599-600(Tex.Crim.App. 1988)

(holding it was error to exclude testimony of lead prosecutor, which would "ob

viously be particularly informative on the deliberateness of the State's actions"

when it is relevant to the vert heart of the Due Process claim; abating and

remanding so appellant can make an offer of proof or perfect a thwarted bill

of exception); Michaelwicz v. State,186 S.W.3d 601,613-16(Tex.App.-Austin 2006

reh'g ovr'ld, pet.refd, citations omitted) (motion for ex parte trial court

hearing to inspect police report for alleged exculpatory or material evidence

value, intended to invoke Brady protections, held to be a proper procedural

device to invoke in a direct appeal); Prudhomme v. State,28 S.W.3d 114,119-

20(Tex.App.-Texarkana 2000)(holding trial court error when combined with inef

fective assistance of counsel in motion for new trial issue, when asserted

pro-se seeking relief on the record, will be remedied by an abate and remand

order, reinstating the motion for new trial); McKee v. State,2012 Tex.App.LEXIS

2421 at **19-21(Tex.App.-Dallas 3-28-12)(on court's own motion, abating and

remanding for written findings and conclusions whether videotaped statements

to police were voluntary, then expressly ruling against appeallant on issue),

pet, refd, In re McKee, 2013 Tex. Crim. App. LEXIS 166(1-30-13).

13

(i) Prayer for Relief

Appellant respectfully prays that this Court will GRANT the petition,

GRANT leave to file the "Supplemental Brief: the Pro-Se Identified Reversible

Errors", HOLD the Court of Appeals abused it's discretion by it's "overruled"

decisions on Appellant's pro-se motions filed below because they presented

viable oK-racguable constitutional claims, GRDER the Court of Appeals affirmed

oecision of May 21,2014 VACATED AND REMANDED for a decision on the merits of

Appellant s rehearing motion's constitutional claims as clarified in his "Sup

plemental Brief:..." in the first instance, ORDER the State to file a response

under Tex.R.App.P.49.2 and absent an agreed resolution to this appeal between

the parties thereafter INSTRUCT the Court of Appeals to abate the appeal and

remand to the trial court under Martinez,163 S.W.3d 88 to determine if Appellant

will continue pro-se or with new appointed appeal counsel in subsequent appeal

proceedings, and under Tex.R.App.P.44.4 for an evidentiary hearing with newly

appointee- trial defense counsel for a determination of the authenticity, con

tents and facts relevant to the "front-view" laser photo test results evidence

and their implications to the testimony of Deputy Chris Azwell and State's

expert Mark Wright and the State's prosecutor's conduct in this trial, followed

by trial court fact findings.

Alternatively, Appellant respectfully prays that this Court will GRANT

the petition, set the case for submission and appoint appeal counsel to repre

sent the Appellant in those proceedings, and/or such other relief as law and

justice requires.

CERTIFICATE OF SERVICE

I certify and affirm placing a true and correct copy of this petition

for discretionary review into the prison mailbox on December 24,2014 addressed

to: (1) Abel Acosta, Clerk, Texas Court of Criminal Appeals, P.O. Box 12308,

Capitol Station, Austin, Texas 78711-2308; (2) Carol Anne Harley, Clerk, Ninth

Court of Appeals for Texas, 1001 Pearl St., Beaumont, Texas 77701; (3) the

State Prosecuting Attorney, Price Daniel Sr. Bldg., 209 W. 14th St., Rrn.202,

Austin, Texas 78711; (4) attorneys Jason Larrnan and Chris Allen, Montgomery

County District Attorney's Office, 207 W. Phillips, 2nd Fl., Conroe, Texas

Respectfully Submitted,

Peter James Martin

tdej-cid #1846003

Stiles Unit 3060 FM 3514

Beaumont, TX 77705

14

PD-1050-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

COA 09-13-O0180-CR,09-13-00181-CR,09-13-00182-CR,09-13-00183-CR

PETER JAMES MARTIN, Appellant, §

§ From the 221st Judicial District

v.

§ Court of Montgomry County, Texas,

§ trial Cause Number 12-03-02604-CR

THE STATE OF TEXAS, Appellee, §

MOTION FOR LEAVE TO FILE "SUPPLEMENTAL BRIEF: THE PRO-SE

IDENTIFIED REVERSIBLE ERRORS"

This is a petition for discretionary review ("PDR") proceeding, in which

Appellant complains about his rights to Due Process were violated by appointed

appeal counsel's total disregard in the appellant's brief of the major defenses

argued to his jury in trial, and the Court of Appeals not ruling on his timely

filed complaints about counsel's brief and on the merits of his motion for

rehearing and en banc consideration procedural and substantive arquments showing

reversible error. See PDR Brief,ii(listing 5 arquments and sub-claims),vii(list-

inq 7 grounds for review). The Court of Appeals "overruled" Appellant's motions

for rehearing and reconsideration, which is not a rulinq on the merits presum

ably. Id.,x-xi[citing, Rochelle v. State,791 S.W.2d 121,124(Tex.Crim.App.1990) &

Hanby's Annotated, Texas Rules of Appellate Procedure,204(West's 2011 ed.)].

Appellant argued appeal counsel below presented only one deficient, minor,

meritless mistrial ruling argument, which omitted the major issues from his

trial that should have been brouqht up in the appellant's brief, denying him

effective assistance-of counsel on first appeal, requesting copies of his trial

transcripts, and moving for an abate and remand order for trial court fact

findings on these omitted appeal issues. Id.,3[citing, Rudd v. State,616 S.W.2d

623,624(Tex.Crim.App.1981) and Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo

2004)(applying Rudd's "interest of justice" clause to abate and remand case

to trial court), appeal after remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005)

(rev'g & rem'dg for new trial). The interests of justice can't frankly be invok

ed without some kind of pro-se written demonstration of reversible error that

appointed appeal counsel did not pursue over objections. See e.g., Sotelo v.

State,913 S.W.2d 507,509-10(Tex.Crim.App.1995)("...constitutional restraints

such as due process ... may ... compel the consideration of a new matter raised

for the first time on motion for rehearing", comparinq PDR cases that proceeded

to the merits to those that did not, and sayinq "we did not reject the petition

outright when it raised a viable issue ... simply because that issue was not

raised in the court of appeals", rev'g & rem'dg to court of appeals for decision

on merits of double jeopardy argument); cf; Perkins v. State,902 S.W.2d 88,102

(Tex.App.-El Paso-1995"),on supp.opinion,905 S.W.2d 452-452-53(Tex.Crim.App.1995)

(rejectinq motion for rehearing arguments and attachments, as not supported

by the record and the argument without merit, also noting a motion for leave

to file a supplemental brief was granted and considered by the court). The Court

of Appeals abused it's discretion by bot ruling on the merits in a written

opinion on Appellant's pro-se identified reversible errors. PDR Brief,6-9[citing

Sotelo, Rochelle, and Tex.R.App.P.47.1]. The sheer number of viable or arguable

constitutional issues Appellant raises pro-se in his supplemental brief, shows

his Due process rights to effective assistance of counsel and to a meaningful

appeal were violated below. See Supp.Brief,vii-ix(listing 15 issues presented).

-1-

Additionally, Appellant raised below his constitutional rights to file

a pro-se brief on appeal were violated. PDR Brief,viii-ix 1111,2-3. The Appellant

continues to rely on this constitutional issue. Supp.Brief,2-411114,6,8,9.

