# Martin, Peter James

> Court of Appeals of Texas · December 31, 2014

URL: https://www.frixlaw.com/law-library/cases/4038464

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** December 31, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4038464

## How later opinions describe it (automated extraction)

- applying Rudd's "interest of justice" clause to abate and remand case to trial court
- applying Rudd, to grant procedural relief

## Opinion text

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, *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
falsnn^ ^ ^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).

••-.Appellant's use of a vehicle to commit the.offense
without a prior §38.04.conviction is a third degree felony. See Acts 201)1,82nd
Leg.,ch.920(S.B.1416),§3(approved by Governor 6-17-11). Clearly, both versions
became effective on September 1,2012. , each without reference to the other.
See Tex.Penal Code §38.04(West's 2012-13 Pocket Part)historical and Statutory
Notes on 2011 Legislation. This Court's Carner,364 S.W.3d @ 899 n.6-dicta merely
recognizes version 2's 3rd degree felony designation of the offense, without
recognizing version l's state jail felony designation of the offense and the
clear conflict created in this single statute as to the elements of and penal
ties assigned to Appellant's alleged §38.04(b) offense.

•I. Appellant argues §38.04(b) is unconstitutionally indefinite and uncertain
on due course of law grounds hence must be held void from inception. Harrell
v. State,165 Tex.Crim.384,385-87,314 S.W.2d 59©v 590-92(1958). Alternatively the
statute is unconstitutionally vague as written and applied renderring it void
from inception. USCA 5,14. Because the 2011 version of §38.11(b) is void, the
former :. 2009 version remains in effect for purposes of Appellant's conviction.
See e.g., Carner,364 S.W.3d @ 899("After the 2009 amendments became effective ,
a person was guilty of a state-jail-felony evading arrest if the actor / has
been previously convicted of evading arrest or if he used a vehicle while in
flight and has no prior conviction for evading arrest."); Ex parte Demmitt,664
S.W.2d 725,726(Tex.Crim.App.1986)(holding when controlled substance law was
held unconstitutional as written, former version of statute remained in effect
for Demmitt's case).

"3. Appellant's instant third degree felony conviction under §38.04(b) was
enhanced by prior convictions.: The jury issued the maximum punishment of "life"
in prison, in this case. Because the 2001 versions of §38.11(b) are unconsti
tutionally indefinite, uncertain and vague as written, the former 2009 version
of the §38.04(b) applies here which makes Appellant's offense a state jail
felony ahdchaving^maximum enhanceable range to punishment of 20 years in prison
clearly much less than life in prison. Because Appellant was punished by the
jury in this case, he is entitled to a reversal of the punishment imposed in
his case, and a remand to the trial court for a new punishment phase jury
trial. See Tex.R.App.P.44.2; Clay v. State,240 S.W.3d 895,905(Tex.Crim.App.2007)
(requiring appellate court to be persuaded beyond a reasonable doubt that the
jury's ^verdict on punishment would have been the same regardless of the error).

V. To the extent that this issue may not be raised for the first time in this
appeal, Karenev v. State,281 S.W.3d 428(Tex.Crim.App.2009), Appellant argues
the trial court below did not give trial counsel Mr. Boyd a reasonable time or
opportunity to examine the jury charges to formulate any unconstitutional as
written arguments for this evading arrest charge. See R.R.,v.9,pp.50-54. Mr.
Boyd expressly stated he had "about 12 objections" to the evading arrest jury
charges, id.,p.61, in a context of presenting unconstitutional statutory prov
isions arguments, id,pp.59-62. Mr Boyd informed the trial court he had not
had enough time to formulate his objections to the evading arrest charge be
cause of the trial court's denial of a reasonable time to formulate objections
to the jury charges, id.,p.61. Therefore, Appellant should be excused from
raising an unconstitutional stfciute objection in this factual context. Estrada
v. State,313 S.W.3d 274,287(Tex.Crim.App.2010); Kesaria v. State,189 S.W.3d 279,
282(Tex.Crim.App.2006); Cobb v. State, 95 S.W.33- 664,1366 (Tex.App.-Hous. [1 Dist] 2002,
no pet). Alternatively, Appellant argues trial counsel Mr. Boyd's failure to
preserve this issue in the trial court was blatant ineffective assistance of
counsel on this record. Cannon v. State,252 S.W.3d 342,347(Tex.CrirruApp.2008);
Robinson v. State,16 S.W.3d 808,813(Tex.Crim.App.2000). Accordingly, this issue
is properly reviewable in Appellant MArtin's case. See Tex.R.App.P.Ann., Rules
33.1, 38.9(West's 2011 ed.). Tex.R.App.P.44.2(a).

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 CON
TINUOUS COURSE OF CONDUCT, REQUIRING VACATING THE ENHANCED EVADING
ARREST COUNT'S CONVICTION AND SENTENCE AND DISMISSING THE CHARGE

I. Appellant's four count indictment alleges in pertinent parts as follows:

Count I
"...while using or exhibiting a deadly weapon, to wit: a motor vehicle,
intentionally or knowingly threaten O Azwell, a public servant act
ing in the lawful discharge of an official duty, with imminent bodily
injury, and the Defendant knew C. Azwell was a public servant. "OR. ,39.

Count II
"...intentionally flee from O Azwell, a person the defendant knew
was a peace officer attempting lawfully to arrest or detain the defen
dant, and the defendant used a vehicle while ... in flight, And ...
the Defendant did then and there use or exhibit a deadly weapon,
to wit: a motor vehicle." OR.,39.

