Robinson, Timothy Lee

...

,

NO.:

IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS, IN AUSTIN This document contains so~e

pages that ar~ of p~or quahiy

(PD-0238-ll: and, WR-80, 739-01 & 02) at the time of 1magmg.

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FROM THE SIXTH. COURT OF APPEALS

FOR THE STATE OF TEXAS I IN TEXARKANA lR!ECIE~VElD ~IN

(NO. (S): 06-09-00225-CR & PD-0238-ll) COURTOFCRIMINAU\PPEALS

:,;***************************************************·MAR 1 7 2015

RE: NO.(S) :: CR16,079 & (A/B)

IN THE 76th DISTRICT COURT Abet Acosta, Clerlk

FOR TITUS COUNTY, TEXARKANA, TEXAS

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IN RE TIMOTHY LEE ROBINSON

RELATOR

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RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

RELATOR files this ORIGINAL PETITION FOR WRIT OF MANDAMUS for the ambiguous

MEMORANDUM OPINION with MANDATE ISSUANCE by the SIXTH COURT OF APPEALS, reaching a

decision so arbitrary and unreasonable to amount to a clear and prejudicial error of

law and it clearly fails to correctly analyze or apply the law (See, In Re Kimberly -

Clark Corp., 228 SW3d 480, 484 (Tex App- Dallas 2007), totally ignoring this COURT OF

CRIMINAL APPEALS' PETITION FOR DISCRETIONARY REVIEW OPINION FOR REMAND, NO. PD-0238-11,

and in part through a dereliction of. duty .from both; RETAINED ATTORNEY CHARLES VAN CLEEF

under contract to complete the entire legal process but allowed, by the 76th DISTRICT

COURT, to withdraw sometime in JULY I AUGUST 2011 without answering and/or advising

RELATOR of the STATE'S PETITION FOR DISCRETIONARY REVIEW submitted to attorney of

record by U.S. mail FEBRUARY 14, 2011; and, sometime in SEPTEMBER / OCTOBER 2011, the

76th DISTRICT COURT'S APPOINTMENT of ATTORNEY CHARLES MAC COBB who failed to FILE ANY

FORM OF ANSWER TO "APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND" delivered VIA HAND DELIVERY

as certified NOVEMBER 19, 2012, clearly failing to analyze and apply law.

RELATOR further files this ORIGINAL PETITION FOR WRIT OF MANDAMUS for the clear

abuse. of discretion by: 76th DISTRICT COURT'S denial to reopel!l!SUPPRESSION HEARING (See

Black v STATE OF TEXAS, 362 SW3d 626 (Tex Crim App 2012)); and both, the STATE PROSECUTOR:'s

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2

and 76th DISTRICT COURT'S failure to answer RELATOR'S 11.07 APPLICATION by complying

with TEXAS CODE CRIMINAL PROCEDURES (TCCP, herein) ART. 11.07, Sec.3 (c) & (d),

addressing grounds on ATTORNEY'S OF RECORD denial to effective assistance guaranteed

under the SIXTH AMENDMENT of the UNITED STATES CONSTITUTION, ART. I, § 10 of the TEXAS

CONSTITUTION, and ART. 1.051, Sec. d (1 - 4) of TCCP, INTER - ALIA, arbitrarily

unreasonable, a clear and prejudicial error of law.

RELATOR in support of the aforementioned clear abuse of discretion for said WRIT

ISSUANCE would show the following:

I

RELATOR in the aforementioned ABUSES OF DISCRETION has no adequate remedy at law,

nor appeal process (See, In Re Kimberly Clark, supra, Id .. ), therefore it is incumbent

for this COURT OF CRIMINAL APPEALS to impose ORIGINAL JURISDICTION in this cause.

II

RELEVANT FACTS REVISITED

RELATOR, on AUGUST 25, 2008, upon DETECTIVE CESAR MUNOZ receiving an anonymous tip

that RELATOR was coming home from DALLAS with a large amount of drugs, was subjected

to an incomprehensible traffic stop for alleged failure to apply a turn signal where

NINTH STREET ends and "MERGES" into MARGARET STREET. However, there was "NO TRAFFIC

TICKET OR CITATION ISSUED FOR SAID VIOLATION."

DETECTIVE MUNOZ, a TRAINED. NARCOTICS OFFICER, while in his personal vehicle(unmarked

vehicle, i.e., NO OVERHEAD LIGHTS, NO SIREN, NO POLICE DECALS, etc.), in an assumed

attempt to make the alleged traffic stop, follows RELATOR to the driveway of a residence

at 511 MARGARET STREET, MT. PLEASANT, TEXAS where OFFICER SIMON PORTER moments later

had arrived with RELATOR handcuffed and in custody being detained by DETECTIVE MUNOZ

who. had:

l) removed RELATOR at gunpoint from drivers side of the vehicle and is placed into

custody and detained with handcuffs for an assumed UNCOMPLIANT BEHAVIOR, then kept

at a distance from the vehicle on the drivers side, evidenced through OFFICER PORTER'S

"DASH CAMERA VIDEO" entered into evidence at triaL with RELATOR "NOWHERE IN SIGHT;"

(MUNOZ'S PERSONAL VEHICLE also caught on the video evidencing NO OVERHEAD LIGHTS,

NO POLICE DECALS, etc.,csee STATE'S EXHIBIT J, DVD).

Upon arrival of OFFICER PORTER and assisting officers, the following transpires:

2) RELATOR handcuffed already is detained and questioned by OFFICER PORTER per orders

of DETECTIVE; MUNOZ, while MUNOZ has assisting officers! remove passengers;

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3

II

RELEVANT FACTS REVISITED

3) RELATOR'S passengers -his brother and brother's girlfriend - are removed from the

passengers side of the vehicle, handcuffed and searched, remaining in the passenger

area detained in custody;

4) WITHOUT PROBABLE CAUSE OR WARRANT TO SEARCH OR ARREST, DETECTIVE MUNOZ obstinately

assumes to obtain PROBABLE CAUSE TO SEARCH through the mulish accusation of smelling

marijuana and observing paraphernalia in PLAIN VIEW, HOWEVER, NOTHING WAS CONFISCATED,

NOR ·PRODUCED AT ANY TIME FOR CONFIRMATION OF SAID PROBABLE CAUSE;

5) MUNOZ continues his claim for a "LAWFUL SEARCH," claiming to have ask, and was

granted consent to search the vehicle, PRODUCING, NO SIGNED CONSENT TO SEARCH FORMS;

6) RELATOR has continually, from time of placement of handcuffs to detain in custody,

remained at a distance from the vehicle on the drivers side, with the passengers

handcuffed detained in custody on the passengers side of the vehicle,.now, DETECTIVE

MUNOZ assisted by OFFICER PORTER (BOTH, NARCOTICS OFFICERS), make an 11 minute

search of the vehicle, yielding NOTHING, NOT EVEN MARIJUANA OR ASSUMED PARAPHERNALIA

(EVIDENT FROM OFFICER PORTER'S DASH CAMERA VIDEO, ENTERED AT TRIAL);

7) NO ONE, ASSISTING OFFICER'S, ESPECIALLY, DETECTIVE MUNOZ and OFFICER PORTER,

TRAINED NARCOTIC OFFICER'S, "SEARCHING FOR 'ANY' CONTRABAND NOTICES A 'GALLON- SIZED,"

CLEAR BAGGIE OF CRACK COCAINE" on the ground in the morning light - on the passengers

side of the car, the other side of the car from where RELATOR had been hand cuffed

detained in custody several feet from the drivers side since the inception (off the

video produced at trial before, during, and after the search) - until after an 11

minute search yielding nothing, coincidently, "AT THE LAST MINUTE OFFICER MUNOZ FINDS

AND PRODUCES THIS ASSUMED EVIDENCE;"

8) NO ONE, AT ANY TIME - not officers, passengers, tipsters, nor anyone else - saw

RELATOR IN ACTUAL CARE CUSTODY, CONTROL, NOR HAS THERE BEEN PRODUCED EVIDENCE TO

RELATOR'S PERSONAL KNOWLEDGE OF ANY PARAPHERNALIA/ CONTRABAND, NOR WAS THE BAGGIE

FINGERPRINTED TO THE KNOWLEDGE OF EVIDENCE PRESENTED AT TRIAL;

9) RELATOR is arrested without warrant under an assumed PROBABLE CAUSE accusation for

the SMELL OF MARIJUANA AND PLAIN VIEW PARAPHERNALIA, PRODUCING NO EVIDENCE THEREOF,

after which MUNOZ claims to have requested and was granted CONSENT TO SEARCH, and

again, PRODUCES NO EVIDENCE OF A "CONSENT TO SEARCH FORM SIGNED BY RELATOR. However,.