For the above reasons, Appellant respectfully requests this Court GRANT

LEAVE to file the instant "Supplemental Brief: the Proi-Se Identified Reversible

Errors" in the instant PDR proceeding.

I certify and affirm placing a true and correct copy of this instrument

into the prison mailbox on 12/24/14 addressed to the State Prosecuting Attorney,

, Price Daniel Sr. Bldg., 209 W. 14th St., Rm.202, Austin, Texas 78711, and

the Montgomery County District Attorney's Office Jason Larman, 207 W. Phillips,

2nd Fl., Conroe, Texas 77301.

Respectfully Submitted,

PETER JAMES MARTIN, #1846003, pro-se,

Michael Unit, 2664 FM 2054,

Tennessee Colony, Texas 75886

•a-

PD-1050-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

AND THE NINTH DISTRICT COURT OF APPEALS FOR TEXAS

COA ##09-13-00180-CR/09-13-00181-CR,09-13-00182-CR,09-100183-CR

Peter James Martin, Appellant, §

§ From the 221st Judicial District

v. § Court of Montgomery County, Texas

§ Cause Number 12-03-02604-CR

The State of Texas/ Appellee, %

SUPPLEMENTAL BRIEF: THE PRO-SE IDENTIFIED REVERSIBLE ERRORS

f Peter James Martin # 1846003

f Stiles Unit

j 3060 FM 3514

Beaumont, TX 77705

IDENTITY OF PARTIES AND COUNSEL

Trial Judges: Honorable Lisa Michalk, Honorable Mary Anne Turner,

Pre-Trial proceedings, Trial proceedings,

207 W. Phillips 210 W. Davis, Suite 400,

Conroe, Texas 77301 Conroe Texas 77301

Phone:(936)539-7808 Phone:(936)538-8174

Prosecutors: Robert Fryer, Joann Linzer,

SBOT #00798189 SBOT #24037255

Pre-Trial proceedings, Trial proceedings,

Assistant Mongomery Cty. Assistant Montgomery Cty.

District Attorney District Attorney

Amanda Lanning, Lane Haygood,

SBOT #24071514 SBOT #24066670

Trial proceedings, Trial proceedings,

Assistant Montgomery Cty. Assistant Montgomery Cty.

District Attorney District Attorney

Jason Larman, Bill Delmore,

SBOT #24072468 SBOT #05732400

Appeal proceedings Appeal proceedings

Assistant Montgomery Cty. Assistant Montgomery Cty.

District Attorney District Attorney

Brent Ligon, 207 W. Phillips, 2nd Fl.,

SBOT #00796955 Conroe, Texas 77301

District Attorney for Phone:(936)539-7800

Montgomery County, Texas Fax: )936)788-8395

Defense: Mr. Todd Ward, Mr. Walter Boyd Jr.

SBOT #00797780 SBOT #02782000

Pre-Trial proceedings Trial proceedings

DeGeurin and Dickson LLC, 202 Travis, Suite 208,

1013 Preston Ave., 7th Fl., Houston, Texas 77002

Houston, Texas 77002 Phone:(713)622-3505

Christopher Neal Allen, Jeremy D. Finch,

SBOT #24031816 SBOT #24052964

Appeal proceedings Appeal proceedings

Assistant Mongomery Cty. 300 W. Davis, Suite 450,

District Attorney Conroe, Texas 77301

Phone:(936)539-7800 Phone:(936)756-7297

Appellant: Mr. Peter James Martin, TDCJ-CID #1846003

Michael Unit of TDCJ-CID, 2664 FM 2054

Tennessee Colony, Texas 75886

Legal Assistant Paul James Koumjian, Post-Conviction Issues,

TDCJ-CID #1039181, Hughes Unit, Rt.2, Box 4400

Gatesville, Texas 76597

TABLE OF CONTENTS

Identity of Parties and Counsel i

Table of Contents ii

Index to Authorities iii-v

Statement of the Case vi

Statement Regarding Oral Argument vi

Issues Presented vii-ix

Arguments 1-33

1. Appeal Counsel Mr. Allen Violated Appellant's Right to Effective

Assistance of Counsel Guaranteed by Due Process, Preventing Meaningful

Review of Trial Court Defenses Argued to the Jury by Ignoring Same

in Favor of a Lone, Meritless, Waived Mistrial Ruling Claim 1-5

A. Due process 1

B. Complaint Was Timely Made in the Court of Appeals ... 1-4

C. Appeal Counsel Had an Actual Conflict of Interests ... 4-5

2. Penal Code §38.04(b) is Amended by Acts 2001 82nd Leg., Makes the

Offense Both a State Jail Felony and a Third Degree Felony, Under

Two Subsections With Different Elements, Renderring the Statute Un

constitutionally Vague, Indefinite and Uncertain as Written or Applied

Requiring Vacating the §38.04(b) Conviction and Dismissal of Charge 6-8

3. The Aggravated Threat of a public Servant Count and Enhanced Evading

Arrest Count, as Charged, Violate the Texas and United States Double

Jeopardy Prohibitions Against Multiple Punishments for the Same,

Continuous Course of Conduct, Requiring Vacating the Enhanced Evading

Arrest Count's Conviction and Sentence and Dismissing the Charge 8-11

4. Legally Insufficient Evidence of the Use or Exhibition of a Deadly

Weapon Motor Vehicle, Because None Was Shown to be Actually Endan

gered by Proximity to Appellant's Driving, Requiring Deletion of

the Deadly Weapons Findings From the Judgement of Evading Arrest 11-14

5. Legally Insufficient Evidence Alleged "Syringes" Were "Related"

to the Alleged "Possession of a Controlled Substance" Offense, and/or

Were Affirmatively Linked to Appellant, Requiring Reversal of the

Tampering With Evidence Conviction and as Acquittal Renderred 15-19

Facte ....--...-. "15-16

Arguments . 16-19

& Legally Insufficient Evidence of using a Vehicle to "Threaten" a

Public Servant While "Lawfully" Discharging His Duty, Based on Inde-

pendant Due process Violations of Trial Court False Testimony, Sup

pressed Evidence, Prosecution's Knowing Failure to Correct False

Testimony (USCA 14) and/or Unreasonable Siezure of Appellant by

Shooting Him For Unarmed Evading Arrest by Vehicle (USCA 4; P.C.§9.51(c)) 20-31

Facts 20-21

A. Legally Insufficient Evidence 22-26

B. False Testimony and Suppressed Evidence by Police and Prose

cutors, Failure of Prosecutors to Correct Knowing False Testimony

When it Appeared, in Violation of Due Process • 26-31

^* Violation of Appellant's Rights to Choice of Counsel and Conflict

Free Counsel and to a Knowing and Voluntary Decision on Plea Bargain

Offers, in Violation of USCA 6 & Tex.Constitutional Article I, Sec.10 31-33

Prayer 34

Certificate of Service 34

ii

INDEX TO AUTHORITIES

i •

.1

Constitutions, Statutes and Rules

USCA;|4 Unreasonable Seizures Prohibition viii,12,13,20,24,25

USCA |5 Dojuble Jeopardy Prohibition vii,8-ll

USCA ,6 ,- Assistance of Counsel Guarantee ii,vii,ix,3,31-33

USCA[14 Due Process Guarantee ii,vii-ix,1-7,11-33

Tex.Cohst., Art.I,§10 Assistance of Counsel Guarantee ii,ix,5,31

Tex.Const., Art.I,§14 Double Jeopardy Prohibition vii,8,ll

Texas Penal Code, • ,

§38.04(b) Evading Arrest by Vehicle \ ii,vi,vii,6-7,9-10

§38.04(d) Intent for Unenhanced Multiple punishments 9

§37.09(a) Tanparing With Evidence of Current Investigation of Offense 17

§37.09(d) Tanparing With Evidence of Subsequent Investigation of Offense vi, 15-19