Count I would not require proof of any fact that Count II does not, as O Azwell
being threatened or endangered by Appellant's driving in Count II is implied
or imputed by Count I. Zuliani v. State,335 S.W.3d 213,218(Tex.App.-Austin
2011), affd & remanded for further proceedings, 353 S.W.3d 872, on remand,
383 S.W.3d 289,297(Tex.App.-Austin 2012 pet refd)(citations omitted); Blockbur-
ger v. U.S.,284 U.S.299,304(1932); Williams v. State,No.03-06-00039-CR(Tex.App.-
Austin 2007). The State's position on the basic facts of this case is that
Deputy Azwell's pursuit of Appellant began on a freeway, led to a dead end
street in a rural neighborhood, where Azwell shot Appellant in his chest while
he was "continuing his flight" in his car, resulting in Appellant being arrested
by surrendering. See 02/10/2014 filed State's Brief,1-2,8-9; Appx.vl^r R.R.,v.5,
p.90(Azwell's testimony that he shot Appellant on the dead end street while
Appellant continued to evade). This uncontradicted evidence shows that Appellant
committed a single continuous act of evasive..drivings, which as a matter of law
and "Texas cfifflihaliiappi^lfipEeceldenfcsj,,' cannot be converted into seperate crimes
by employing "stop^action" prosecution pleadings. Hobbs v. State,175 S.W.3d
777,779-81(Tex.Crim.App.2005); and see, Zuliani,383 S.W.3d @ 295 n.5(using
"stop-action" quote). Here, the Count I aggravated "threat" to Azwell is based
on the SAME, CONTINUOUS ACT OF RECKLESS EVASIVE DRIVING constituting the Count
II "fleefing]" from Azwell allegations..Therefore, these counts, as charged,
violate the prohibition against Double Jeopardy, if based on the same conduct.
Zuliani,335 S.W.3d @ 218[citing, Blockburger,284 U.S. @ 304], affd, 353 S.W.3d
872(Tex.Crim.App.2011). Indeed, only Deputy O Azwell and noone else is named
in both counts I and HJ, supporting a Double Jeopardy multiple punishments
conclusion here. Williams,supra.[citing, Ex parte Hawkins,6 S.W.3d 554,556,561
(Tex.Crim.App. 1999 & Berger v. ;State, 104 S.W.3d 199",205(Tex.App,-Austin 2003, no
pet) ]("However, in this case, Williams was indicted for asingle offense involving asingle victim,
Alejandro Catemaxa. The State did not name Claudio Catenaxa as a victim in either count of the
indictment.").
8
3. The Court of Appeals original, unpublished opinion has already rejected
the State's position that other roadway traffic had to pull to the shoulder
to allow the Appellant and his gedice pursuers to pass. Compare, 02/10/14 filed
State's Brief,1(claiming the facts but making no deadly weapon argument), with,
Appx.,38 - 06/27/14 Mem.Pp.,6(finding Appellant committed several traffic viola
tions, admitted he was guilty of "evading arrest" per-se, but without comment
on if his driving was actually dangerous due to proximity to another person).
There -is no evidence in the record to meet the State's burden to prove beyond
a reasonable doubt the "actual endangerment" of any person due to "proximity".
Drichas v. State,219 S.W.3d 471,475-77(Tex.App.-Texarkana 2007)(holding "the
mere existence of some other motorist somewhere in the roadway" is insufficient
evidence of a deadly weapon motor veh%le allegation, as "an unspecified proxim
ity is necessary to show that actual danger existed, even though no person
was actually endangered."),pet refd[on remand from, Drichas v. State,175 S.W.3d
795,799(Tex.Crim.App.2005)]; and, Callfsc^w, State,218 S.W.3d 822,827(Tex.App.-
Beaumont 2007)[citing, Cates v. State,102 S.W.3d 735,738(Tex.Crim.App. 2003)].
Thus, the original unpublished Court of Appeals opinion implicitly rejects
the State's trial arguments in support of a deadly weapon motor vehicle finding
that Deputy Azwell was almost run over by Appellant's driving directly at him,
Appx.,7 - R.R.,v.9,pp.82-83,115-16, that Deputy Azwell felt "threatened" by
this alleged driving directly at him conduct, R.R.,v.6,pp.30,100, whereas trial
counsel had argued Azwell was NOT threatened, that "testimony was false, the
motive being to cover-up Azwell's unnecessary shooting of Appellant in the
chest through his passenger side window to arrest him, Appx.,7-9 - R.R.,v.9,pp.
96,98,100, hence there was reasonable doubt Appellant tried to actually endang
er anyone. Appx.,8 - R.R.,v.9,p.106-07. Because almost all of the evidence
and trial court arguments focus upon Deputy Azwell being actually endangered
and threatened by Appellant's continuous act of criminal evasion by vehicle,
the State violated the Double Jeopardy prohibition against multiple punishments
by indicting, prosecuting and convicting Appellant for both threat of Deputy
Azwell by use or exhibition of a deadly weapon motor vehicle, and, evading
arrest by fleeing from Deputy Azwell by use of a vehicle as a deadly weapon.
Zuliani,335 S.W.3d @ 218-19, affd, 353 S.W.3d 872(Tex.Crim.App.2011), on remand
reaching same result, 383 S.W.3d 289(Tex.App.-Austin 2012 pet refd); Hobbs,175
S.W.3d @ 779-781(single continuous criminal act of evasive driving cannot be
converted into seperate crimes by mere "change in locomotion").

3, The Texas Legislature has expressed it's intent to allow the multiple
punishments for an unenhanced evading arrest by use of a vehicle charge, Penal
Code §38.04(d)(as amended, added 2011), and one court has held an enhanced
by Tex.Code Crim.Proc.art.42.12,§3g(a)(2) evading arrest by use of a vehicle
as a deadly weapon charge does not violates Double Jeopardy within the scope
of those two statutes alone, Murphy v. State,01-08-00768-CR,01-08-00659-CR,2010
Tex.App.LEXIS 4JV3 at **16-17(Tex.App.-Hous.[1 Dist.] 4-22-10 pet refd 2x);
the instant case is distinguishable as not involving the two statutes at issue
in Murphy, but the three statutes of Penal Code §22.02(a)(2)(b)(2)(B), Penal
Code §38.04(b)(2)(A) and Code Crim.Proc.art.42.12,§3g(a)(2). In a strikingly
similar three statute enhancing scheme case, the Fifth Circuit Court of Appeals
held while there was a clearly expressed Congressional intent to permit multi
ple punishments for the ppedicate offense (mail or wire fraud) enhanced by
the use of fire taer.e.".was ho Boubil.erJebpMdy,iiolationsc£ in that leohtext
t'similarrto-Murphy,suprau) but went on to hold "it is unclear whether Congress
intended the enhancement in §844(b) to apply to every arson offense", requiring
a Blockburger analysis. See, U.S. v. Severns,559 F3d 274,286,289-90 & nn.52,53,
82(5th Cir.2009). The Court of Appeals concluded the "unit of prosecution"
involved "was a single use of a single firearm" imposing multiple punishments,
and therefore was barred under it's Federal application of Blockburqer and
the Double Jeopardy Clause, id.,559 F3d @ 291; see, Zuliani,383 S.W.3d @ 298
(searching for the "best indicators of the allowable unit of prosecution pre
scribed by the Legislature."). Given that there is no similar Texas case inter
preting three statutes, the Severns analysis should be applied here. And since
under Hobbs,175 S.W.3d @ 779-81 Appellant's single continuous act of evasive
driving cannot be converted into seperate crimes, as was done in the instant
case, this Court should also conclude that Appellant's single use of a single
motor vehicle invokes no clear Texas Legislative intent to impose multiple pun
ishments in the instant case.requiring the Severns result.

H, Relief is also required under the eight (8) "Ervin-Factors" test. See,
Zuliani,353 S.W.3d 872, remanded, 383 S.W.3d @ 295-97[both cases citing Ex
parte Ervin,991 S.W.2d 804,814(Tex.Crim.App.1999)]. Factors 1,3 & 4 could sup
port the inference that the Legislature intended Appellant's charged offenses
to be punished seperately, because the evading arrest and threat of a public
servant charges are in seperate statutory sections, they are not named similarly
and evading arrest by use of a vehicle as a deadly weapon while in flight is
a lesser degree of offense that threat of a public servant by use of a vehicle as
a deadly weapon. Compare, Penal Code §38.04(b)(2)(A)(3rd degree felony), with,
Penal Code §22.02(a)(2)(b)(2)(first degree felony); Zuliani,383 S.W.3d @ 298.
However, factors 2,7 & 8 do not support such an inference, id.(noting the Leg
islature must make manifest it's intention to punish a single act twice). The
2nd factor is inapplicable because offenses listed in seperate statutory sect
ions cannot be stated in the alternative, id. The 7th factor, being the Block-
burger test, suppports the conclusion that the Legislature intended this Appel-.
lant's single continuous act of evasive driving to be only punished once.' See,
infra., and, Zuliani,383 S.W.3d @ 298[citing, Zuliani,335 S.W.3d @ 218-19].
Finally, there is nothing in these three statutes legislative histories to
indicate that the Texas Legislature intended these offenses, as charged, tp be
punished seperately. Therefore, the instant analysis result hinges on the 5th
and 6th Ervin Factors, i.e., whether the offenses share a common focus, and
whether that focus indicates a single instance of Appellant's conduct. The
"focus" or "gravamen" of these two offenses will indicate the "allowable unit
of prosecution prescribed by the Legislature." id. Analyzed are whether the
two offenses focus on being a "result of conduct" crime where unspecified con
duct is criminalized because of it's result (i.e., aggravated assault causing
serious bodily injury), a "nature of conduct" crime criminalized because the
nature of the act itself is unlawful (i.e., assault by threat) or a "circumstan
ces surrounding the conduct" crime where otherwise innocent behavior becomes
criminal due to the circumstances under which it is done. id.[citing, Huffman v.
State,267 S.W.3d 902,907(Tex.Crim.App.2008), McQueen v. State,781 S.W.2d 600,603
(Tex.Crim.App.1989) & Johnson v. State,364 S.W.3d 292,298(Tex.Crim.App.2012)].
Some offenses contain two focus elements and the question becomes which aspects
of the statutes predominates, id.[citing, Huffman,supra.].