RELATOR ARRESTED and PASSENGERS KEPT IN DETAINED CUSTODYi with all transported for

further questioning;

10) OFFICER PORTER, during transport,· confirmed td·RELATOR that Lakeshia Williams, the

front passenger, detained on the passenger side of vehicle confessed drugs are hers;

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II

RELEVANT FACTS REVISITED

On SEPTEMBER 15, 2009, the trial court holds a SUPPRESSION HEARING, with the STATE

introducing "ONLY ONE WITNESS," DETECTIVE CESAR MUNOZ, leaving the question as to why

OFFICER PORTER is not also called, who gave his opinion as to whether the "ENDING OF

NINTH STREET AND THE BEGINING OF MARGARET STREET LAWFULLY QUALIFY AS AN INTERSECTION

REQUIRING USE OF A TURN-SIGNAL." (See, NINTH STREET I MARGARET STREET I MUNOZ POSITION,

DIAGRAM ATTACHED; see also, CITY MAP, introduced by DEFENSE ATTORNEY, REPORTER'S RECORD,

volume 5, EXHIBIT DX -1).

1) MUNOZ assumedly observes RELATOR "TURN" the vehicle he was driving from NINTH STREET

that continues as MARGARET STREET and failed to use a turn signal;

2) It is "MUNOZ'S BELIEF THAT NINTH STREET ENDING INTO MARGARET STREET BEGINING IS AN

TNTERSECTION," thereby, based on belief it is an assumed traffic violation to drive

- . · cme,'s; vehicl~ from NINTH STREET to MARGARETI'STREET' ·wibho.ut· signaling the turn;

3) Based on "MUNOZ'S BELIEF THAT NINTH STREET ENDING INTO MARGARET STREET BEGINING IS

AN INTERSECTION" and failing to use a turn signal to "TURN FROM NINTH STREET TO

MARGARET STREET" is an assumed violation of law, WHILE DRIVING HIS PERSONAL VEHICLE,

MUNOZ, '"HAVING NO OVERHEAD LIGHTS, POLICE DECALS, QUESTIONING SIREN EQUIPTED, ETC.,"

assumedly makes an attempt to make a TRAFFIC STOP on RELATOR for the assumed

violation of law (EVIDENCED PERSONAL VEHICLE OF MUNOl7, FROM DASH CAMER1\. OF OFFICER

PORTER);

4) MUNOZ in his PERSONAL VEHICLE follows RELATOR into a driveway at 511 MARGARET, MT.

PLEASANT, TEXAS, moments before the arrival of OFFICER PORTER in his DEPARTMENT

VEHICLE "EQUIPTED WITH AUDIO I VIDEO CAPABILITY," where MUNOZ had already removed

RELATOR from the vehicle at gunpoint and had handcuffed and detained in custody on

the drivers side, evidenced from.OFFICER PORTER'S AUDIO I VIDEO RECORDING UPON

ARRIVAL WITH RELATOR "NOWHERE IN THE FRAMES OF THE RECORDING, and NO REPEATED COMMANDS

FR0~1 OFFICER PORTER UPON ARRIVAL," evidenced from AUDIO RECORDING OF OFFICER PORTER'S

RECORDING EQUIPTMENT introduced at trial;.

5) Upon entering the driveway of the residence, Lakeshia Williams, the front passenger,

had got out on the passenger's side of the vehicle;

6) With the arrival of OFFICER PORTER, MUNOZ has OFFICER PORTER take control of RELATOR,

"IMMEDIATELY CLAIMING TO SMELL MARIJUANA," yet at trial testifies RELATOR DID NOT

SEEM TO BE UNDER THE INFLUENCE OF ANYTHING, "CLAIMS TO OBSERVE DRUG PARAPHERNALIA

IN PLAIN VIEW/" but produced "NO EVIDENCE OF EITHER," and "CLAIMS THIS ASSUMED SMELL

AND PLAIN VIEW OBSERVATION GIVES HIM PROBABLE CAUSE TO SEARCH, BUT ASSUMEDLY ASK FOR,

AND ASSUMEDLY GIVEN PERMISSION TO SEARCH;"(PRODUCED NO SIGNED CONSENT FORM TO SEARCH).

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II

RELEVANT FACTS REVISITED

On SEPTEMBER 15, 2009, the trial co~rt holds a SUPPRESSION HEARING, (CONTINUED):

7) Tracy Harris, in the back seat on the passengers side was removed from the vehicle

prior to the search, and remained on the passengers side of the vehicle (evidenced

from TRIAL VIDEO PRODUCED);

8) MUNOZ then searched the vehicle for 11 minutes and found nothing in the vehicle,

however, after search of the vehicle turned up NO CONTRABAND, NOT EVEN MARIJUANA OR

PARAPHERNALIA IN PLAIN VIEW, MUNOZ NOW CLAIMS TO FIND A GALLON - SIZED BAGGIE FULL

OF CRACK COCAINE UNDER THE VEHICLE ON THE "PASSENGERS SIDE" WITH RELATOR FROM THE

CONTINUATION OF THE STOP HAS BEEN HANDCUFFED DETAINED IN CUSTODY ON THE "DRIVERS

SIDE" OF THE VEHICLE AS EVIDENT "RELATOR IS NOWHERE IN THE TRIAL INTRODUCED VIDEO;"

9) MUNOZ now ARREST AND HAS RELATOR TRANSPORTED BY OFFICER PORTER, WHO HAD CONFIDED

WITH RELATOR THAT LAKESHIA WILLIAMS HAD CONFESSED TO THE DRUGS BEING HERS, and she

along with Tracy Harris were being transported as well for further questioning;

10) MUNOZ "NEVER ISSUED A TRAFFIC TICKET / CITATION FOR THE ASSUMED TRAFFIC VIOLATION,

SPECIFICALLY, MUNOZ'S BELIEF THAT THE NINTH STREET ENDING INTO MARGARET STREET

BEGINING IS AN INTERSECTION AND FAILING TO USE A TURN SIGNAL TO 'TURN' FROM NINTH

STREET TO MARGARET STREET IS A VIOLATION OF TRAFFIC LAW," thereby questions the

"REASONABLENESS OF THE STOP TO SEARCH THE VEHICLE (See, KOTHE v STATE, 152 SW3d 54,

62 (TEX CRIM APP 2004));

11) MUNOZ claimed that the PROBABLE CAUSE TO SEARCH THE VEHICLE (in the absnece of

consent) would have been the SMELL OF MARIJUANA. The information from the anonymous

source was a factor for the stop to obtain a search. Therefore, MUNOZ acknowledged

that there was no way to test the reliability or credibility of the anonymous

informant except by finding contraband, and CLEARLY NO WAY OF FINDING CONTRABAND

WITHOUT A SEARCH WARRANT OR PROBABLE CAUSE, EXCEPT TO MAKE A TRAFFIC STOP;

12) That concluded the testimony and the court determined "THAT PROBABLE CAUSE EXISTED

FOR THE TRAFFIC STOP" and the RELATOR consented to the search of the vehicle. However,

the court indicated it would prepare FINDINGS OF FACT AND CONCLUSION OF LAW IN THE

CASE, BUT WAS NOT DONE UNTIL CASE ABATED BY THE COURT OF APPEALS.