§22v.01 Assault 22

§22\02(a)(2)(b)(2)(B) Aggravated Assault of Public Servant vi,10,22,24,26

§9.51(c) Unjustified Use of Daadly Faroe Defense Against

Criminal Liability for Assault on Public Servant ii,viii,20,25,26

§6.04(a) Concurrent Causation Defense Against Criminal Liability viii,13,23

Health and Safety Code,

§481.115-§481.118 Possession of Controlled Substance statutes vi,16

§481.125(a) Possession of Drug Paraphrenalia 17

Code of Criminal Procedure,

art.42.12,§3g(a)(2) Use of Deadly Weapon offense enhancer 9,10,14

Acts 2011, 82nd Leg.,

chapter 391 (SB 496) Version One of Penal Code §38.04(b) 6,7

chapter 839 Version One of Penal Code §38.04(b) 6

chapter 920(SB1416) Version Two of Penal Code §38.04(b) 6,7

Standards of Review in Texas,34 St. Mary's L.J.159(2002) 25,26

i

Texas Rules of Appellate Procedure,

33.1 Preservation of Appellate Complaints, How Shown 8

38.9 Briefing Rules to Be Construed Liberally 8

44.2(a) p&vmrsible Constitutional Error in Criminal Cases 11,27A,34

44.4 Re«©tfial Error of the Trial Court 27A,34

47.1 Written Opinions 3-5,11,14,19,30,33

49 Motion for Rehearing, Response, Decision 3,5,14,19,27A,33

®

Caselaw

Ex parte Adams,768 S.W.2d 281(Tex.Crim.App.1989) 26,29

U.S. v. Agurs,427 U.S.97,103(1976) 26,29

Anders v. California,386 U.S.738(1967) 3

Arizona v. Fulamonte,499 U.S.279(1991) 4

Badgett v. State,42 S.W.3d 126(Tex.Crim.App.2001) 17

U.S. v. Bagley,473 U.S.667(1985) 4,27

Baxter v. State, 12-O3-00253-CR, 2001 Tex.App.LEXIS 4861(Tex.App.-FasUarri 10-28-04) 22

Beets v. Scott,65 F3d 1258(5th Cir.2995)(en banc) 5,32,33

Lyons v. McCotter,770 F2d 529,534(5th Cir.1985) 3

in

(cori't)

Berger v. State,104 S.W,3d 199(Tex.App.-Austin 2003) 8

Blanton v. State, Q5-05-0i060-CR, 05-05-01061-CR, 2006 Tex.App.LEXIS 6367

(Tex.App.-C&llas,7-21-05), pet ref'd 2x 2007 Tex.Ajp.IEX3S 376,377(3-21-07) 18

Bledsoe v.;State,178 S;W.3d 824(Tex.Crim.App.2005) 4

Blockburger v. U.S.,383 U.3.289(1932.) 8-11

Brady v. Maryland,373 U.S'.'83(1963) ' 27,27A

Brock v. State/295 S^wi3d 45(Tex.App.-Hous[l Dist]2009 rehg denied) 24,26

Brown.v. State,183 S.W.3d 728(Tex.App.-Hous[l Dist]11-23-05 rehg denied) 12,13,22-24

Brown v. State, 11-03-00253-CR,. 2001Tex.Acp.LEXIS 6479(Tex.App.-^iastLaria 10-28-04 pet refd) 22

Callison v. State,218 S.W.3d 822(tex.App.-Beaumont 2007) 9

Ex parte earner,364 S.W.2d 896(Tex.Crim.App.2012) 6,7

Ex parte Caravos,203 S.W.3d 333(Tex.Crim.App.2008) 11

Ex parte Casteliano,863 S.W.2d 476(Tex.Crim.App.l993) 26-29

Cannon v. State,252 S.W.3d 342(Tex.Crim.App.2008) 8

Carlton v. State,176 S.W.3d 231(Tex.Crim.App.2005) 6

Cates v. State,102 S.W.3d 735(Tex.Crim.App.2003) 9,13

Chapman v. California,386 U.S.18(1967) 27

Clay v. State,240 S.W.3d 895(Tex.Crim.App.2007) 7

Clintom v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989) 32

Cobb v. State,95 S.W.3d 364(Tex.App.-Hous]l Dist]2002 no pet) 7

Craig v. TDCJ-CID,2013 U.S.Dist.LEXIS 124976(E.D.Tex.2013) 27

Daniel v. State,577 S.W.2d 231(Tex.Crim.App.l979) 13

Deltenre v. State,808 S.W.2d 97(Tex.Crim.App.1990) 16,17,19

Ex parte Demmitt,664 S.W.2d 725(Tex.Crim.App.1985) 7

Dobbins v. State,228 S.W.3d 761(Tex.App.-Hous[14 Dist]2007) 11,14,22

Dobbs v. State, 07-12-0376-CR, 07-12-0377-CR, 2013 Tex.App.LEXCS 3050

(Tex.App.-AmariLlo 3-20-13 rehg ovrld) 13,22,23

Driehas v. State,175 S.W.3d 795(Tex.Crim.App.2005), on remand,

Drichas v. State,219 S.W.3d 471(Tex.App.-Texarkana 2007) 9,13

Draughton v. Dretke,427 F3d 286(5th Cir.2008) 28

Duggan v. State,778 S.W.2d 465(Tex.Crim.App.1999) 27

Ex parte Ervin,991 S.W.2d 804(Tex.Crim.App.1999) 10

Estrada v. State,313 S.W.3d 274(Tex.Crim.App.2010) 7

Estate of Starks v, Engert,5 F3d 230(7th Cir.1992) 12,22-24,26

Evitts v. Lucy,469 U.S;387(1985) 1

Favela v. State, 13-12-O03970-CR, 2012 Tex.Acp.LEXIS 5691(Tex.App.-Austin 5-6-13) 18,19

Fernandez v. State,316 S.W.3d 354(Tex.App.-Ft. Worth 2010 no pet) 11

Fraire v. City of Arlington,957 F2d 1268(5th Cir.1992) 25,26

State v. Fury,186 S.W.3d 67(Tex.App.-Hous[l Dist]2005 pet refd) 27,27A

Gaitan v. State,393 S.W.3d 400(Tex.App.-Amarillo 12-17-12) 17

Garcia v. State,57 S.W.3d 436(Tex.Crim.App.2001) 1,28

Gaston v. State,574 S.W.2d 120(Tex.Crim.App.1978) 17

Giglio v. U.S.,405 U.S.150(1972) 26,29,30

Gonzalez v. State,574 S.W.2d 135(Tex.Crim.App.1978) 24

U.S. v. GonzalezLopez,548 U.S.140(2006) 32

Graham v. Connor,490 U.S.386(1989) 25,26

Griego v. State,345 S.W.3d 742(Tex.App.-Amarillo 2011) 6

Harrell v. State,165 Tex.Crim.384,314 S.W.2d 590(Tex.Crim.App.1958) 7

Ex parte Hawkins,6 S.W.3d 554(Tex.Crim.App.1999) 8

Hobbs v. State,175 S.W.3d 777(Tex.Crim.App.2005) 8,9,11

Holloway v. State,780 S.W.2d 787(Tex.Crim.App.1989) 32

Huffman v. State,267 S.W.3d 902(Tex.Crim.App.2008) 10

Infante v. State,397 S.W.3d 731(Tex.App.-San Antonio 2-6-13) 10

Issac v. Cain,2013 U.S.Dist.LEXIS 123864(E.D.La.2012) 27

lv-a

(con't)