3", Evading arrest by use of a vehicle in a dangerous manner is not focussed
on the result of the driving, since the offense is committed regardless of
whether dangerous driving causes any harm. Murphy,2010 Tex.App.lEXIS at *13
Rather, this offense is a nature of conduct issue because evading arrest is
unlawful regardless of the consequences, and a circumstances of conduct issue
because evading arrest by driving dangerously is a circumstance meant to be
criminalized, ^.(distinguishing between "reckless" and "dangerous" driving).

10
la. Threatening a public servant by use of a vehicle is not focussed on the
result of the threat. It is irrelevant if a public servant actually felt threat
ened. Dobbins v. State,228 S.W..3d 761,766-67(Tex.App.Hous.[14 Dist.]2007)[citing
Olivas v. State,203 S.W.3d 341,342-51(Tex.Crim.App.2006)]. Rather this offense
is also a nature of the conduct issue because assault-by-threat as the basic
underlying offense is a nature of the conduct offense, Zuliani,383 S.W.3d @ 298
[citing, Marinos v. State,186 S.W.3d 167,174(Tex.App.-Austin 2006 pet ref d)]and
also a circumstances currounding the conduct issue because this offense must
be committed under circumstances that put a public servant under threat of
imminent bodily injury. E.g., Zuliani,383 S.W.3d @ 299.

7. Therefore, the focus or gravamen of these two offenses indicates a single
continuous instance of conduct, since the nature and circumstances of Appellants
driving form the focus or gravamen of the offenses, and a single continuous
act of evasive driving cannot be converted into seperate crimes by the State
electing in one count to prosecute a threat or danger to Deputy Azwell specific
ally and electing in a second count to prosecute a danger to the general public
or Deputy Azwell, by "stop-action" prosecutions. Hobbs,175 S.W.3d @ 779-81;
Zuliani,383 S.W.3d @ 299[citing, Huffman,supra., Fernandez v. State,316 S.W.3d
354,369(Tex.App.-Ft. Worth 2010 no pet)(dissent) and Ervin,supra.]. Accordingly,
under a straight Federal Blockburger test as applied, in Severns, the "clearr
expression" test of the "modified" Blockburger analysis. ,ag±Led,3n; Texas caselaw,
OR THE "Ervin-factors" test, Appellant's instant conviction for evading arrest
by use of a motor vehicle as a deadly weapon while fleeing from Deputy Azwell,
as the lesser degree of felony and second count alleged in the indictment,
must be vacated and dismissed. Ex parte Caravos,203 S.W.3d 333,339 & n.8(Tex.
Crim.App.2008); and see, Zuliani,383 S.W.3d @ 300(retaining deadly conduct
conviction, vacating reckless driving conviction); Reece v. State,03-03-00490-
CR, 2004 Tex.App.LEXIS 6815(San Antonio 7-19-04 pet refd)(State admitted to
Double Jeopardy, by counts of aggravated assault on a public servant and aggra
vated assault being one count included within the other count; retaining aggra
vated on public servant conviction, vacating aggravated assault conviction);
U.S. v. Miller,576 F3d 528,531(5th Cir.2009)(single action of attempting to
run over two officers, could'nt support two seperate convictions, citing cases
as settled law) J'.USCA 5; Tex.Const.,Art:I>§14; Sotelo /suprav; ,•: -Tex> r.A'pp. p:,47 $1.

4. LEGALLY INSUFFICIENT EVIDENCE OF THE USE OR EXHIBITION OF A DEADLY
WEAPON MOTOR VEHICLE, BECAUSE NOONE WAS SHOWN TO BE ACTUALLY ENDANGER
ED BY PROXIMITY TO APPELLANT'S DRIVING, REQUIRING DELETION OF THE
DEADLY WEAPON FINDINGS FROM THE EVADING ARREST JUDGEMENT OF CONVICTION

Facts

In trial, Deputy Azwell and Chief Hadrych testified Appellant's driving
while they pursued him was "reckless", R.R.,v.5,p.79; R.R.,v.6,pp.66-67, since
he "crossed into oncoming traffic" and "perhaps seven to ten vehicles... had
to pull over to the shoulder to get out of the way". R.R.,v.5,pp.82-83. This
was the State's position in arguing to the Court of Appeals initially. See
02/10/14 filed State's Brief,!. However, the Court of Appeals did not adopt
this as fact. See, Appx. 38 - 05/21/14 Mem.Pp.,6. Chief Hadrych speculated
Appellant's reckless driving "could have caused someone serious bodily injury"
or "death", R.R.,v.6>;,p.67, and Deputy Azwell claimed Appellant's driving had

11
"threatened" him when Azwell cornered Appellant on a dead end street and Azwell
claimed Appellant drtfve directly at him while "continuing his flight" or "evad
ing". R.R.,v.5,pp.90,100. In closing arguments the State emphasized that Azwell
has not been the same since Appellant drive directly at him and how much fear
Azwell was in as a result. R.R.,v.9,p.114. However, noone testified during
this entire trial that Appellant's driving was "actually dangerous" nor/of
any person's other than Azwell's proximity to Appellant's driving conduct. While
the State relies upon Deputy Azwell's in-car video camera evidence submitted
in trial to support the use of Appellant's vehicle as a deadly weapon, 02/10/14
filed State's Brief,1,8, and argued in closing that this evidence showed the
Appellant "passed that person in the intersection" and "tries to pass an 18
wheeler, and you can see at least four or five vehicles have to pull out of
the way", R.R.,v.9,p.1$9, in fact Deputy Azwell's incar video camera evidence
fails to show any other person being actually endangered by close proximity
to Appellant's alleged reckless driving conduct. R.R.IO-State's Ex.204(video).

Arguments

A.

First, Deputy Azwell was never threatened by Appellant's driving directly
at him, because as argued elsewhere in this brief Deputy Azwell has been shown
to have falsely and perjoriously testified in regard to this factual allegation.
His testimony must be discounted as a result, Therefore, Deputy Azwell cannot
serve as an evidentiary basis for supporting Appellant's driving dangerously
as opposed to merely recklessly for the evading arrest deadly weapon findings.
B.

I. Assuming for purposes of argument that Deputy Azwell's testimony can serve
as an evidentiary basis for the evading arrest by use or exhibition of a deadly
weapon charge, then his own testimony, and the incar video camera evidence proves
Appellant did not place Deputy Azwell in actual danger by driving directly
at him in this case, but instead Deputy Azwell ran from a safe location behind
his car into Appellant's vehicle's path.; from where he shot Appellant, then
jumped out of Appellant's vehicle's path again. Azwell unreasonably created
the encounter that ostensibly justified his use of deadly force to protect
himself by shooting Appellant, in violation of USCA 4. Swann v. City of Richmond,
498 F.Supp.2d 847, ,..-, 863(E.D.Va.2007) [quoting, Estate of Starks v. Engart,
5 F3d 230,232,234-35(7th Cir.1992], affd, 309 Fed.Appx.757, 2009 WL 180291.
Independant of the 4th Amendment violation, this factual scenario must neces
sarily prove insufficient evidence of threatening Deputy Azwell by driving
dangerously. See, Brown v. State,183 S.W.3d 728,733(Tex.App.-Hous.[1 Dist.]
H-23-05 reh'g denied 1-4-06)(finding no record testimony "the gunshot caused
the vehicle to swerve in any direction, suggesting that appellant drove straight
for the exit", was held to be evidence sufficient to support a lesser included
offense charge on reckless driving, in an aggravated assault on a public servant
conviction's appeal, finding error in denying that requested instruction, but
no harm due to similar "deadly conduct" lesser included offense charge being
given to uphold conviction).