The RELATOR was immediately arraigned; he pled not gjjilty. He pled true -to the;

enhancement paragraph. All of the other, then pending, defense pretrial motions were

granted. Trial presentation was scheduled to begin the next morning at 8;45 AM.

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II

RELEVANT FACTS REVISITED

THE EVIDENCE AT TRIAL

The issue of the legality of the initial traffic stop was re-litigated during the

RELATOR'S jury trial. The jury heard "THE RELEVANT FACTS REVISITED," listed herein at

pages 2 - 5, inter-alia, and especially MUNOZ'S "INCONSISTENT STATEMENTS (TEX PEN CODE

(TPC) § 37.06) WITH THE INTENT TO DECEIVE AND WITH KNOWLEDGE OF THE STATEMENTS MEANING

HE MADE THE FALSE STATEMENT UNDER OATH (TPC § 37.02, PERJURY), and THE FALSE STATEMENT.

WAS MADE DURING AND IN CONNECTION WITH AN OFFICIAL PROCEEDING, SPECIFICALLY THIS TRIAL,

AND WAS MATERIAL. THE STATEMENT WAS MATERIAL, REGARDLESS OF THE ADMISSIBILITY OF THE

STATEMENT UNDER THE RULES OF EVIDENCE, AS IT HAS AFFECTED THE COURSE AND OUTCOME OF

THESE OFFICIAL PROCEEDINGS, SPECIFICALLY, PRE - TRIAL SUPPRESSION HEARING, JURY TRIAL,

COURT OF APPEALS - APPEAL, PETITION FOR DISCRETIONARY REVIEW - COURT OF CRIMINAL APPEALS,

AND COURT OF APPEALS ON REMAND(TPC § 37.03, AGGRAVATED PERJURY; see also, TPC § 37.04,

MATERIALITY). WHETHER A STATEMENT IS MATERIAL IN A GIVEN FACTUAL SITUATION IS A QUESTION

OF LAW ( ID. I AT TPC § 37 .04). II

MORE SPECIFICALLY:

THE SUPPRESSION HEARING TESTIMONY

MUNOZ, under oath, testifies RELATOR "DOES NOT SIGNAL A TURN AT THE ALLEGED

INTERSECTION" where NINTH STREET "ENDS INTO" MARGARET STREET AS HE CONTINUES TO FOLLOW

THE "CURVE INTO MARGARET STREET WHERE NINTH STREET ENDS," thereby, "ONE STREET 'MERGES'

INTO THE OTHER FROM EITHER DIRECTION (See, NINTH STREET I MARGARET STREET I MUNOZ

POSITION, DIAGRAM ATTACHED; see also, "COMPARE," CITY MAP, introduced by DEFENSE

ATTORNEY, REPORTER'S RECORD, volume 5, EXHIBIT DX- 1)."

R8 - LITIGATED SUPPRESSION TESTIMONY AT TRIAL

MUNOZ, under oath, testifies and admits NINTH STREET and MARGARET DRIVE "MERGE"

at THEIR "INTERSECTION." When asked whether there were "ANY TRAFFIC SIGNS OF ANY KIND"

at "THE INTERSECTION," MUNOZ responded, "I don't believe. It's just a-- it's 'AN

INTERSECTION. I II

The SIXTH COURT OF APPEALS, CAUSE NO. 06-09-00225-CR, MEMORANDUM OPINION, concedes

''The record also contains evidence that the traffic from NINTH STREET 'DOES MERGE ONTO

lSHOULD STATE "INTO") MARGARET DRIVE.' The defense introduced a map which suggests

'NINTH STREET MERGES WITH MARGARET DRIVE.' The defense exhibit appears to be photocopied

from a commercial atlas (See, SIXTH COURT OF APPEALS, MEMORANDUM OPINION, at page 10,

ICI •• )."

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1

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

'·

"At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ described

as incorrect. When asked, '[D]oes NINTH STREET CURVE INTO MARGARET DRIVE?' MUNOZ

responded, 'YES, IT DOES, but the way that indicates is incorrect to the actual way

the street is. That's incorrect.' MUNOZ admitted THERE WERE NOT ANY TRAFFIC SIGNS AT

'THE INTERSECTION,' BUT TESTIFIED, '[Ninth Street] DOESN'T CONTINUE ONTO MARGARET

though there is 'AN INTERSECTION.'"(MEMORANDUM OPINION, supra, pg. 10, Id .. ).

"At TRIAL, ... The defense introduced a map which suggests NINTH STREET MERGES WITH

MARGARET DRIVE .•. According to MUNOZ, the defense exhibit was incorrect '[~]cause ln

[the defense exhibit], EAST EIGHTH does not run into MARGARET, and then you've got EAST

NINTH, and they run parallel to each other.'" (Id.).

APPELLANT'S BRIEF is confusing in that the "REPORTER'S RECORD (RR, herein)" is

mentioned at the beginning of "B. SUPPRESSION HEARING" and "C. TRIAL TESTIMONY" in the

first paragraphs, pages 10 & 13, and VOLUME NUMBER, thereafter listing "ONLY PAGE NUMBER

WITHOUT A LINE NUMBER (P, FOR PAGE NUMBER, herein, for comparison).

APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, however, lists "REPORTER'S RECORD (RR)"

throughout, listing VOLUME NUMBER (V},_ LINE :NUMBER~(L)-i. and, PAGE NUMBER (P).

APPELLANT'S [RELATOR'S] BRIEF CLEARLY REVEALS THE STATE [APPELLEE] upon presentation

to the jury removed the alleged evidence from the [STATE'S EXHIBIT 2] ENVELOPE "TO SHOW

TO THE JURY ALONG WITH THE ALLEGED WRITTEN STATEMENT." At this moment, defense attorney

"MADE AN OBJECTION TO THE EVIDENCE,.AND TO THE STATEMENT AS 1HEARSAY.'" SPECIFICALLY:

"Also, the State was once again allowed to place the alleged written statement of

the appellant AND EVIDENCE DESPrTE DEFENSE COUNSEL'S OBJECTION (HEARSAY); the statement

was read for the jury. Ibid. at (RR, ~ ~' f) 23, 24 - 25. THE ENVELOPE in which the

SUSPECTED COCAINE WAS PLACED (STATE'S EXHIBIT ~) and ~ DVD (State's Exhibit }_) WERE

ALSO ADMITTED, without objection. Ibid. at (RR, ~ ~~~) 28- 29.(APPELLANT'S BRIEF, Id.

at C. TRIAL TESTIMONY, page 13).

"The following witness.was Detective Ray yokel, a 'CHAIN OF CUSTODY WITNESS.' Ibid.

at (RR, V 3, P) 105.

"The next witness was Karen Shumate, A Texas Department of Public Safety Crime Lab

employee who 'TESTIFIED ABOUT THE NATURE OF THE CONTRABAND.'Ibid. at (RR, V 3, P) 109.

She 'TESTIFIED THAT THE CONTRABAND WEIGHED 294.64 g.'" Ibid. at (RR, V 3, P) 112.

(APPELLANT'S BRIEF, NO. 06-09-00225-CR, supra, Id. at c~ TRIAL TESTIMONY, page 16).

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II

RELEVANT FACTS REVISITED

CUNFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[STATE'S EXHIBIT 2]

STATE'S EXHIBIT 2 at the point of introduction into evidence was "THE ENVELOPE"

that was introduced at the same time as STATE'S EXHIBIT 3 "THE DVD" without objection.

(APPELLANT'S.BRIEF, supra, Id. at C. TRIAL TESTIMONY [RR, V 3, P 23, 24-25] pg. 13).