Jackson v. Virginia,443 U.S. 307(1979) ' 16,19,26

Jiminez v. Quarterman,129 S.Ct.681(2009) 2,4

Johnson v. State,364 S.W.3d 292(Tex.Crim.App.2012) 10

Johnson v. State,172 S.W.3d 6(Tex.App.-Austin 2005) 3

Johnson v. State,169 S.W.3d 223(Tex.Crim.App.2005) 27

Johnson v. Dretke,442.F3d 901(5th Cir.2006) 27

Jones v. State,926 S.W.2d 386(Tex.App.-Ft. Worth 1996) 32

Kaez v. State,287 S.W.3d 497(Tex.App.-Hous[14 Dist]2009) 24

Karenev v. State,281 S.W.3d 428(Tex.Crim.App.2009) 7

Kesaria v. State,189 S.W.3d 279(Tex.Crim.App.2009) 7

Koch v. Puckett,907 F2d 514(5th Cir.1990) 27

Kyles v. Whitney,514 U.S.418(1995) 4

Lafler v. Cooper,No.10-209, 566 U.S. (2012) 33

Lewis v. State,402 S.W.3d 852(Tex.App.-Amarillo 2012), pet.

granted, 2013 Tex.Crim.App.LESIX 1526(10-23-13) 27A

LaPointe v. State,225 S.W.3d 513(Tex.Crim.App.2007) 27A

L.P. v. State, S.W.3d— ,2009 Tex.App.LEXIS 5467(Tex.App.-Austin 7/14/09) 17

Martinez v. State,163 S.W.3d 88(Tex.App.-Amarillo 2004), appeal after

remand, 163 S.W.3d 92(Tex.App.-Amarillo 2005 no pet) 2-4

McQueen v. State,781 S.W.2d 600(Tex.Crim.App.1989) 10

Michaelwicz v. State,186 S.W.3d 601(Tex.App.-Austin 2006 rehg ovrld pet refd) 27A

U.S. v. Miller,576 F3d 518(5th Cir.2009) 11,22

Ex parte Morrow,952 S.W.2d 530(Tex.Crim.App.1997) 5

Moser v. Bascilla,865 F.Supp.249(E.D.Pa.1994) 24,25

Murphy v. State,01-O8-O0768-CR,01-08-00659-CR, 2010 Tex.App.LEKE31S53

(Tex.App.^faus[l Dist] 4-22-10 pet refd 2x) 9-10,14

Napue v. Illinois,360 U.S.264(1953) 27,29,30

Olivas v. State,203 S.W.3d 341(Tex.Crim.App.2006) 11,14

Pannellv. State,7 S.W.3d 222,224(Tex.App.-Dallas 1999) ' 17,18

Perillo'v. Johnson,205 F3d 775(5th Cir.2000) 5,32,33

Ex parte Perales,215 S.W.3d 418(Tex.Crim.App.2007) 16,19

Perkins v. State,902 S.W.2d 88(Tex.App.-El Paso 1995), on supplemental

opinion, 905 S.W.2d 452(Tex.App.-El paso 1995 pet refd) 27,27A

Powell v. Alabama,286 U.S.45(1932) * 32

Pyle v. Kansas,317 U.S.213(1942) ''26

Rabbv. State,387 S.W.3d 67(Tex.Crim.App.2012) 14,16,17,19

Reece v. State, 03-03-0C490-CR, 2004 Tex.AFP.IEXIS 6815(Tex.Acp-San Antonio 7-19-04 pet refd) 11

Robinson v. State,16 S.W.3d 808(Tex.Crim.App.2000) 3,8

Rodriguez v. State,129 S.W.3d 551(Tex.App.-Hous[l Dust]2004) 1,3

Roberson v. State,80 S.W.3d 730(Tex.App.-Hous[l Dist]2002) 18

Robertson v. State,187 S.W.3d 475(Tex.Crim.App.2006), on remand,

214 S.W.3d 665(Tex.App.-Waco 2007 no pet) 3

Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 27,27A

Rudd v. State,616 S.W.2d 623(Tex.Crim.App.21981) 2

Satterwhite v. Lynaugh,886 S.W.2d 91(5th Cir.1989) 2

In re Schulman,252 S.W.3d 403(Tex.Crim.App.2008) 2

Self v. State, 05-02-01963-aR, 2004 Tex.App.LEXES 7352(Tex.App.-Dalias 2004), pet.diaid,

2005 Tex.Crim.Acp.LEXIS 278(3-2-05 ,pet.refd, 2005 Tex.Crim.App.LEXES 973(6-22-05) 13,24

U.S. v. Severns,559 F3d 274(5th Cir.2009) 9-11

Sierra v. State,280 S.W.3d 250(Tex.Crim.App.2009) 14

Sims v. State,99 S.W.3d 600,601-04(Tex.Crim.App.2003) 27A

Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 11,27,27A

Spence v. State,758 S.W.2d 597(Tex.Crim.App.1988) 27A

Stone v. State,17 S.W.3d 348(Tex.App.-Corpus Christi 2000) 3

Strickland v. Washington,466 U.S.668(1984) 3,33

Swann v. City of Richmond,498 F.Supp.2d 847(E.D.Va.2007) 12,13,22,23,26

iv-b

(con't)

Tassin v. Cain,517 F3d'770(5th Cir.2003) 27,27A,29,30

Thornton v. State,377 S.W.3d 814(Tex.App.-Amarillo 2012), reh overld,!

2012 Tex.App.LEXIS 7687(9-7-12), setting bail, 2012 Tex.Acp.LEXES 8233(9-28-12),

vacated, remanded, reformed verdict, No.PD-0669-13(Tex.Crim.App.4-2-2014) 16-18

Teeter v. State, 13-O7-00578-CR, 2009 Tex.App.IEXIS 5668(Tex.Acp.-<)arpus Christi 2009),

affd in pert part, revd on other grounds, 2010 Tex.Crim.Acp.LEXIS 1206(9-22-10),

writ denied, 2012 Tex.Qrim.App.UrpjD.LEXIS 3134(4/4/12) 24

Vasquez v. State,67 S.W.3d 229(Tex.Crim.App.2002) 27,27A

Verduzzo v. State.-, 2.4 S.W.3d 284(Tex.App.-Hous[14 Dist]2002) 18

Wheat v. U.S.,486 U.S.153(1988) 5,32

Willliams v. State, 03-06-00039-CR(Tex.App.-Austin 2007) 8

Whiddon v. State, 10-O5-C0085-CR, 2007 Tex.App.LEXIS 916(Tex.App.-Waco 2007) 22,25