a. The incar video evidence irrefutably establishes that in four (4) seconds
Deputy Azwell jumped out of his car when you hear his door slamming on the
video'a audio portion followed in four (4) seconds by the shooting of Appellant,

12
and according to Azwell's testimony when he exited his vehicle, he ran into
a "car-length-and-a-half space between the rear of his car and a resident's
vehicles also parked there, R.R.,v.5,pp.86-87, Appellant drove directly at
Azwell, id.,p.88, Azwell drew his weapon, shot at Appellant and then "back[ed]
out of the way ... to take coyer behind [Azwell's] vehicle", id.,pp.88-90; also
see,, R.R.,v.6,pp.40-41| Appx., 1(AzveJi- testimony)•. - --There'-is NO.evidence.lAppe.iiaW:
airaedfhis car in any other; direction ±han the space between the rear of Azwell's
car and the resident's vehicles also parked there. Brown,183 S.W.3d @ 733.

"3. On this record, there is insufficient evidence kg provel Appellant used
his vehicle as a deadly weapon against Deputy Azwell. But for Deputy Azwell
running into the car-length-and-a-half space Appellant was already driving to
wards, no danger or threat to Deputy Azwell could have occurred. See Penal Code
§6.04(a)("Concurrent Causation"). Section §6.04(a) applies to cases like this
Appellant's. Ferrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.2001)(aggravated
assault case). Section 6.04(a) makes clear that Appellant is not criminally
liable here because Deputy Azwell's conduct alone of jumping in front of Appel
lant's already aimed car was clearly sufficient by itself to result in his
being endangered by Appellant's driving, and Appellant's driving alone while
-aimingv directly; for the unobstructed space:betw©enC«eMclesvvtolescape was::..insu£ A. Legally Insufficient Evidence

\. The statutory elements of the charged offense in this case are as follows-
(a) A person commits an offense if the person: ...(2) intentionally or knowingly
threatens another with imminent bodily injury, ... Penal Code §22.01(Assault).
(a) A person commits an offense if the person commits assault as defined in
§22.01 and. the person: ...(2) uses or exhibits a deadly weapon during the com
mission of the assault, (b) An offense under this section is a felony of the
second degree, except that the offense is a felony of the first degree if:...
(2) Regardless of whether the offense was committed under Subsection (a)(1)
or (a)(2), the offense is committed: ... (B) against a person the actor knows
is a public servant while the public servant is lawfully discharging an official
duty, ... Penal Code §22.02(Aggravated Assault). Here, the focus is on the
legal- insufficiency of the evidence to prove the Appellant intentionally or
knowingly threatened Deputy Azwell with imminent bodily injury by driving his
car directly at Deputy Azwell. An offender driving directly at an officer must
be proven beyond a reasonable doubt, and is a factual issue present in all
identical caselaw. Dobbs,supra.,2013 Tex.App.LEXIS 3050(finding sufficient
evidence^ on egregious facts of appellant "accelerated towards him. The officer
fired his weapon as the car approached and then jumped out of its path just
before it could strike him."): Dobbins,228 S.W.3d @ 765-66(finding evidence
sufficient as appellant drove directly at officer, then stoped at officer's
direction, then moved car forward striking officer); Whiddon v. State,10 - 06 -
00085-CR, 2007 Tex.App.,LEXIS 916(Tex.App.-Waco 2007)(finding evidence suffic
ient as Whiddon "attempted to evade the roadblock", then "drove his truck toward
the trooper, so that the trooper believed that Whiddon was going to run over
him amd. he feared for his life", "Whiddon would have hit the trooper if the
trooper had not moved out of the way; and that Whiddon veered away only after
the trooper shot out one of Whiddon's tires."); Baxter v. State,12-03-00042 - CR
2004,Tex.App.LEXIS 4861(Tex.App.-Tyler 5-28-04 pet ref d) (finding evidence suffi
cient as appellant "drove his car at [officer] Swan in an effort to escape.");
Brown v. State,11-03-00253-CR, ,2001 Tex.App.LEXIS 8479(Tex.App.-Eastland 10-28-04,
pet ref d)( finding evidence sufficient as officer "testified that appellant
drove his vehicle directly at him while he was standing outside his patrol
car, forcing [him] to have to jump out of the way to avoid being hit."); U.S. v.
Miller,576 F3d 528,529-30(5th Cir.2009)(evidence sufficient as appellant was
trying to escape by driving through a narrow gap between 2 officer's cars,
while the 2 officers were standing in that gap between cars having to jump
out of the way). There are no cases on the books finding evidence sufficiency
in this context when the officer deliberately jumps in front of a suspect's
moving vehicle, as occurred in this Appellant's case, as a pretext to shoot
the suspect. Here, Deputy Azwell stepped in front of Appellant's already aimed
moving vehicle, just 1-2 second before Appellant could drive through the space
between cars Azwell had created, hence Azwell himself unreasonably created
the "threat" encounter that ostensibly justified his shooting the Appellant.
These undeniable facts demonstrate a Fourth Amendment violation. Swann v.
City of Richmond,498 F.Supp.2d 847,863(E.D.Va.2007)[citing, USCA 4 & Estate
of Starks v. Engert,5 F3d 230,232,234-35(7th Cir.1993)]. These undeniable facts
also, demonstrate insufficient evidence of threatening Deputy Azwell. Brown,183
S.W.3d @ 733(aggravated assault on public servant case, finding although the
officer was fairly close to the vehicle, there was no record testimony about
the vehicle swerving in any direction, suggesting the appellant drove straight
towards the exit, which supported a denied "reckless driving" instruction,
^Ut,finding error narmless as "deadly conduct" instruction was given). The same

22
basis for relief in Swann and Estate of Starks,and the same basis for finding
error in Brown, exists in the instant Appellant's case.; On this record, there
is legally insufficient evidence that Appellant "intentionally or knowingly"
"threaten[ed]" Deputy, Azwell "with imminent bodily injury", because of Deputy
Azwell's\own trial testimony that he stepped into the path of Appellant's car
1-2 seconds before snooping Appellant. There is no evidence in this record
that absent Deputy Azwell's deliberately jumping in front of Appellant's car,
that Appellant's car would've somehow still been £imed, directly at the deputy.
There is no evidence that as Appellant drove through the resident's yard the
second time, he was not aiming for the car-length-and-a-half space between
Azwell's vehicle and the resident's vehicles. The only evidence in the record
shows Appellant's driving was "straight" if we are to believe the State's inter
pretation of the facts, and "directly" if we are to believe Deputy Azwell's
interpretation of the facts. R.R.,v.5,88-89; Appx.,l(same). -