STATE'S EXHIBIT 2 "THE ENVELOPE": the purpose of Detective Ray YokEd's testcimony is to

establish "THE CHAIN OF CUSTODY" through the sealing and initialing I coding of "THE

ENVELOPE" to be sent to the CRIME LAB.

STATE'S EXHIBIT 2 "THE ENVELOPE":the purpose of Karen Shumate's testimony is to

establish the procedures in "THE CHAIN OF CUSTODY UPON RECEIPT OF 'THE ENVELOPE'" with

the ways and means upon which she checks the sealing, opening, and resealing of "THE

ENVELOPE~ n She also "TESTIFIED ABaJT THE NATURE OF THE CONTRABAND," and "THAT THE

CONTRABAND WEIGHED 294.64 g. (APPELLANT'S BRIEF, supra, Id. at C. TRIAL TESTIMONY [RR,

v 3, p 105, 109, 112] pg. 16).

DEFENSE ATTORNEY'S, was precisely, "NO OBJECTION TO STATE'S EXHIBIT 2, 'THE ENVELOPE'

AS PERTAINING TO CHAIN OF CUS'IDDY, NATURE OF THE CONTRABAND, AND WEIGHT OF CONTRABAND,"

Id., supra.

HOWEVER, in a DELUSIONAL MISCHARATERIZATION OF THE "NO OBJECTION STATED AT THIS

POINT IN THE TRIM.," the STATE INTENTIONALLY MISLEADS THE COURT OF APPEALS INTO BELIEVING

RELATOR HAS WAIVED ANY APPELLATE REVIEW OF HIS MOTION TO SUPPRESS BECAUSE OF THE STATE'S

"MISREPRESENTATION OF THE .A.FOOEMENTIONED TESTIMONY AS THE STATE'S INTRODUCTIOO OF THE

EVIDENCE, WHEN IN FACT, AS AFOREMENTIONED, THE STATE'S PRESENTATION IS 'THE CHAIN OF

aJS'IDDY PROCEDURES, THE TESTIMONY ABOUT THE NATURE OF THE CONTRABAND, AND THE CDNTRAB1\NDS

WEIGHT, ALL OF WHICH DEFENSE ATIURNEY HAS NO OBJECTION. ' "

APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, NO. 06-09-00225-CR, Id. at pg. 7, THE STATE

CATEGORIZES IT THIS WAY:

"Subsequently, the State offered as State's Exhibit 2 the controlled substance, .

the subject of Robinson's objection in his motion to suppress. RR V 3, P 110, L 22-

P 112, L 8. With the benefit of Munoz's characterization of the intersection, counsel

for Robinson asserted, "No objection[,]" to the admission of State's Exhibit 2. RR V 3

P 112, L 10. The evidence was received. RR V 3, P 112, L 11. At that point Robinson

waived any complaint about the admissibility of the controlled substance."

STATE'S EXHIBIT 2 AT THIS POINT "IS TilE ENVEWPE BEING ADMITTED, CHAIN OF CUS'IOOY."

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II

REVELANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[MISCHARACTERIZATION OF INTERSECTION DEFDUTION]

DETECTIVE CESAR MUNOZ and OFFICER SIMON RAY PORTER take an oath upon entering the

MOUNT PLEASANT POLICE DEPARTMENT to uphold the laws and ordinances of MOUNT PLEASANT,

TEXAS as well as the STATE OF TEXAS. Therefore, if any person is in violation of the

laws and/or ordinances of MOUNT PLEASANT and/or THE STATE OF TEXAS these officer's

have a duty and obligation to uphold said laws and/or ordinances. It would thereby, be

an unlawful act for the DETECTIVE and/or OFFICER'S to ARREST SOMEONE IN VIOLATION OF

SAID LAWS AND/OR ORDINANCES.

HOWEVER, THIS IS PRECISELY WHAT HAS HAPPENED IN THIS CASE THROUGH THE MISCHARACTER-

IZATION OF THE TURN WHERE NINTH STREET "ENDS TURNING IN'ID" MARGARET DRIVE AND "BEJING

AN INTERSECI'ION" in direct violation to, "CITY CODES OF MOUNT PLEASANT, TEXAS CODE OF

ORDINANCES, SECTIONS 70.01 AND 71.030 (APPENDIX, TAB A., Id.; attached hereto.),

THEREBY, THE EVIDENCE OBTAINED AS A RESULT OF. THE ILLEGAL DETENTION IS TAINTED BY THE

UNLAWFUL POLICE ACTIONS AND IS TRADITIONALLY BARRED AS "FRUITS OF THE POISONOUS 'l'REE."

SEE, SEGURA v UNITED STATES, 468 U~S. 796, 804 (1984); WONG SUN v UNITED STATES, 371

I

u.s. 471 (1963). The DETENTION was ILLEGAL, and there is a clear casual connection

between the detention and the discovery of the drugs. The State h?s not alleged that

the discovery of the drugs or RELATOR'S subsequent confession was sufficiently attenuated

from the illegal detention to purge the taint of the illegal detention. BROWN v ILLINIOS,

422 U.S. 590 (1975); BELL v STATE, 724 SW 3d 780 ( TEX CRIM APP 1986).

First, for clarity, the characterization of NINTH STREET "ENDING AND TURNING INTO"

MARGARET DRIVE and ''BEING AN INTERSECTION" looking like a "Y" or even a "U" is a

complete and utterly misconceived characterization of the "STREETS."

The "STREETS" are better characterized as a person standing in a ,;BOOT." (See,

NINTH STREET / MARGARET DRIVE / MUNOZ POSITION, DIAGRAM ATTACHED; see also, CITY MAP,

introduced by DEFENSE ATTORNEY, :REPORTER 1 S RECORD, VOLUME 5, EXHIBIT DX - 1) •

The MENTAL PICTURE is to illustrate the "CURVE / MERGE" of NINTH STREET'S "END INTO"

MARGARET STREET'S "BEGINNING." SPECIFICALLY, as with a "BOOT" starting NINTH STREET at

YOUR TOES coming across the top of your foot to the ankle, there being the end of NINTH

STREET, curving up your leg, there being the beginning of MARGARET DRIVE, and this

continues to your crotch, as MARGARET DRIVE. -of course, at your ankle you could turn,

thereby, going into the heal of the "BOOT," or a DEAD END PORTION OF MARGARET DRIVE.

/()

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[MISCHARACTERIZATION OF INTERSECTION DEFINITION]

Second, keeping the MENTAL PICTURE IN MIND, NINTH STREET and MARGARET DRIVE are a

two way street, two lanes, one lane going one direction, the other lane going the

opposite direction. Clearly, with RELATOR coming down NINTH STREET, from the "TOE OF

THE BOOT ACROSS THE TOP OF THE FOOT TOWARD THE ANKLE," in the single lane that.as you

make ?'THE CURVE TURNING," as does the ankle heading up the leg toward the crotch, "INTO

MARGARET DRIVE WHERE THERE IS 'NO INTENTION TO TURN THE VEHICLE FROM THE DIRECT COURSE

OF THE STREET, CHANGE LANES, START FROM A PARKED POSITION (TEX. TRANSP. CODE(S) §§

545.104(a), 545.106; MAHAFFEY v STATE, 316 SW 3d 633, 639 (TEX CRIM APP 2010)), NOR,

IS THERE ANY OTHER TRAFFIC BEING AFFECTED BY SUCH MOVEMENT, OR CONFLICT WITH ANY OTHER

VEHICLES TRAVELING UPON DIFFERENT STREETS JOINING AT ANY OTHER ANGLE (CITY OF MOUNT

PLEASANT, TEXAS, CODE OF ORDINANCES §§ 70.01, at "INTERSECTION;" 71.030, at "STOPPING

AND TURNING SIGNALS;" attached hereto, APPENDIX, TAB A).'"