In re Winship,397 U.S.358(1970) 14

Zuliani v. State,335 S.W.3d 213(Tex.App.-Austin 2011), affd and

remanded for further proceedings, 353 S.W.3d 872(Tex.Crim.App.2011),

reaffirmed, 383 S.W.3d 289(Tex.App.-Austin 2012), pet refd 2x,

2013 Tex.Qrim.App.LEXIS 64,65(1-9-13) 8-11

12/24/14 dated APPENDIX INDEX

Deputy Chris Azwell relevant testimony, Appx.1-3

Bullet Trajectory Expert Mark Wright relevant testimony Appx.3-5

Casey Meadows relevant testimony Appx.5-6

State's Closing Jury Arguments excerpts, Appx.7

Defense's Closing Jury Arguments exceprts, Appx.7-9

9/20/12 Motion to Withdraw Hearing (missing from appellate record), Appx.10-1.9

9/27/12 Motion to Substitute Hearing (same, also missing) Appx.20-28

Trial Defense Counsel Mr. Boyd's Affidavit : ::. Appx.29-30

"Front-View" Laser Test Photo Suppressed State's Evidence, Appx.31

"Side-View" Laser test Photo Filed State's Evidence, Appx.32

7/21/14 issued COA Memorandum Opinion,1-9 Appx.33-41

COA Order Denying En Banc Consideration Appx.42

COA Notices of filing or not filing Motions, Appx.43,44

COA Order Overruling Pro-Se Amended motion for Rehearing, Appx.45

COA Order Denying Pro-Se Motion to Exceed Page Limits, Appx.46,47

COA Order Refusing to Construe pro-Se Filed Briefs, Appx.48

3/17/14 Timely Filed Pro-Se Motion Complaining About Appeal Counsel, Appx.49-52

State's Exs.176 & 179 of Bullet Holes in Front and Side of Car, Appx.53,54

State's Exs.59,60,78,79,106-07 close-ups of syringes evidence, Appx.55-57

v

STATEMENT OF THE CASE

This is a criminal case appealing the convictions from the 221st Judicial

District Court of Montgomery County, Texas, based on a four count indictment

alleging in CT.I "threaten" Deputy Chris Azwell by using a vehicle as a deadly

weapon under 1st degree felony Penal Code §22.02(a)(2),(b)(2)(B)(Aggravated

Threat of a Public Servant) offense, in CT.II "flee" from Deputy Chris Azwell

by using a vehicle as a deadly weapon under 3rd degree felony Penal Code §38.04

(b)(2)(A)(Aggravated Evading Arrest) offense, in CT.III "alter,destroy, or

conceal" "Syringes" with "intent to impair it's availability as evidence ....

related to" a "Possession of Controlled Substance" ... offense" under 3rd degree

felony Penal Code §3,7.09(d) (Tampering With Evidence) offense and in CT.IV the

possession of a controlled substance under one gram a state jail felony under

Health and Safety Code §481.115(Possession of a Controlled Substance in Penalty

Group 1) offense. The indictment also contained five (5) enhancement paragraphs

alleging prior convictions.Clerk's Record ("OR.") ,39-40.

Appellant pleaded "not guilty" to all counts, Reporter's Record ("R.R."),

v.4,p.l, but a jury found him guilty on all counts as alleged in the indict

ment, made an affirmative finding of deadly weapon in the count II evading

arrest count, R.R.,v.9,pp.128-29, found the first three enhancement paragraph

allegations "true" and assessed punishments for counts I-III at "life" in

TDCJ-CID and for count IV at .twenty (20) years in TDCJ-CID. R.R.,v.ll,pp211-212.

The sentences are running concurrent. This appeal followed.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument will be helpful, to the Court.This is especially true because

this brief has been prepared pro-se and may not be as clear and concise as

the Court is used to. This case is complex and important because it involves

sheriff's deputy's and prosecutors acting in concert to cover up an excessive

use of force by the arresting officer in shooting the Appellant while fleeing

in his vehicle from the side of Appellant's car even though Appellant was not

endangering the officers or anyone else, the officer falsely testified in trial

that Appellant was driving straight at him to cover-up his excessive use of

force to arrest Appellant, and was assisted by another deputy expert witness

on ballistics who fabricated or suppressed evidence to suppress the existence

of State's evidence that conclusively proves the excessive force issue and

at the same time conclusively disproves Deputy Azwell's claim Appellant was

driving directly at him when he shot Appellant, which is the "front-view"

laser test showing bullet trajectory in the record. Appx.31. This appeal is very

important to the jurisprudence of Texas caselaw because it will show that the

Courts of Appeals will defend the integrity of the Texas trial courts from

abuse of police power by perversion of due process. The record is also long

and the relevant issues are minute and detailed therein. Oral argument is thus

requested, and appointment of appeal counsel is requested for this purpose,

or that the Court allow Appellant's inmate legal assistant to argue on his

behalf due to his formulation of the appeal arguments and familiarity with

the record.

vi

ISSUES PRESENTED

1. APPEAL COUNSEL VIOLATED DUE PROCESS RENDERRING INEFFECTIVE ASSISTANCE OF

COUNSEL AND PREVENTING A MEANINGFUL APPEAL, BY NOT ARGUING ANY MAJOR ISSUE

TRIAL COUNSEL ARGUED TO THE JURY, IN FAVOR OF PRESENTING A MERITLESS MIS

TRIAL RULING ARGUMENT OVER APPELLANT'S RECORD FILED OBJECTIONS see post.,

1-5;; Appx.49-52(Appellant's timely record filed objections); Appx.29-

30('trial counsel's affidavit); 7/21/14 Am.Mot.for Reh'g,4,13; Appx.45(COA

"Overruled" jugement)

2. APPEAL COUNSEL VIOLATED DUE PROCESS FOR HAVING AN ACTUAL CONFLICT OF IN

TERESTS IN REPRESENTING APPELLANT see post.,3-4; 7/21/14 Am.Mot.for Reh'§,

4,14-15; Appx.45(COA "Overruled" judgement)

3. TRIAL COUNSEL RENDERRED INEFFECTIVE ASSISTANCE OF COUNSEL BY EMPLOYING

A CLEARLY UNSOUND TRIAL STRATEGY OF REVEALING TO THE JURY THAT APPELLANT

HAD PRIOR CONVICTIONS DURING THE GUILT PHASE OF TRIAL, DESPITE APPELLANT

NEVER TESTIFYING DURING THE GUILT PHASE, AUTHORIZING RELIEF ON THIS RECORD

see post.,1-3,11111,2,4,7; Appx.36-37, Mem.Op,4-5(holding trial counsel

failed to object to CD video evidence, at R.R.10:. State's Ex.2 at 6:55-

7:00, 11:00-11:10); R.R.,v.4,pp.92-93,95-96(during voir dire trial counsel

admits to a "rap sheet" of "prior convictions")