a. Further supporting finding for the Appellant is Penal, Code §6.04(a), the
"Concurrent Causation" statute, which reads: "A person is criminally responsible
if the result would not have occurred but for his conduct, operating either
alone or concurrently with another cause, unless the concurrent cause was clearly
sufficient to produce the result and the conduct of the actor clearly insuffic
ient ." Section 6.04(a) applies to aggravated assault cases, and makes clear that
the Appellant is not criminally responsible if Deputy Azwell's conduct alone
of deliberately running right in front of Appellant's already moving and aimed
car was sufficient to cause the result of Deputy Azwell being "threaten[ed]"
by Appellant's driving, and Appellant's driving alone aimed not for Azwell
but for the space between vehicles before Azwell ran into that spa'ce was clearly
insufficient to result in Azwell being threatened. Cf: Daniel v. State, 577 S.W.2d
2^31,235-36(Tex.Crim. App. 1979) (on reh'g). Under this statute, Appellant should
also be acquitted, id. @ 236(dissent). It was error for the court of appeals
below to "focus solely" upon Appellant's driving directly at Azwell, while
"ignoring the fact that because of" Azwell's running directly in front of the
Appellant's car, this is the only reason Deputy Azwell could have been arguably
threatened as alleged. E.g., Farrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.
2001)(rev'g court of appeals granting relief, holding it was error to "focus
solely on the impact from the blow of the beer bottle - ignoring the fact that
because of that blow McManus fell back, hit his head on the ground, and died.").
3, Compare this case to Dobbs,2013 Tex.App.LEXIS 3050 at **2-4, where it
was unsuccessfully argued the officer "could have avoided the threat's fruition,
that is he could have escaped from the car's path", which was overruled by
the court, refusing to impose a duty on the officer to avoid the results of
the threat before an aggravated assault can occur. The Court ruled, "Appellant
has cited us to nothing in the record suggesting that [the officer's] threat
of being struck was something less than menacingly near or impending if he
stood his ground on land he lawfully occupied." id. Here, Deputy Azwell was'
NEVER in threat of being struck by Appellant's car, had he not stepped right
in front of it's path and blocked his intended exit through the cars parked
on the driveway. By the time Azwell jumped in front of Appellant's car, it
was too late to change direction. According to the irt&r video, Appellant would
have only had 1-2 seconds to change direction before Azwell shot him, which
is unreasonable especially when you consider Appellant only has one eye. Clearly
no rational trier of fact could have concluded Appellant was aware of, but
consciously disregarded, a risk of imminent bodily injury to Deputy Azwell,
when- he drove directly for the space between vehicle to continue evading. In

23
addition the evidence is clear and uncontradicted that Appellant was merely
aiming his car directly for the space between the rear of Deputy Azwell's car
and the resident's cars all on the1 resident's driveway, when at the last second
and within no more than 2 seconds total Deputy Azwell ran in.between that space
and the Appellant's path, then away from that path, for the purpose of shooting
the Appellant. Therefore, for these reasons no rational trier of fact could
have concluded or inferred that Appellant used or exhibited his vehicle as
a deadly weapon by driving "directly" at the deputy as opposed to "directly"
towards the only exit available to continue fleeinq. See, e.g., Brown,183 S.W.3d
@ 733(recognizing and applying:: a validity of there being no evidence of the
appellant's vehicle swerving in any direction, suggesting he drovec straight
for the exit, even though officer was fairly close to the vehicle, and holding
it was error to deny .lesser included instruction on reckless driving); and,
cf: Teeter- v. State,13-07-00578-CR, 2009 Tex.App.LEXIS,5668 at *13(Tex.App.-
Corpus Christi 2009)(finding sufficient evidence of "intent" under egregious
facts, including that Teeter was aware of the risk of serious bodily injury
to the deputy, when he was driving in reverse with the deputy hanging out his
car's door, the big size of his truck and the deputy's proximity to the truck,
such (;hat a rational trier of fact could have found Teeter's truck to be a
deadly^weapon), affd in pert.part, rev'd on ether-grounds, 2010 Tex.Crim.App.LEXIS 1206(9/22/10),
writ denied, 2012 Tex.Crim.App.Uipub.LEXIS 3134(4/4/12); Self v. State,05-02-01963-CR, 2004
Tex.App.LEXIS 7352 at *7(Tex.App.-Dallas 2004)(finding sufficient evidence.of
intent, by weighing Self's testimony "that he did not see Cabbellero in front
of his vehicle; he did not 'aim' at Cabellero or intend to hit him; was not
intoxicated, angry, or even in a hurry; and that he waited for traffic to stop
before crossing to the median", as some evidence the vehicle was not used in
a manner capable of causing death of serious bodily injury),PDR dis'md 2005 Tex.
Crim.App.LEXIS 278(3/2/05), PDR ref'd 2005 Tex.Crim.App.LEXIS 973(6/22/05).

q, Finally, the offense of threatening a public servant as charged in the
instant case, has as an essential element that "the public servant is lawfully
discharging an official duty." Penal Code §22.02(a)(2)(b)(2)(B)(Vern.Supp.2009);
Gonzalez v. State,574 S.W.2d 135,136-37(Tex.Crim.App.1978)(rejecting old argu
ment overruled by new statute and caselaw); Infante v. State,397 S.W.3d 731,735-
36(Tex.App.-San Antonio 2-6-13)(rejecting argument that detention was "unlawful"
because Infante was not speeding due to officer's "impossible" speeding calcul
ations); Brock v. State,295 S.W.3d 45,52(Tex.App.-Hous.[1 Dist.]2009 rehg denied)
(holding assault is a lesser included offense of assault on a public servant,
and affirmative evidence in the record that negates the lawful discharge of duty,
element of the offense required requested lesser included offense instruction);
Kaez v. State,287 S.W.3d 497(Tex.App.-Hous.[14 Dist.]2009)(similar, civil case)..
The precise issue here is Deputy Azwell's UNLAWFUL discharge of his duty to
arrest the Appellant, by his unconstitutionally shooting Appellant as described
throughout this section, by jumping in front of Appellant's car for a second
or two long enough to shoot Appellant and then jump out of the way again un
reasonably creating the "threat" encounter proscribed by the statute that osten
sibly justified his shooting of the Appellant, which violates USCA 4. Swann,498
F.Supp.2d @ 863; Estate of Starks,3 F3d @ 232-35; Moser v. Bascilla,865 FTsupp.
249,251,255(E.D.Pa.l994). To be- clear, this is not a claim of Deputy Azwell
unlawful discharging!1 his duty to arrest the Appellant for evading arrest. Cf:
Infante,supra.. The precise issue is Deputy Azwell's unreasonable seizure of
Appellant by unjustifiably shooting him in violation, of USCA 4. Such a scenario
requires the conclusion that the opposite of a vital fact within the State's

24
burden of proof has been shown on the record, that is that Deputy Azwell did
UNLAWFULLY discharge his duty to arrest Appellant, establishing legally insuf
ficient evidence. Standards of Review in Texas,34 St. Mary's L.J.,159(2002).