Finally, in 'MUNOZ'S OPINION" a traffic infraction had occurred when RELATOR/

traveling from NINTH STREET to MARGARET DRIVE, "CONTINUED TO THE RIGHT WITHOUT TURNING

HIS TURN SIGNAL ON[,]" WHICH THE RELATOR HAD "A DUTY" TO DO AT THE "INTERSECTION."

EVEN THOUGH, "MUNOZ ACKNCl'H.EDGED" THAT THERE ARE "NO TRAFFIC SIGNALS OR SIGNS AT 'THIS

INTERSECTION; '" however, MUNOZ did not waver from his position that, "ALTHOUGH THE Fta'J

OF TR.AFFIC AT THIS JUNCTURE 'COULD BE CHARACTERIZED AS SIMPLY FOLI.a'JING' THE ROADWAY

AROUND ONTO MARGARET DRIVE I TO I TURN I OR I CONTINUE I ONTO MARGARET DRIVE FRcx-1 NINTH

STREET WITHOUT A SIGNAL 'IS A VIOLATION OF THE LAW.'" (COURT OF CRIMINAL APPEALS/ Slip.

'

Op., PD-0238-11; see also, CITY OF MOUNT PLEASANT, TEXAS, CODE OF ORDINANCES§§ 70.01/

at INTERSECTION; and 71.030, at STOPPING and TURNI~G SIGNALS, APPENDIX TAB A). MUNOZ,

AS AN OFFICER OF THE MOUNT PLEASANT, TEXAS1 POLICE DEPARTMENT, "WAS OF THE OPINION

'mAT A TRAFFIC INFRACTION HAD OCCURRED IT WAS HIS DUTY AND/OR OBLIGATION TO ESTABLISH

THE ENFORCEMENT OF ANY VIOLATION, EITHER ·BY THE IsSuANCE OF A CITATION AND/OR TRAFFIC

TICKET, THEREBY, ESTABLISHING THAT AN ACTUAL INFRACTION HAS OCCURRED."

Otherwise, as RELATOR'S MOTION TO SUPPRESS argued, inter-alia, thatthetraffic stop,

purportedly for the failure to signal a turn "AT AN INTERSECTION, 'WAS A PRETEXT TO

JUSTIFY AN ON<DING INVESTIGATION OF THE RELATOR."

The UNITED STATES SUPREME COURT has repeatedly held that the unsupported assertions

\

or beliefs of an officer does not satisfy the PROBABLE CAUSE REQUIREMENT. SEE, ILLINOIS

v GATES, 462 US 213/571, 76 LEd 2d 527, 103 S Ct 2317, reh den (US) 77 LEd 2d 1453,

10

l!

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[MISCHARACTERIZATION OF INTERSECTION DEFINITION]

104 S Ct 33, orig cites omitted).

The two MOUNT PLEASANT POLICE OFFICER'S, DETECTIVE CESAR MUNOZ and OFFICER SIMON

RAY PORTER, had no basis in experience for confidence in the reliability of the

anonymous caller at 6:00a.m.; one has to assume he has never before given information.

And yet they acted upon this information. The UNITED STATES SUPREME COURT has held that

identification of the suspect BY A RELIABLE INFORMANT may constitute PROBABLE CAUSE for

ARREST where the information given is sufficiently accurate to lead officers directly

to the suspect. DRAPER v UNITED STATES, 358 US 307.

It is conceded that the officers made NO ATTEMPT to obtain A WARRANT for RELATOR'S

ARREST. The simple fact is that on the sparse information by AN ANONYMOUS INFORMANT at

the officers command, NO ARREST WARRANT could have been ISSUED consistently with Rules

3 and 4 of the FEDERAL RULES OF CRIMINAL PROCEDURES, NOR, TEXAS CODE OF CRIMINAL

PROCEDURES CHAPTERS 15 and 18. GIORDENELLO v UNITED STATES, 357 US 480, 486.

The UNITED STATES SUPREME COURT noted in GIORDENELLO that Rules 3 and 4, just as

TEXAS CODE OF CRIMINAL PROCEDURES CHAPTERS 15 and 18, provide that an ARREST WARRANT

SHALL ISSUE ONLY upon a SWORN COMPLAINT setting forth "the essential facts constituting

the offense charged," and showing "that there:IS PROBABLE CAUSE TO BELIEVE that an

offense has been commited and THAT THE DEFENDANT HAS ~ITTED IT ••.• "THE FOURTH

AMENDMENT, from which the requirements of the RULES I CHAPTERS derive, provide that ••.

no WARRANT SHALL ISSUE, but upon PROBABLE CAUSE, supported by Oath or Affirmation, and

PARTICULARLY DESCRIBING ... the persons or things to be seized. Id.

The ARREST WARRANT PROCEDURE serves to insure that the deliberate, impartial

judgement OF A JUDICIAL OFFICER WILL BE INTERPOSED between the citizen and the police,

TO ASSESS THE WEIGHT AND CREDIBlLlT¥ OF 'tHE INFORMATION WHICH THE CQIIIPLAINING OFFICER

ADDUCES AS PROBABLE CAUSE. Cf. JONES v UNITED STATES, 362 US 257, 270. TO HOLD THAT AN

OFFICER MAY ACT IN HIS ~, UNCHECKED DISCRETION UPON INFORMATION TOO VAGUE AND:'FROM'.. TOO

UNTESTED A SOURCE TO PERMIT A JUDICIAL OFFICER TO ACCEPT IT AS PROBABLE CAUSE F8R AN

ARREST WARRANT WOULD SUBVERT THIS FUNDAMENTAL POLICY. Id.

A"contrary holding here would mean that a vague suspicion could be TRANSFORMED INID

PROBABLE CAUSE FOR ARREST BY REASON OF AMBIGUOUS CONDUCT WHICH THE ARRESTING OFFICERS

themselves have prevoked. Cf. HENRY v UNITED STATES, 361 US 98. That result would have

11

12

II

RELEVANT FACTS REVISITED

, CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

:1

[MISCI-lARACTERIZATION OF INTERSECTION DEPINITION]

the same essential vice as a proposition the UNITED STATES SUPREME COURT has consistently

REJECTED --- TEIAT A SEARCH UNLAWFUL AT ITS INCEPTION MAY BE VALID.l\'IED BY WHAT IT 1URNS

UP. BYARS v UNITED STATES, 273 US 28; UNITED STATES v Di Re, 322 US 581, 595.

In order to make effective the fundamental constitut.io.nal quarantees of sanctity

of the home and inviolability of the person, BOYD v UNITED STATES, 116 US 616, the

UNITED ,STATES SUPREME COURT held nearly a century ago that evidence seized during an

unlawful search could not constitute proof against the victim of the search. WEEKS v

UNITED STATES, 232 US 383. The EXCLUSIONARY PROHIBITION extends as well to the indirect

as the direct products of such invasions. SILVERTHORNE LUMBER CO. v UNITED STATES, 251

US 385. MR. JUSTICE HOLMES, speaking for the COURT in that case,. in holding that the

government might not make use of information obtained during an unlawful search to

subpeona from the victims the very documents illegally viewed, expressed succinctly the

policy of the BROAD EXCLUSIONARY RULE:

The essence of a provision forbidding the acquisition of evidence in a certain way

is that not merely evidence so acquired shall not be used before the COURT, but

that it shall not be used at all. Of course, this does not mean that the facts thus

obtained become sacred ·and inaccessible. If knowledge of them is gained from an

independent source, they may be proved like any others, but the knowledge gained

by the GOVERNMENT'S OWN WRONG CANN01' BE USED by it in the way proposed. 251 US at

392.

The EXCLUSIONARY RULE has traditionally barred from trial physical, tangible

materials obtained either during or as a direct result of an unlawful invasion. It

follows from the UNITED STATES SUPREME COURT holding in SILVERMAN v UNITED STATES, 365

US 505, that the FOURTH AMENDMENT ma·y protect against the overhearin"g of verbal

statements as well as against the more traditional seizure of "PAPERS AND EFFECTS."