4. THE COUNT II PENAL CODE §38.04(b) CONVICTION, AS AMENDED BY ACTS 2011,

82nd LEGISLATURE, IS UNCONSTITUTIONALLY VAGUE ON IT'S FACE AND AS APPLIED,

BECAUSE THE ALLEGED OFFENSE HAS TWO DIFFERENT VERSIONS OF §38.04(b) WITH

DIFFERENT ELEMENTS, ONE BEING A STATE JAIL FELONY AND THE OTHER BEING

A THIRD DEGREE FELONY, REQUIRING THIS COURT TO DECLARE THE STATUTE TO

BE UNCONSTITUTIONAL, VACATING THE CONVICTION see post.,6-8

5. THE AGGRAVATED THREAT OF A PUBLIC SERVANT BY USE OR EXHIBITION OF A VEHICLE

AS A DEADLY WEAPON COUNT AND THE ENHANCED EVADING ARREST BY USE OF A VEH

ICLE AS A DEADLY WEAPON COUNT, AS CHARGED, VIOLATE THE TEXAS AND UNITED

STATES DOUBLE JEOPARpY PROHIBITIONS! AGAINST MULTIPLE PUNISHMENTS FOR THE

SAME CONTINUOUS COURSE OF DRIVING CONDUCT, REQUIRING VACATING THE EVADING

ARREST COUNT'S CONVICTION AND DISMISSING THE CHARGE see post.,8-11; OR.39

6. LEGALLY INSUFFICIENT EVIDENCE^ OF;iTHEcUSE, OR EXHIBITION OF A DEADLY WEAPON

MOTOR VEHICLE, AS fiNOONE. WAS SH©WN:;.TOrBEcAGTtTALL¥^/ENpANGEREDf:BY/iPRQXIMITY

TO APPELLANT'S DRIVING, REQUIRING DELETION OF. THE DEADLY WEAPON FINDING

FROM THE EVADING ARREST JUDGEMENT AND REMAND FOR A NEW PUNISHMENT PHASE

TRIAL see post.,11-14; R.R.10: State's Ex.204(deputy's incar. video CD);

Appx.38, MemIOp_,6(holding CD video shows not maintaining speed, operating

vehicle in unsafe manner, failure to stop and several traffic violations,

but NOT FINDING ACTUAL DANGER BY PROXIMITY); Appx.8-9, R.R.,v.9,106-07

(arguing reasonable doubt on deadly weapon finding to jury); R.R.,v.9, pp.

128 lines 12-25, 129 lines 1-10(jury's affirmative finding)

7. LEGALLY INSUFFICIENT t\/fJ)ENCE THE ALLEGED "SYRINGES" WERE "RELATED" TO

THE ALLEGED "POSSESSION OF A CONTROLLED SUBSTANCE" OFFENSE, AS THE ROADSIDE

HIM) SYRINGES BY THEMSELVES-DO NOT PROVE ANY ELEMENT OF THE OFFENSE ALLEGED,

ARE NOT ILLEGAL OR CONTRABAND, FAILING TO STATE A COGNIZABLE LEGAL THEORY

REQUIRING A REVERSAL AND AN ACQUITTAL see post.,15-17; Appx.40, Mem.Pp.,8;

R.R.,v.9,pp.84,120-21; R.R.,v.6,pp.117,122-23,131,151-52,154-55; Appx.55-57

(close up photos of State's "syringes" evidence)

vii

8. LEGALLY INSUFFICIENT EVIDENCE OF AN AFFIRMATIVE LINK BETWEEN THE ROADSIDE

FOUND SYRINGES AND THE.. APPELLANT, REQUIRING REVERSAL OF CONVICTION AND

RENDITION OF AN ACQUITTAL see post.,15-16,18-19; Appx.40, Mem.Op.,8; R.R.,

v.6,pp.103-04,120-21; R.R. ,v.l4,p.23(trial counsel's hearsay/no affirma

tive link and irrelevance objections); R.R.,v.6,pp. 120-21,151-52(CSI Ever-

ton,admits he could not connect any found items to Appellant); R.R.,v.6,pp.

131,151-52,154-55(Crime Scene investigat3OT33 admit taking syringes back

to lab and not forensically testing them, guessing as to contents)

9. LEGALLY INSUFFICIENT EVIDENCE OF USING A VEHICLE TO "THREATEN" DEPUTY AZWELL

SINCE THE DEPUTY RAN IN FRONT OF APPELLANT'S VEHICLE FOR 1-2 SECOND ONLY

THEW JUMPED OUT OF THE WAY AGAIN, AND THERE IS NO EVIDENCE APPELLANT WAS

NOT DRIVING DIRECTLY FOR THE SPACE BEHIND AZWELL'S CAR BEFORE AZWELL RAN

INTO THAT SPACE RIGHT IN FRONT OF APPELLANT'S GAR, post.,20-23; Appx.38-39,

Mem.Pp.,6-7; Appx.1-3, R.R.,v.5,86-90 & R.R.,v.6,14-21(Deputy Chris Azwell

testimony excerpts):

10. LEGALLY INSUFFICIENT 6vty£NCE OF USING A VEHICLE TO "THREATEN" DEPUTY AZWELL

SINCE THE DEPUTY RAN IN FRONT OF APPELLANT'S ALREADY AIMED AND MOVING VEH

ICLE FOR 1-2 SECONDS ONLY THEN JUMPED OUT OF THE WAY AGAIN, UNDER THE CON

CURRENT CAUSATION STATUTE AT PENAL CODE §6.04(a) MAKING CLEAR APPELLANT

IS NOT CRIMINALLY RESPONSIBLE FOR THE DEPUTY RUNNING IN FRONT OF APPELLANTS

ALREADY AIMED AND MOVING VEHICLE WHICH WAS SUFFICIENT IN ITSELF TO CAUSE

THE "THREATEN" ELEMENT, AND APPELLANT'S DRIVING AIMED FOR THE SPACE BEHIND

AZWELL'S CAR BEFORE AZWELL RAN INTO THAT SPACE MOMENTARILY WAS CLEARLY

INSUFFICIENT IN ITSELF TO RESULT IN AZWELL BEING "THREATENED", REQUIRING

REVERSAL OF CONVICTION AND RENDITION OF AN ACQUITTALi see post.20-23;

AND SEE #9 above record citations

11. LEGALLY INSUFFICIENT EVIDENCE OF DEPUTY AZWELL "LAWFULLY DJWSHARGING" HIS

DUTY TO ARREST APPELLANT, BY HIS RUNNING IN FRONT OF APPELLANT'S VEHICLE

LONG ENOUGH: TO SHOOT APPELLANT AND THEN JUMP OUT OF THE WAY AGAIN, THUS

UNREASONABLY CREATING THE "THREAT" ENCOUNTER PROSCRIBED BY THE STATUTE,

IN VIOLATION OF USCA 4, THE OPPOSITE OF A VITAL FACT WITHIN THE STATE'S

BURDEN OF PROOF, REQUIRING THE[COUNT I CONVICTION TO BE REVERSED AND THE

RENDITION OF A JUDGEMENT OF ACQUITTAL see post.,20-21,24-25; and see #9,#10

above record citations

12. LEGALLY INSUFFICIENT EVIDENCE OF DEPUTY AZWELL "LAWFULLY DISCHARGING".HIS

DUTY TO ARREST APPELLANT, FOR THE SAME REASONS AS STATED IN #11 ABOVE,

BUT IN VIOLATION OF TEXAS PENAL CODE §9.51(c) FOR USING EXCESSIVE FORCE

IN SHOOTING THE APPELLANT TO ARREST HIM see post.,20-21,25-26; and see #9,

#10,#11 above record citations

12. FALSE TESTIMONY THAT APPELLANT WAS DRIVING "DIRECTLY" AT DEPUTY AZWELL,

FABRICATED AND SUPPRESSED BULLET TRAJECTORY LASER TEST PHOTO EVIDENCE

TESTIMONY BY MARK WRIGHT, AND KNOWING FAILURE OF PROSECUTORS TO CORRECT

THIS FALSE, MISLEADING TESTIMONY WHEN IT APPEARED IN TRIAL, IN VIOLATION

OF DUE PROCESS, REQUIRING REVERSAL OF CONVICTION AND RENDITION OF AN AC

QUITTAL DUE TO NO REMAINING COMPETENT EVIDENCE TO PROVE THE"THREATENED"