5. Deputy Azwell's use of deadly force to shoot Appellant was grossly dis
proportionate to his need for self-defense or the defense of others, hence
was illeqal under Penal Code §9.51(c). Fraire v. City of Arlington,957 F2d
1268,1276-77(5th Cir.1992). Additionally, this violated, the Fourth Amendment:
"The intrusiveness of a seizure by means of deadly force is unmatch
ed. The suspect's fundamental interest in his. own life need not
be elaborated upon. The use of deadly force also frustrates the
interest of the individual, and of society, in a judicial determin
ation of guilt and punishments ... The use of deadly force is a
self defeating way of apprehending a suspect and so setting the
criminal justice mechanism in motion ... a majority of police depart
ments in this country have forbidden the use of deadly force against
nonviolent suspects." Tennessee v. Garner,471 U.S.1,9(1985). "[T]he
test of reasonableness under the Fourth Amendment ... requires care
ful attention to the facts and circumstances of each particular
case, including .the severity of the crime at issue, whether the
suspect poses an "immediate threat to the safety of the officers,
or others and whether he is actively ... attempting to evade arrest
by flight." Graham v. Conner,490 U.S.386,396(1989)[citing, Garner,471
U.S. @ 8-9]. The test for reasonableness is an objective one, without
reqard for whether a police officer acted in "good faith" or "malic
iously and sadistically for the very purpose of causing harm", id.
@ 397. However evidence of an officer's "ill-will toward the citizen"
is relevant in "assessing the credibility of an officer's account
of the circumstances that prompted the use of force", id. @ 399 n.12.
Deputy Azwell's shooting of Appellant to stop his car, was grossly dispropor
tionate to the need for self defense under §9.51(c) and USCA 4, which is shown
by his calculated decision to run in front of Appellant's already aimed and
moving car for a second or two, just long enoughi to. shoot at him and then
jump out of the way again before he got hit, a fabricated "threat" employed
to justify shooting the fleeing . Appellant who did not appear to be armed or
otherwise dangerous. This conclusion is supported by several other facts such
as Azwell's decision to continue vehicular pursuit of Appellant down the dead
end knowing the vehicle was trapped on the dead end and Azwell could have used
his patrol car to simply block the dead end at it's entry. Fraire,957 F2d @
1272; Moser,865 F.Supp. @ 251,255(suspect pusued in his car until trapped,
then shot by police, and suspect rammed police car with his own car to escape
and got away, held to state a USCA 4 claim). Note that all Azwell's shots were
above the horizontal center line of Appellant's vehicle and the front hood
and side window pillar and passenger window shots were all clearly aimed at
Appellant's person, successfully hittinq him in the chest. Deputy Azwell clearly
did not intend to just stop Appellant's car here, which he could have done
by shooting out Appellant's tires, but chose not to. Whiddon,supra.(Whiddon
was fleeing^ by scar from police service of a warrant, drove toward trooper who
shot out Whiddon's tire to stop the vehicle),. And this deputy committed perjury
in trial saying Appellant drove "directly" at him to cover up his excessive
use of force in shooting Appellant, proven by the front-view laser test photo
evidence, fabricating the threat to justify his sadistic and malicious shooting,

25
of Appellant at issue, and of CSI Wright in trial acting $n concert with Deputy
Azwell to cover up his use of excessive force to shoot Appellant by effectively
falsely testifying about, or at least suppressing the existence of, the "front-
view" laser test photo result which irrebutably shows-the; Deputy falsely testi
fying when he testified he only shot the Appellant because the Appellant was
driving directly at him. Appellant argues this is clear! evidence of "ill-will
toward the citizen" the Supreme Court said was relevant to incur 4th Amendment
liability. Graham,490 U.S. @ 399 n.12; Fraire,957 F2d @ 1276-77[citing,Tex.Penal
Code §9.51(c)]. Appellant argues the above demonstration negates the lawful
discharge essential element of the instant offense in this case. Brock,295
S.W.3d @ 52. Because Deputy Azwell's shooting of the Appellant was unconstitu
tional and illegal under the peculiar facts and circumstances of this case,
the instant aggravated threat upon a public servant "lawfully discharging"
a public duty conviction must be reversed as based on the opposite of a vital
fact within the State's burden of proof, requiring reversal of conviction and
rendition •of a judgement of acquittal. Jackson,443 U.S. @ 319; Standards of
Review in Texas,34 St. Mary's Law J.,159(2002); e.g., Swann,498 F.Supp.2d @ 863;
Estate of Stacks,5 F3d @ 232-25; Brock,295 S.W.3d @ 527"

6, In conclusion, under any or all of the above arguments and authorities,
there is legally insufficient evidence to convict the Appellant for intedtlonally
or knowingly threatening Deputy Azwell by the use or exhibition of a motor
vehicle against a public servant lawfully discharging a public duty, requiring
the instant Penal Code §22.02(a)(2)(b)(2)(B) conviction to be reversed and
a judgement of acquittal renderred. USCA 14; Jackson,443 U.S. @ 319.

B. False Testimony by Police, Suppressed Evidence by Police and
Prosecutors, Failure of Prosecutors to Correct the False
Testimony When it Appeared, in Violation of Due Process

J. Here, as in the previous subsection's argument hereinabove, the focus
is again on the facts showing intentionally or knowingly threatening Deputy
Azwell with imminent bodily injury by Appellant's driving his car directly
at ms- deputy elements of the offense. See infra., Part A. This issue turns on a
Texas Court of Appeals ability to consider previously undisclosed State suppres
sed "front-view" laser test result photographic evidence discussed hereinabove
in the Facts section.
a. First, the Supreme Court has long required all courts to recognize the
"inexpertly drawn" allegation from pro-se litigants that perjured testimony
was used by the State to convict and the State's "deliberate suppression by
those same authorities of evidence favorable to him." Pyle v. Kansas,317 U.S.
213,215-16(1942). Thus, when previously "undisclosed evidence demonstrates
that the prosecution's case includes perjured testimony and the prosecution
knew, or should have known, of the perjury ... is fundamentally unfair, and
[the conviction] must be set aside if there is any reasonable likelihood that
the false testimony could have effected the judgement of the jury." U.S. v.
Agurs,427 U.S.97,103(1976). Even if only the police know of the false testimony
and/or suppressed evidence, this knowledge will be imputed to state prosecutors.
Ex parte Adams,768 S.W.2d 281,291-92(Tex.Crim.App.1989)[citing, Giglio v. U.S.,
405 U.S.150,153-54(1972)]. It is enough that the prosecutors should have recog
nized the misleading evidence. Ex parte Castellano,863 S.W.2d 476,481,485 & n.10

26
»,
i

(Tex.Crim.App.1993)[citing, Duggan v. State,778 S.W.2d 465,468(Tex.Crim.App.
1999)]. It is irrelevant whether the State solicited the false evidence, since
thei crux of- the- 14th Amendment violation is "deliberate deception" by false
or ipEfrjured testimony. Tassin v. Cain,517 F3d 770,778(5th Cir.2003). Perjured
testimony must be proven by more that trial record contradictions, inconsist
encies or conflicts in'witness testimonies. Craig v. TDCJ-CID,2013 U.S. Dist.
LEXIS 124976 at *13(E.D.Tex.2013)[citing, Koch v. Puckett,907 F2d 514,531( 5th
Cir.1990)J. The perjured testimony must be material, and will be found material
unless a reviewing court is convinced beyond a reasonable doubt that the perjury
did not contribute to the conviction or the punishment. Castellano, 863 S.W.2d (§
485; Johnson v. State,169 S.W.3d 223,230 & nn.28,29(Tex.Crim.App.2005)(stating
the\harm standard: is the same as the "beyond a reasonable doubt" standard
of Chapman v. Cal.,386 U.S.18,24(1967)), The critical question to answer is,
if without the perjured testimony and altered evidence, was there sufficient
evidence to sustain a finding of guilt? If not the conviction will be reversed.
Castellano,863 S.W.2d @ 485-86; and see, Issac v. Cain,2013 U.S.Dist.LEXIS
123864 at *6(E.D.La.2012)[citing Johnson v. Dretke,442 F3d 901,911(5th Cir.
2006)[(asking absent the knowing presentation of false testimony, whether no
reasonable fact-finder would have found him guilty).