Similarly, testimony as to matters observed during an unlawful invasion has been excluded

1n orde to enforce the basic constitutional policies. MC GINNIS v UNITED STATES, 227 F

2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and/or

unauthorized arrest as the officers' action in the present case is no less the 11

fruit"

of official illegality than the more common tangible fruits bf the unwarranted TRAFFIC

12

1.:5

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[MISCHARACTERIZATION OF INTERSECTION DEFINITION]

STOP. See KAMISAR, ILLEGAL SEARCHES OR SEIZURES AND CONTEMPORANEOUS INCRIMINATING

STATEMENTS: A Dialogue on a Neglected Area of Criminal Procedure, 1961 u. of Ill. Law

Forum 78, 84 - 96. But compare MARGUIRE, Evidence of Guilt (1959) 187 190. NOR DO

the policies underlying the EXCLUSIONARY RULE INVITE ANY LOGICAL DISTINCTION BETWEEN

PHYSICAL AND VERBAL EVIDENCE. Either in terms of deterring lawless conduct by federal

(arid/or MOUNT PLEASANT, TEXAS) officers, REA v UNITED STATES, 350 US 214, or of closing

the doors of the (DISTRICT and/or) federal courts to any evidence unconstitutionally

obtained, ELKINS v UNITED STATES, 364 US 206, the danger in relaxing the EXCLUSIONARY

RULES would seem too great to warrant introducing such a distinction.

For reasons stated herein the WRONGFUL MISCHARACTERIZATION OF INTERSECTION DEFINITION

by the COURT OF APPEALS in this case has allowed the ignorance of MOUNT PLEASANT'S own

CITY CODE Of ORDINANCES, PRECISELY, GENERAL PROVISIONS, § 70.01 DEFINITIONS at

INTERSECTION and§ 71.030 STOPPING AND TURNING at (A) General (1), and by DEFINITION,

RELATOR WAS NOT IN VIOLATION OF SAID CITY CODES, THEREFORE, THE ARREST IS UNI.AWFOI..

Id. at APPENDIX, TAB A.

[THE ARREST / DETAINMENT AT GUNPOINT]

RELATOR, at gunpoint, had been handcuffed and questionably detained, to be shortly

afterwards arrested by an assumed probable cause of a plain view "hallowed out cigar

and marijuana residue," none of which HAS EVER BEEN PRODUCED. Under suchcircumstances,

it is unreasonable to infer that RELATOR'S RESPONSES were sufficiently an act of free

will to purge the primary taint of the UNLAWFUL TRAFFIC VIOLATION ARREST.

SEE, LORD DEVLIN'S comments:

It is probable that, even today, when there is less ignorance about these matters

than formerly, there is still a general belief that you must answer all questions

put to you by a policeman, or at least that it will be the worse for you if you do

not.

DEVLIN, The Crimi~al Prosecution in England (1958) 32.

Even in the absence of such oppressive circumstances, and where an EXCLUSIONARY

RULE RESTS principally on NONCONSTITUTIONAL'GROUNDS, THE UNITED STATES SUPREME COURT

has sometimes refused to differentiate between voluntary and involuntary declarations.

13

/f

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED')

[THE ARREST / DETAINMENT AT GUNPOINT]

See Hogan and Snee, The McNabb - Mallory Rule: Its Rises, Rationale and Rescue, 47

Geo.L~J. 1, 26- 27 (1958). For illustrative situations where a voluntary act of

the accused has been held insufficient to cure the otherwise unlawful acquisition

of evidence, SEE BYNUM v UNITED STATES, 262 F2d 465 (holding inadmissable finger·~

prints made by defendant after unlawful arrest); UNITED STATES v WATSON, 189 F.SUPP.

766 (excluding narcotics voluntarily surrendered by accused in the course of an

unauthorized search). The Ninth Circuit Court of Appeals has rec;:ognized in an

analogous context, that "all declarations and statements under compulsion of the

things so seized, are affected by the vice of primary illegality .••.• "

TAKAHASHI v UNITED STATES, 143 F2d 118, 122.

The prosecutor, and through the testimony of DETECTIVE CESAR MUNOZ, candidly told

the trial court that "On August 25, 2008, after receiving AN ANONYMOUS TIP that

ROBINSON was coming home from Dallas with a large amount of drugs, DETECTIVE CESAR

MUNOZ set up surveillance near TIMOTHY ROBINSON'S home." RR V 2, P 14, L 20- P 15, L

22; V 2, P 17, L 12- 16; V 3, L 25 - P 32, L 5. Hence, this was not to be a case

envisioned by the COURT'S where the EXCLUSIONARY RULE has no application because the

Government learned of the evidence "FR(]WI AN ~US INDEPENDANT SJURCE," SILVERTHORNE

LUMBER CO. v UNITED STATES, 251 US 385, 392; nor is this a case in which the connection

between the lawless conduct of the police and the discovery ofthechallenged evidence

has "become so attentuated as to dissopate the taint." NARDONE v UNITED STATES, 308 US

338, 341. The COURT'S,need not hold that all evidence is "FRUIT OF THE POISONOUS TREE"

simply because it would not have come to light but for the illegal actions of the police.

Rather, the more apt question in such·acase is.whether, granting establishment of the

primary illegality, the evidence ·to which instant objection is,made has been come at by

EXPLOITATION OF THAT ILLEGALITY or instead by means sufficiently distinguishable to be

purged of the primary taint. MAGUIRE, EVIDENCE OF GUILT 221 (1959).

RELATOR thinks it is clear that the DRUGS were "COME AT BY THE EXPLOITATION OF THE

TRAFFIC VIOLATION ILLEGALITY, NOT IN VIOLATION OF CITY CODES, NO EVIDENCE PRODUCED

SUPPORTING PROBABLE CAUSE, NO TRAFFIC TICKET / CITATION TO SUPPORT TRAFFIC VIOLATION

BELIEF OF OFFICER, NO CORROBORATION OF ANONYMOUS INFORMANT AND/OR CREDIBILITY, INTER -

ALlAr and hence flrat they were not to be used against RELATOR.

14

/.5

II

RELEVANT FACTS REVISITED

. CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[THE ARREST / DETAINMENT AT GUNPOINT]

'· i

It is a: settled principle of the admtnis.tJZation of criminal justice in the federal

courts that a conviction must rest upon firmer ground than the uncorroborated admission

or confession of the accused.

Moreover, the UNITED STATES SUPREME COURT held in OPPER v UNITED STATES, 348 US 84,

92, that even where exculpatory statements are voluntary and thus clearly admissible,

fhey require at least the degree of corroboration required of incriminating statements.

The UNITED STATES SUPREME COURT observed in SMITH v UNITED STATES, 348 US 147, 153,

that the requirement of corroboration is rooted 1n a long history of judicial experience

with confessions and in the realization that SOUND LAW ENFORCEMENT REQUIRES POLICE

INVESTIGATION WHICH EXTEND BEYOND THE WORDS OF THE ACCUSED.

Again, in OPPER v UNITED STATES, supra, Id. at 89 - 90, the COURT elaborated the

reasons for the requirement:

In our country, the doubt persists that the zeal of the agencies of prosecution to

protecLthe peace, the self - interest of the accomplice, the maliciousness of an

enemy or the aberration or weakness of the accused under the strain of suspicion

may tinge or warp the facts of the confession. Admissions, retold at a trial, are

much like hearsay·j that is statements not made at the pending trial. They had

neither the compulsion of the oath nor the test of cross - examination.

In SMITH v UNITED STATES, supra, the UNITED STATES SUPREME COURT held it is

true, that although "corroboration is necessary for all elements of the offense

established by admissions alone," extrem;;ic proof was sufficient which "merely

fortifies the truth of the confession, without independently establishing the crime

charged ..• " 348 US at 156.