ELEMENT OF THE OFFENSE see post.,26-31; Appx.37-39, Mem.Pp.,5-7; Appx.l -

R.R.,v.5,88-90(Azwell fabricates Appellant is driving "directly" at him

when he fired his weapon from in front of Appellant's car); Appx.3-5 -

R.R.,v.6,155-71(Mark Wright testimony suppressing existence of "front-

vm

view" laser test photo result, dodging the issue on the record); Appx.31,

"Front-View" laser test photo result proving Deputy Azwell shot into Appel

lant's car from the side thus perjured himself when said he shot from

the front of the car)

13. VIOLATION OF APPELLANT'S RIGHT TO CHOICE OF COUNSEL UNDER USCA 6 AND TEXAS

CONSTITUTIONAL ARTICLE I. SECTION 10, REQUIRING REVERSAL OF THE CONVICTIONS

AND REMAND FOR A NEW TRIAL see post. ,31-32; OR.226-31; R.R. ,v.12,D.Exs.1-4

-Appx.14-16, Sept.20,2012 MTW Hearing,5-7; Appx.23-27 - Sept,27,2012 MTS

Hearing,4-8; R.R.,v.14,pp.23-27,30-33,38,47-48,66-71

14. VIOLATION OF APPELLANT'S RIGHT TO EFFECTIVE ASSISTANCE OF CONFLICT FREE

COUNSEL UNDER USCA 6, DUE TO CONFLICT BETWEEN MR WARD'S FEE CONTRACT AND

HIS DUTY OF LOYALTY OR ZEALOUS ADVOCACY TO APPELLANT CAUSING AN ADVERSE

EFFECT, REQUIRING REVERSAL OF THE CONVICTION'S AND REMAND FOR A NEW TRIAL,

see post.,31-33; and see #13 above record citations

15. INVOLUNTARY AND UNKNOWING- REJECTION OF 35 YEAR PLEA OFFER, REQUIRING RE

VERSAL OF CONVICTIONS AND REMAND FOR NEW TRIAL see post.,31-33; and see

#13 above record citations

IX

1. APPEAL COUNSEL MR. ALLEN VIOLATED APPELLANT'S RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL ON DIRECT APPEAL GUARANTEED BY THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION/ PREVENT

ING MEANINGFUL REVIEW OF HIS TRIAL COURT DEFENSES ARGUED TO THE JURY,

BY IGNORING SAME IN FAVOR OF A LONE/ MERITLESS/ WAIVED MISTRIAL CLAIM

A. Due Process

Appeal counsel violated Appellant's rights to effective assistance of

counsel on direct appeal contrary to Due Process, by not arguing the primary

issues trial counsel presented to. the jury in this trial, which was an outra

geous relinquishment of appeal counsel's duty to an indigent appellant repre

sented by appointed appeal counsel, forcing this Appellant to pursue prd-se

a motion for rehearing after the Court of Appeals renderred it's predictable

judgements against Appellant based on appointed appeal counsel's meritless

argument. Evitts v. Lucy,469 U.S.387,396(1985)(right to effective assistance

of appeal counsel is grounded in USCA 14's.Due Process Clause); Rodriguez v.

State, 129' S.W.3d 551,562-64(Tex. App.-Hous. [1 Dist.]2004 pet refd) {after an

appointed appeal counsel argued maiaerous meritless issues and obtained an

affirmance of aggravated robbery conviction, this writer assisted pro-se; inmate

to file motion for rehearing arguing ineffective assistance of appeal counsel,

and no evidence appellant knew his partner had a concealed weapon on him when

entering and exiting convenience store, 'waitifi appellant assisting in getaway

as driver; rev'g conviction, renderring acquittal; court ordered previously

unpublished opinion of appointed appeal counsel's resulting opinion, together

with pro-se inmate's motion for rehearing results published,, merely commenting

on raised ineffective assistance of counsel claim but not ruling on it); Garcia

v. State,57 S.W.3d 436,440(Tex.Crim.App.2001)(approving of ineffective assist-

ance of counsel claims being resolved on direct appeal, when no competent at

torney would have engaged in record based deficient performance of counsel).

B. Complaint Was Timely Made in the Court of Appeals

About Appointed Appeal Counsel's Deficient Performance

I. On December 20,2013 appeal counsel filed an "Appellant's Brief" arguing

in one issue the trial court erred by failing to grant trial counsel's motion

for mistrial, when the State referred to Appellant's prior convictions unrel

ated to the current matter, while cross examining a defense witness, ibid.,6.

&• On February 10,2014 the State responded, arguing the trial court did not

err because trial counsel did not object to the State's previous introduction

of Appellant's prior convictions in a °CD video showing Appellant being inter

viewed by police and admitting when he allegedly committed these offenses he

was "on drugs" and "on thirty years parole", and additionally because trial

counsel had already informed the jury pool during voir dire that Appellant

had a "rap sheet" of "prior convictions" which even trial counsel would likely

not be able to overcome. See, 02/10/14 filed State's Brief,5-7(citing record).

3. On July 22,2014 trial counsel executed an affidavit swearing under oath

he called and went to see many times appeal counsel to help with this appeal,

but appeal counsel disregarded trial counsel, put him off and "did not even

have the good sense or courtesy or even the interest of his client to consult"

with trial counsel on "the number of errors" trial counsel "raised in trial",

further complaining that appeal counsel had "no excuse for not raising some

if not all of the errors in trial" trial counsel preserved, in appeal counsel's

single issue appellant's brief. Appx.29-30(Affidavit by Walter Boyd,1-2).

V.

H- On March 17,2014 Appellant timely filed a pro-se motion complaining about

appeal counsel's "only argument" having disregarded his many trial court argu

ments, by presenting only a meritless mistrial motion claim, that should have

been presented as a record based ineffective assistance of counsel claim based

on_ the same facts and relevant record excerpts, and also complaining about

being denied copies of the appellate record to actively assist appeal counsel

with, which resultingly prevented Appellant from participating in his own appeal

and denied him a meaningful appeal contrary to Due process. Appellant specific

ally complained appeal counsel's obviously "non-meritorious argument that the

State elicited Appellant's prior convictions ... without even discussing ...

defense counsel employed this tactic by inviting such error ... mak[ing] appeal

counsel's efforts seem like the boilerplate work of hacks ... like the equiva

lent .of an Anders brief [see, Jiminez v. Quarterman,129 S.Ct.681(2009) for-

a discussion of Anders briefs in direct appealsJ without the constitutionally

protected right to file a pro-se brief ... which may be the point" of appeal

counsel s filing of an obviously deliberately meritless appellant's brief.

Appellant informed the Court of Appeals he thus had "no confidence in his appeal

attorneys."Appx.49-52 ;(03/17/14 fi!ed Pro-Se Motion.l-*fw/an-.* cierk stamped

letter from Appellant to appeal counsel,making requests]; see also, related

pro-se motions filed April 23,2014, April 30,2014 & May 8,2014. "Appeal counsel

,T" iJ^"wefUSed t0 Present and ar9ue ... anything for Martin at his request ."

See' 0//21/14 filed Amended Motion for Rehearing,4.