3» Ii is a seperate Due process violation when the State allows false testi
mony to go uncorrected when it appears. Tassin,517 F3d @ 779[citing, Giglio
v. U.S.,405 U.S.150,153(1972)(quoting, Napue v. I11.,360 U.S.264,269(1953))].
When the State capitolizes on it in jury arguments, 3 violation meritsi?of;o.the
a:lleqatipns-rof-proese:-idehtifledrreve©sibi;e-i;errors:-in? rebuttal.,,: and by admitting
to the authenticity of Appellant's submitted "front-view" laser test photo
State's evidence compelling value for exoneration. 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 to Rule 49.2 order, court granted relief
refmg "life w/o parole" sentence to "life"); Reeves,2004 Tex.App.LEXIS 6815
(in Rule 49.2 response State,admits to Double Jeopardy violation by Aggravated
Assault on Public Servant, and Aggravated Assault convictions, vacating latter),.
Given the structural nature of many of Appellant's arguments and authorities
on thev merits of his pro-se identified reversible errors as briefed throughout
herein, and the fact that the record supports Appellant's pro-se demonstration
of false testimony, suppressed evidence and knowing failure to correct same
when it appeared in trial, Due Process concerns and the interests of justice
should compel this Court to consider Appellant's previously suppressed or un
available to him •;front-view" laser test photo State's evidence under Sims
v. State,99 S.W.3d 600,601-04(Tex.Crim.App.2003),;::.:". Sotelo,913 S,W.2d @ SOS^IO,
cf: Fury,186 S.W.3d @ 74 & n.5(Brady claim of withheld photo evidence was irejf
eeted, ibut holding previously "undisclosed Brady material photo evidence must
support Appellant's trial and appeal arguments, must be material, and must
demonstrate the phpto at issue would probably cause a different result in an
other trial, to be considered in a direct appeal context); Perkins,902 S.W.2d
@ 102, supp.opin., 905 S.W.2d § 452-53(claim of perjured expert witness testi
mony about a scientific study which appellant attached to his motion for re
hearing and argued for first time, was rejected for, first, not being part of
the appellate record, and second, for finding no support in the appellate record
otherwise; on supp.opin. court held it could take judicial notice of the attach
ed^ study because under Rochelle,supra'. it had discretion to consider new matter
raised for the first time in a motion for rehearing, for Due Process concerns
or in the interests of justice, but would not do so here based on weakness
of study as evidence and argument in support). After all, it is the State's
duty and obligation under Federal Due Process, when confronted with false or
perjorious State witness trial testimony and misleading evidence, to correct
the false and misleading testimony and evidence at that time. Tassin,517 F3d
@ 778-79; Vasquez,67 S.W.3d @ 239 & nn.19-20; Adams,768 S.W.2d @ 291. Once the
State is so ordered here, arguably Due Process would require the State to admit
Appellant's submitted, "front-view" laser test photo evidence is authentic,
their contents clearly show reasonable doubt exists as to Appellant's driving
"directly" at Deputy Azwell when shooting Appellant because the front hood
shot clearly came from well to the side of Appellant's vehicle and not from
the front as Deputy Azwell falsely testified to ultimately resulting in a rever
sal and acquittal on the count I aggravated threat of a public servant charge
and reversal and remand on counts £,3 S 4 for a new trial with a jury properly
informed on the lack of credibility of Deputy Azwell and CSI wright.
Should the State continue to take an adversexposition/ Appellant requests
the Court abate the appeal and remand for findings of fact on the authenticity
of the "frontview" laser test photos, and the impact of it's contents upon
the State's case in trial, after an evidentiary hearing with appointed defense
counsel to assist Appellant, under the heretofore cited substantive law, and
Tex.R.App.P.44.4, LaPointe v. State,225 S.W.3d 513,521-23 & n.9(Tex.Crim.App.
2007)' Spence v. State,758 S.W.2d 597,599-600(Tex.Crim.App.1988) & Michaelwicz
v. State, 186 S.W.3d 601,613-16(Tex.App.-Austin 2006rehg ovrJd,pet refd, cites emitted),
with ^return to the-iBe&umonto .Court- of; /Appealso for judgements -on the pro-se
identifiedreversible constitutional errors.
27A
*

5", The Beaumont Court of Appeals abused its discretion by only holding Deputy
Azwell'stestimony supported finding Appellant "tried to run him over" while con
tinuing "to evade arrest" justifying the deputy having "fired several shots
at Martin's car when Martin drove directly toward him" and Martin's "driving
directly at" the deputy "is not contradicted" by the record, see Appx.38-39,
5/21/14 Mem.Pp.,6-7, without also having construed the submitted "front-view"
bullet trajectory laser test photo evidence results proving the deputy's testi
mony that he was in front of Appellant's car driving directly at the deputy when
the deputy shot into the front hood, was irrebutably false and perjorious testi
mony. Appx.31-32(suppressed "front-view" laser test photo result, and State's
Exhibit "side view" laser test photo result). Had the Court construed this
"front-view" laser test evidence and the related arguments, it could not have
concluded this specific testimony was not contradicted. See infra.,Facts,HU3-8.

(o, Deputy Azwell's fatal testimony is that he was "directly" in front of
Appellant's vehicle driving "straight" at him when he shot into the front hood.
As the "front-view" laser test photo shows, that shot was obviously and irrebut
ably fired from the side of Appellant's car, just like the other two shots.
This photo evidence rises far above mere trial record contradictions, incon
sistencies or conflicts in witness testimonies. It demonstrates by the State's
own expert witness laser test photo results that Deputy Azwell falsely and
perjoriously testified he was right in front of Appellant's car while Appellant
was driving "directly" at him to run him over, because the front hood shot
laser beam is coming out of the front hood's bullet hole at what is conserva
tively an. 80^-85° angle to the side of the car. This demonstrates materiality.
Comparevf infra.,Part A.1,3, with, Castellano,863 S.W.2d @ 485.

~7, In trial it was undisputed that shots 2 and 3 came from the side of Appel
lant's car, one of which hit him in the chest leading to his surrender. The
State's bullet trajectory expert CSI Wright testified it was the first shot
that went through the front hood, explaining 'ttte trajectory after going through
the hood, it's vertical trajectory before going through the hood, but dodged
the issue of it's horizontal trajectory before going throught the hood. At this
exact point, trial counsel "passed" this witness, instead of introducing the
"front-view" laser test photo results into evidence and asking CSI Wright why
he was dodging the issue of the "front-view" laser test photo result showing
the deputy was firing into the front hood from the side of Appellant's car.
Appx.1-5(Deputy Azwell and CSI Wright testimonies). The State has admitted
trial counsel's main defense against the aggravated threat of a public servant
charge was Azwell fabricated his ..driving1;:"directly" at him testimony to cover
up his excessive force in shooting the Appellant from the side of the car.
Compare, 2/10/14 filed State's Brief,8-9, with, Appx.7-9 - Defense's Closing
Jury Arguments. Thus the front-view laser test photo result supports Appellant's
trial arguments with independant record support. Fury,186 S.W.3d @ 74 & n.5;
Perkins,905 S.W.2d @ 453. Trial counsel's failure to investigate or argue the
front-view f^ser test photo results to exonerate Appellant in this context
was ineffective assistance of counsel, Draughton v. Dretke,427 F3d 286,296(5th
Cir.2008), and is so outrageous as to demonstrate no possible sound trial strat
egy could exist for this deficient conduct allowing an ineffective assisian^t of
counsel on this direct appeal record. Garcia v. State,57 S.W.3d 436,440(Tex.Crim
App.2001). Since Appellant could not have been driving directly at Deputy Azwell
when he shot at Appellant all three times from the side of his car, and still
"threaten" the deputy by c&fyiying "directly" at the deputy, the evidence is
legally insufficient. See infra.,Part A.l,3(arguing innocence and citing cases).