Where a crime involves no tangible corpus delicti, the UNITED STATES SUPREME

COURT has said that "the corroborative evidence must implicate the accused in order

to show that a crime has been committed." 348 US at 154. Id.

Finally, the UNITED STATES SUPREME COURT has said that one uncorroborated

admission by the accused does not, standing alone, corroborate an unverified

confession. UNITED STATES v CALDERON, 348 US 160, 165. Id.

While probable cause must be based on more than mere suspicion, HENRY v UNITED

STATES, 361 US 98, 104 (1959), it does not require proof sufficient to establish guilt.

15

16

II

RELEVANT FACTS REVISITED

CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT

(CONTINUED)

[THE ARREST / DETAINMENT AT GUNPOINT]

DRAPER v UNITED STATES, 358 US 307, 312 (1959). The sole requirement heretofore has

been that the knowledge in the hands of the officers at the time of the arrest must

support a "man of reasonable caution in the belief" that the subject had committed

narcotic offenses (see RELATORS CASE). CARROLL v UNITED STATES, 267 US 132, 162 (1925).

The decision is faced initially not in the courtroom, but at th.e scene of arrest, where

the totality of circumstances facing the officer is weighed against his split - second

decision to make arrest.

In WONG SUN v UNITED STATES, 371 US 471, 497-98; B3 S Ct 407, 9 LEd 2d 441 (1963),

(As in RELATORS CASE) , MR. ,JUSTICE DOUGLAS, concurred stating:

While I join the Court's opinion, I do so because nothing the Court holds is

inconsistent with my belief that there having been time to get a warrant, probable

cause alone could not have justified the arrest of petitioner (RELATOR) Toy

(ROBINSON) without a warrant.

I adhere to the views I expressed in JONES v UNITED STATES, 362 US 257, 273. What

I said in the JONES case had been earlier stated by MR. JUSTICE JACKSON, writing

for the Court in JOHNSON v UNITED STATES, 333 US 10 (another narcotics case):

The point of the FOURTH AMENDMENT, which often

I

is not grasped by zealous officers,

is not that it denies law enforcement the support of usual inferences which

reasonable men draw from evidence. Its protection consist in.requiring that those

inferences be drawn by a nuetral and detached magistrate instead of being judged

by the officer engaged in the often competitive enterprise of ferreting out crime.

I

Any assumption that evidence sufficient to support a magistrate's disinterested

determination to issue a search warrant will justify the officers 1n making a

search without a warrant would reduce the AMENDMENT to a nullity and leave people's

homes (cars, effects, inter alia) only in the discretion of police officers. Pp.

13 - 14. And see CHAPMAN v UNITED STATES, 365 US 610, 615 - 616.

The Court finds it unnecessary to reach that constitutional question. I mention it

only to reiterate that the [83 S ct 423] JOHNSON case represents the law, and is in no

way eroded by what we fail to decide today.

I

Clearly RELATOR'S case should be given this same standard of consideration.

16

17

II

RELEVANT FACTS REVISITED

*******************************

RELATOR does not, nor has he ever, had access to the record in this case. Therefore,

the "RELEVANT FACTS REVISITED" are, from personal recollection, and/or paraphrased from

the RENDITIONS of the COURT OF CRIMINAL APPEALS, SIXTH COURT OF APPEALS, APPELLEE'S

SUPPLEMENTAL BRIEF ON REMAND, APPELLEE'S PETITION FOR DISCRETIONARY REVIEW, APPELLEE'S

ORIGINAL BRIEF ON APPEAL, and APPELLANT'S (RELATOR'S) ORIGINAL BR'IEF ON APPEAL to the

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS.

*******************************

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to suppress:

The record reveals DETECTIVE CESAR MUNOZ, and other STATE'S witnesses, expressed

what amounts to nothing more than an anonymous phone call that RELATOR was coming into

town with a large amount of drugs. Instead of going to a MAGISTRATE, as that would

require PROBABLE CAUSE, TO OBTAIN AN ARREST WARRANT (TEX CODE CRIM PROC CHAPTER 15) or

A SEARCH WARRANT (TEX CODE CRIM PROC CHAPTER 18), MUNOZ decides he will call a fellow

officer (SIMON RAY PORTER) and they'll make an ARREST WITHOUT WARRANT (TEX CODE CRIM

PROC CHAPTER 14) as they position themselves to await RELATOR'S arrival.

Coincidently, MUNOZ assumedly observes RELATOR drive down NINTH STREET that turns

into MARGARET DRIVE, similar to any curve in a road, merely following the direct course

(

of the road, without using a turn signal. This is MUNOZ'S PRETEXT TO STOP AND ARRE$T.

However, this assumed offense is neither one classified as a FELONY, nor AGAINST THE

PUBLIC.PEACE (TEX CODE CRIM PROC ART. 14.01 (a); see also, ART. 14.03 (a)(l-S),(b-g)).

Therefore, MUNOZ needs PROBABLE CAUSE for the initial SEARCH, which he says he smells

marijuana; likely story with the exception, of course, he did not recover any marijuana,

take any photographs of marijuana, conduct any testing on suspected marijuana, have any

of the officers on the scene witness and/or testify to the smell or PLAIN VIEW discovery

of said marijuana, nor did he take any steps that one would expect the trained narcotics

officer to take, questioning NOT ONLY THE SEARCH BUT THE ARREST, as NO PROBABLE CAUSE

FOR EITHER PRODUCED.

Finally, MUNOZ never cited nor ticketed RELATOR for a traffic violation·as it was

NO MORE THAN A MERE PRETEXT TO SEARCH AND ARREST WITHOffi' WARRANTS AND/OR PROBABLE. CAUSE.

17

III

76th JUDICIAL DISTRICT COURT OF TITUS OJUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to suppress: (continued)

The STANDARD FDR DETERMINING WHETHER PROBABLE CAUSE EXIST 'ID ARRES"ll' WI·'l'BOm'·---~

are at least as stringent as the standards required when a MAGISTRATE determines

PROBABLE CAUSE before ISSUING A WARRANT. WILSON v STATE, 621 SW 2d 799 (TEX CRIM APP

1981). In order to ESTABLiSH PROBABLE CAUSE TO ARREST the officer MOST demonstrate that

he had enough information to warrant a man of reasonable caution in believing that a

FELONY HAD !BEEN COOMri".l'JEED. WILSON, supra.

MERE SUSPICION that a person arrested committed a crime 1s not sufficient to

justify a WARRANTLESS ARREST. GILL v STATE, 134 Tx. Cr. R.363, 115 SW .2d 923 (App 1938).

When an ARREST IS MADE ILLEGALLY, evidence discovered pursuant to THAT ARREST IS

NOT ADMISSIBLE AT TRIAL. WILSON, supra at 805.

AN ARREST FOR ONE CRIME IS NOT to be used as A PRETEXT TO SEARCH FOR EVIDENCE OF

ANOTHER. BELL v STATE, 724 SW 2d 780 (TEX CRIM APP).

\1\Then .M! ARRESII" IS USED AS A PRE'l'EXT. JI:T IS AN IJL,I.Fk:AL ARREST AND EVTIJENICE DI.sa>VERED

AS A. RE.SUlL.T I()IJP' IT MAY Nair BE USED AT TR:n:M.. UNITED STATES v LEFKOWITZ, US , 52 S

-- --

Ct 420, 76 LEd 877 (1932).