F. On May 21,2014 the Court of Appeals affirmed the trial court's judgements,

rejecting appeal counsel's single issue erroneous mistrial motion ruling claim,

by adopting one of two State's rebuttal arguments, that trial counsel failed

to object to previously State admitted CD video evidence showing Appellant

admitting to police on the date of the offense he was "on drugs" and "on thirty

years parole", making the State's later visitation..of this issue as raised

on appeal "cumulative" and "not prejudicial". Appx.3£-37„ Mem.Pp.,4-5. The Court

did not discuss the other State's argument, that trial counsel poisened the

entire jury pool by admitting during voir dire that Appellant had a "rap sheet"

of prior convictions" which suggested "a less than perfect past". 02/10/14

filed State's Brief,6-7,9. —/ '

(,< The Court of Appeals abused it's discretion by failing to conduct a hearing

for Appellant when he first raised the issues of appeal counsel deficient per

formance on appeal by his filed appellant's brief. The Texas Court of Criminal

Appeals has held it will consider pro-se contentions raised in a brief on appeal

even when represented by appeal counsel who has already filed an appellant's

brief, in the interests of justice. See, Rudd v. State,616 S.W.2d 623,625(Tex.

Crim.App.1981); accord, Satterwhite v. Lynaugh,886 F2d 91,93(5th Cir 1989)

?" Martinez v. state, 1M S.W.3d BBfTpy.App.-am^in^ 2004), en appeal after retard

163 S.W.3d 92(Tex.App.-Amarillo 2005), the appellant complained about his appeal

counsel s appellate brief's omission of issues that he should have brought

up, denying him effective assistance of counsel on first appeal, and requested

to abate the appeal" and to "send appellant a copy 'of his transcripts'",

and the court of appeals issued an abate and remand order directing the trial

court to conduct a hearing as to whether appellant would be allowed to proceed

with his appeal pro-se, with another appeal lawyer or with the same appeal

lawyer, id.,163 S.W.3d <? 89-91(applying, Rudd,supra.). In the case at bar,

the Appellant also timely filed his March 17,20H Jobjections to appeal counsels

appellant s brief, also omitting obvious issues from his defense in trial,

also asking for provision of and not receiving copies of the appellate record

to assist appeal counsel, and went one step further than the Martinez appellant

by actually attempting to brief the issues appeal counsel omitted in two 57

SolS pagedeiitotibiaQi: for rehearing. These motions raise substantial arguments

as implicating compelling DueiProcessland interest of justiceoconcerns -• whether

Appellant received the "meaningful appeal" guaranteed by Due Process due to

appeal counsel's renderring of ineffective assistance of counsel. See, Robinson

v- State' 16 S.W.3d 808,813(Tex.Crim.App.2000)(vacating and remanding to court

of appeals for consideration in the first instance of ineffective assistance

of counsel). While the instant Appellant's procedural posture is slightly dif

ferent from that in Martinez, in that no court has recognized Appellant's com

plaints about his appeal counsel's brief omitting issues that should have been

raised, the, same considerations of justice and Due Process are at issue, hence

the result should be the same, in that the instant Appellant should be allowed

to return to the direct appeal briefiiig- stage of the case, and be given the

opportunity to proceed either pro-se as he has requested, or with the assist

ance of new appointed appeal counsel. Martinez,163 S.W.3d @ 89-91.

7. Supporting this result is the facts that based on appeal counsel's mistrial

arguments facts, and the easily accomplished further research done oh the issue

as the State shows in iti's Brief, ANY competent appeal counsel not trying to

deliberately lose his client's appeal could have argued a direct appeal record

based ineffective assistance of trial counsel claim, for trial counsel's employ

ing the clearly unsound trial strategy of revealing to the entire jury pool

during voir dire and jury panel during trial, that Appellant had prior convict

ions, and by not objecting to the State's introduction of CD video evidence

showing Appellant admitting to the police he was "on drugs" on the day of these

offenses, and was "on thirty years parole" as well, during the guilt/innocence

phase of trial. The Court of Appeals has already adopted as fact that the State

previously introduced CD video evidence as described. Appx.,36-37,Mem.Pp.,4-5. By

also now adopting as fact that trial counsel poisened the entire jury pool

with his voir dire comments as described, provides the full fledge basis for

a meritorious record based direct appeal ineffective assistance of counsel

noldln9- Robertson v. State,187 S.W.3d 475fTPy.r,Hm.arr ->nn^ ^ ^m^ni see,

Robertson v. State,214 S.W.3d 665,667-68(Tex.App.-Waco 2007 no pet.)(IAC holding

finding the jury heard evidence about two prior convictions "that the State

would not have been able to develop without Robertson's counsel 'opening the

door bo such: testimony. "); Johnson v. State, 172 S.W.3d 6,' (Tex.App.-- .Austin

2005)(IAC holding where trial counsel's ,failure to object to video evidence's

admissability was element of holding); Stone v. State,17 S.W.3d 348, 352-53(Tex

App.-corpus Christi 2000)(IAC holding finding trial record sufficient to show

IAC based on trial counsel's offering of prior conviction that would not have

come in otherwise, citing record from voir dire and bench conference):;;:, seepn.l.

The instant Appellant suffered the same deficient performance of counsel" here,

as in these above cited cases. Additionally, the Appellant suffered severe

prejudice from these errors given the jury found him guilty as charged on all

counts, and issued the maximum sentences allowable of three life sentences

and one twenty year sentence. Accordingly, ALL Appellant's convictions should

be reversed and remanded to the trial court for new trials. See, Strickland v.

Washington,466 U.S.668,694(1984); Robertson,214 S.W.3d @ 668-69; Stone.17 S,w73d

@ 253-54. Appellant is entitled to procedural and substantive reXief~on appeal.

Rodriguez,129 S.W.3d @ 562-64. Therefore, Appellant should be allowed to return

to the Court of Appeals, for a ruling on :the merits of his indicated issues.

Robinson, 16 S.W.3d ® 813; Martinez, 163 S.W.3d @ 89-91; Tex.R.App.P..47.1,49.

of tf^ri;^7'0 ™529,534(5th Cir.1985)(holding failure to object to a±rissicn

ofjefendant^s past cnmual record could have no strategic basis as it could not be considered

sound trial strategy; jury may have oonvicteefd because of the prior ccnvicticns; .revg conviction)

j&, Finally, further supporting returning this case to the direct appeal stage,

under the reasoning of Martinez,163 S.W.3d @ 89-91, Appellant raised his right

to represent himself pro-se in the Court of Appeals, by his citations to the

cases of Jiminez v. Quarterman,129 S.Ct.681,683-87(200() and Anders v. Califor

nia,386sq.S.738(1967), See Appx.49-52, 03/17/14 filed Pro-Se Motion,2,4. The

Court of Appeals below disregard of the pro-se representation on appeal issue,

probably violated Tex.R.App.P.47.1 requiring a vacate and remand order. Bledsoe

v. State,178 S.W.3d 824,827-28(Tex.Crim.App.2005).

<f. Appellant has raised or tried to raise several structural errors below,

such as false testimony, suppression of evidence, failure to correct false

testimony in trial knowingly when it appeared, and conspiring to cover-up the

arresting officer's unnecessary shooting of Appellant amongst other trial errors.

See, post., throughout; and see, 06/23/14 Motion for Rehearing,1-57; 07/17/14

Amended Motion for Rehearing,1-16. These issues are structural^errors, preclud

ing harmless error analysis, and require automatic revers

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