28
Agurs,427 U.S. @ 107,109(asking if "the evidence is so clearly supportive of
of a claim of innocence" and if the evidence "is highly probative of innocence")
Castellano,863 S.W.2d @ 485-86(asking if without the perjured testimony and
altered evidence, there is insufficient evidence to sustain a finding of guilty)

9, The State knew of the existence of the "front-view" laser test results,
as it is, State's evidence, and a prosecutor had to select from all the laser
test photo evidence to only wind up with "side-view" laser test results in
the State's exhibits filed in trial. Clearly, these front and side view photos
contain Appellant's car being tested by police using a laser beam, the only
difference being that .the front-view laser photos have a clear exculpatory
value which the jury was prevented from being shown in this case, and the side-
view ( laser photos have a clear inculpatory value when the jury is presented
them'; without also being presented with the front-view laser test photo results
for context. These photos show the same laser beam shooting out of Appellant's
front hood bullet hole. The problem is the side view of the laser beam, out
of context, appear to show a. bullet'- is shot from the front of the vehicle.
However,'-/view;. the side view and the front view together, and it becomes clear
that if that Bullet, was, shot at xANY-'angle: to the vehicle, it was shot from
an 80°-85° angle to the side of Appellant's car. Viewed in context of Deputy
Azwellls false testimony that Appellant was driving directly at him when he
shot into the front hood, and CSI Wright's evasive testimony on whether his
laser test showed Deputy Azwell was in front of Appellant's car hence support
ing the deputy's claim Appellant was driving directly at him when he fired
at Appellant, or whether his laser test showed Deputy Azwell was on the side
of Appellant's car hence showing the deputy falsely testified in trial to es
tablish the essential fact to the prosecution's case that Appellant threatened
the deputy by driving "directly" at him, and the conclusion is inescapable
that the prosecution, Deputy Azwell and CSI Wright ALL "knew" about the false
testimony of Deputy Azwell, suppressed the existence of the "front-view" laser
test photos from the jury, and then failed to correct this false testimony
and suppressed evidence when it appeared in triai/.that would [show it. Hence, the
knowing presentation of false evidence and suppressed evidence is shown,
since the police themselves falsely testified and suppressed material evidence.
Castellano,863 S.W.2d @ 481,485 & n.10; Adams,768 S.W.2d @ 291-92[citing, Giglio
405 U.S. @ 153054].

\
V

>
40 yr. plea offer. Mr. Boyd emphasized the trial judge's comment to Appellant
improperly influenced the plea proceedings and Appellant's ability to proceed
with chosen counsel. R.R.,v.14,pgs.26-27,66-71.

A. The Right to Choice of Counsel

The Sixth Amendment confers a right to retain the attorney of one's choice.
Powell v. Alabama,286 U.S.45,53(1932). The right to choose counsel can be viol
ated even if erroneously substituted counsel is effective because the choice
versus the quality of representation are distinct rights. U.S.. v. Gonzalez-
Lopez,548 U.S.140,147-48(2006). While this right is not absolute under USCA.6,
giving trial courts the right to balance counsel of choice against the interests
of judicial integrity and efficiency, < Wheat,486 U.S. @ 162, this right IS abso
lute under Tex.Const.Art.I,§10. Jones v. State,926 S.W.2d 386,390-91 & nn.21,22
(Tex.App.-Ft. Worth 1996)[citing, Holloway v. State,780 S.W.2d 787(Tex.Crim.App.
1989) & Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989)].

Appellant's family paid Dick DeGuerin's law firm $55,000.00 via associate
counsel. Mr. Ward to represent Appellant, but only Mr. Ward represented him
during pre-trial hearings alone. Whetfplea negotiations failed, Mr. Ward demand
ed more money to go to trial, which Appellant's family did not have. However,
Appellant did not know of this contract and it's terms until after he'd turned
down tuuo plea offers, only finding out about the contract's terms during Ward's
motion to withdraw. When the trial judge advised Appellant to pay his lawyer
Mr. Ward "or he tsiould not do a good; job for you", this improperly interfered,
with the plea bargain process, and Appellant's choice of counsel Mr. Ward up
to that point. Remember, he came to the trial court with another hired lawyer
Mr; Boyd to fight against Mr. Ward's withdrawing from the.case. The trial judge
statement as such intimidated and coerced Appellant to dismiss Mr.Ward after
the motion to withdraw hearing, which was done a we&k later in the motion to
substitute hearing. The trial judge improperly interfered with Appellant's
choice of Mr. Ward as counsel when giving the improper advice to him to pay
Mr. Ward or else! Therefore, Appellant's Federal and State rights to choice
of counsel were violated by the trial court authorizing a new trial;.

B. The Right to Conflict-Free Counsel

See infra., Issue No.1,C,1-3. The Sixth Amendment confers a rightto the
effective assistance of conflict free counsel. An actual conflict exists whend
(£.€€<E0se counsel is compelled to compromise his duty of loyalty or zealous advo
cacy to the accused by choosing between' or blending divergent interests or
competing interests of the client. Periilo,265 F3d @ 781. If a fee contract
actually hinders an attorney's performance or prejudices the defendant by-ren
derring the result of the trial fundamentally unreliable, relief is authorized.
Beets v. Scott,65 F3d'1258,1274(5th Cir.1995)(en banc).

Attorney Ward compromised his duty of loyalty or zealous advocacy :fce
this Appellant, by taking every last dime from Appellant's elderly mother to
represent her son, locking her into a no trial contract after the payment know
ing' Only he would be representing Appellant for pre-trial hearings only, and
then the Appellant was never told- by anyone that there was a pre-trial only
clause to tAfep "contract". The State waived the issue of contesting Appellant's"
actual knowledge of the contract's terms by not disputing the issue during
themotion for new trial proceeding's Appellant's testimony on the issue. Had the

32
Appellant known of the terms of this alleged "contract" from the outset, he
would have known then his family didn't have any more money to pay lawyers,
his family had not purchased forWink the best TRIAL lawyers in Texas, and thus
would h^ve fought Mr,Ward's "contract" terms from the-outset, or at least made
a different decision , about the last plea offer of 35 yrs instead of outright
rejection. Clearly, Mr. Ward's interest in his "contract" was conflicting with
Appellant's interest lin obtaining the best defense counsel he could afford
in Texas, preventing Mr. Ward from loyally and zealously advocating for him.
most readily shown by Appellant's having to obtain -another lawyer Mr. Boyd
to fight against Mr. Ward's attempt to withdraw from representing him on the
record, Accordingly, Appellant is entitled to a reversal of all convictions
and remand to the trial court for a new trial, because :Mr. Ward was prevented
by his interest in the contract's fees and his relationship with the DeGuerin
Law Firm from vigorously promoting his welfare. Perillo,205 F3d @ 799; Beets,65
F3d @ 1274. :

C. Involuntary and Unknowing Rejection of 35 Year Plea Offer

Appellant argued his being kept in the dark about the fee contract's actual
existence and it's terms during the course of this pre-trial proceeding, up
to the September 20,2012 motion to withdraw hearing, deprived him of effective
assistance of counsel during the plea proceedings. This certainly prejudiced
Appellant because he rejected the 35 yr. plea offer without knowing that he
did not have a trial counsel in Mr. Ward or Mr. DeGuerin to go to trial with.
By the time this 35 yr.-plea offer was repeated on Sejtifcabfcler 20,2012 on the
record, the process had already bteeome so infected with the constitutional
error of lack of knowledge, that Appellant could not have made a valid decision
on the plea offer in that hearing, especially given his shocking discovery
during this hearing that all this time Mr. Ward never intended to go to jury
trial for Appellant at least not without $35,000.00 more money he did not have!
The trial judge's comment about Appellant had to pay his lawyer or else, simply
highlights Appellant's lack of knowledge of this contract's terms before the
September 20,2012 hearing itself. Therefore, Appellant is entitled to a rever
sal of the convictions and remand to the trial court for either a new trial
or reimplementaion. of the.35yr. plea offer. Lafler v. Cooper,No.10-209, 566
U.S. (2012), Slip Op.1-15; Strickland,466 U.S. @- 692.

Conclusions

Based on any or all of the above claims, Appellant requests his convictions
be reversed, and the case remanded to the trial court for a new trial.'1 Tex»R;(
App.P.47.1,49

33

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4038464. Public record. Not legal advice.