T!1is present case is but a 'type and shadow of the· case PIERCE. v STATE:; 32 :SW ··2d

247 (TEX CRIM APP 2000) REVERSED AND REMANDED, EN i3ANC.'. SPEC::U:FtCALLY:· . ·. .- -

Defendant was cohv:Lcted iri' the County Cdinirial Court No. 10 I Dallas County I Marshall

Gandy, JUDGE; of DwL: She appealed. The Dallas County Court of Appeals affirmed, 1999

WL 956301. Defendant filed a PDR~ The Court of Criminal Appeals, Womack, J., held that

trial judges ruling on objection to the illegally obtained evidence was not rendered

moot by guilty verdict from jury that was instructed to disregard illegally obtained

evidence, abbrogating JOHNSON, 855 SW 2d 578.

The decision of a jury that is not trained in this difficult task is simply not

reliable enough to provide DUE PROCESS OF LAW. Id. at 252.

A- defendant likewise has a right, entirely apart from guilt and innocence, not to

be convicted with illegally obtained evidence. This right is based in part on the 4th

and 14th AMENDMENTS of the UNITED STATES CONSTITUTION, See MAPP v OHIO, 376 US 643, 81

S Ct 1684, 6 LEd 2d 1081 (1961), and in part on Art. 38.23, a statute enacted by TEXAS

LEGISLATURE and GOVERNOR in 1925 and reenacted 4 times thereafter. The decision of a

Judge is necessary for a defendant to have·a fair hearing and a reliable determination

of the legality with which evidence was obtained. The jury is given a role to be "a

backup protection against erroneous judicial rulings," that have admitted evidence,

18

17'

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to suppress: (continued)

not to supplant them. Just as the task of determining the. voluntariness of a confession

without being distracted by its reliability is too difficult to be left to the jury

alone, so is the task of determining the legality of the means by which evidence was.

obtained without being distracted by its probative value. Id., at 253.

Unlike this present case, although factually was required under simular circumstance,

precisely; The Courts charge authorized the jury to convict if it found that:

Deputy Miller (or DETEC'J;'IVE MUNOZ) , ''whether acting as an officer or as a person who

was not an officer· ( 'an other person,' in the terms of the statute), had placed the

defendant under arrest without a warrant for an offense that was a felony OR AGAINST

THE PUBLIC PEACE." I d.

"NO OFFENSE COMMITI'ID IN MILLER'S (or DETEC'l'IVE MUNOZ 'S) PRESENSE OR VIEW WAS A

FEI.ONY," and "THE JURY WERE INSTRUCTED "..'HAT TRAFFIC VIOLATIONS WERE NOT OFFENSES AGAINST

THE PUBLIC PEACE, 9J TOE OOI.Y OFFENSE FOR WHICH MILLm (or MUNOZ WAS USE OF 'NO TORN

SIGNAL') LEX::M.LY aJULD HAVE ARRESTED 'nJE APPLICANT WAS DRIVING WHILE IN"'IXICATED (MUNOZ

COULD NOT HAVE LEGALLY ARRESTED RElATOR FOR NOT. USING A TURN SIGNAL, TRAFFIC VIOLATION,

IS NCY.r A FELONY NOR AGAINST THE PUBLIC PEACE, THEREFORE ILLEGAl. / UNJLAWFUI. ARJRES.r). Id.

0

BEFORE HE S".roPPID HER (HIM) 1 MILLER (MUNOZ HAD MERE SUSPICION FROO UNKNOWN .M<IONYK:>US

UNRELIABLE INFORMNrr 1 ASSUMEDLY) HAD "NO EVIDENCE' "'mAT APPLICANT WAS Dn'OXI~Tm- Id.

"If, as the Court of Appeals said, '[b]y its verdict of guilt, thejury found MILLER

(or any other person) LEGALLY STOPPED APPLICANT,' and under the Courts instruction the

STOP COULD HAVE ONLY BEEN LEGAL IF IT WERE FOR DWI (OFFENSE OF FELONY OR AGAINST THE

PUBLIC PEACE), the jury's FINDING MUST HAVE BEEN BASED ON EVIDENCE OF IN'IDXICATION that

MILLER OBTAINED AFlr'ER HE MADE 'HIE STOP. SUCH EVIDENCE axrr.D r«Y..I" JUSTIFY THE S'l'OP." Id.

As in PIERCE, supra, "there was NO PROOF that DEPUTY MILLER (or DETECTIVE MUNOZ)

witnessed a violation of the TRAFFIC LAWS," nor was there PROOF PRESENTED FOR ASSUMED

PROBABLE CAUSE TO SEARCH OR ARREST WITHOUT WARRANT (TEX CODE CRH1 PROC ART 14.01), and

RELATOR AT VERY MINIMAL WAS ENTITLED TO A SIMILAR CHARGE AND/OR REVERSAL AND REMAND.

THE STOP, hereto in present case, HAS NOT BEEN JUSTIFIED, AS NO PROOF PRESENTED FOR:

TRAFFIC VIOLATION (i.e. TRAFFIC TICKET, CITATION, VIDEO OF VIOLATION, NOTHING); or

PROBABLE CAUSEand had there been .PROBABLE CAUSE, tDT JUST UNSUPPORTED ASSERTIONS OR

BELIEFS, the OFFICER'S MUNOZ AND PORTER CLEARLY WOULD HAVE IMMEDIATELY WENT BEFORE A

MAGISTRATE TO LAWFULLY OBTAIN A WARRANT FOR ARREST AND/OR SEARCH, HOWEVER, IN NOT DOING

19

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to suppress: (continued)

SO STRONGLY SUGGEST THEY WERE OUT TO MAKE AN ARREST AND/OR SEARCH AND SEIZURE through

the ANONYMOUS UNKNOWN UNRELIABLE INFORMANT BY "ANY MEANS NECESSARY WITBOUI' SAID WARRANTS,

'lD ARREST, SEARCH, AND/OR SEIZE, THROUGH UNCORROBORATED HEARSAY MADE BY AN ASSUMED

ANONYIDUS INFORMANT. n

Furthermore, the UNITED STATES SUPREME COURT, in ILLINOIS v GATES, 462 US 213, 76

LEd 2d 527, 103 S Ct 2317, reh. den. (US) 77 LEd 2d 1453, 104 S Ct 103, consistently

recognized the value for corroboration of detail OF AN INFORMANT'S TIP BY INDEPENDENT

POLICE WORK. Id., at 530.

In JONES v UNITED STATES, 362 US, at 269, 4 L Ed 2d 679, 80 S Ct 725, 78 ALR 2d 233,

they held "that an affidavit relying on hearsay 'is not to be deemed insufficient on

that score, SO LONG AS a substantial basis for crediting the hearsay is presented.'"

They "went on to say that EVEN Ml\IUNG A WARRANTLESS ARREST AN OFFICER 'MAY RELY UPON

INFORMATION RECEIVED THROUGH AN INFORMANT, RATHER THAN UPON DIRECT OBSERVATIONS, SO

LONG AS 'HIE ~ANT 1 S STATEMENT IS REASONABLY CORROBORATED BY OTHER MATI'ERS WI'l'HIN

OFFICERS KtUWLEDGE,'n Ibid, Likewise,. they "recognized the probative value of corrobor-

ative efforts of police officials in AGUILAR- the source of the '2 - pronge test' -

by observing that IF THE POLICE HAD MADE SOME EFFORT TO camQBORATE 'THE :INFORMANTS

REPORT AT ISSUE, ' AN ENTIRELY DIFFERENT CASE' WOULD HAVE BEEN PRESENTED. AGUILAR, 378

US, at 109. n. 1, 12 L Ed 2d 723, 84 S Ct 1509." GATES, SUPRA, at 550 -551, Id.

"Yet, such tips, particularly when supplemented by INDEPENDENT POLICE INVESTIGATION,

frequently contribute to the solution of otherwise 'perfect crimes.' While a conscientious

assessment of the BASJCS FCR CREDITING SUCH TIPS JCS ~IRED BY THE FOURTII ~, !

STANDARD '!HAT LEAVES VIRTUALLY 00 PLACE FOR ANONYMOUS CITIZEN INF'ORMH'WTS IS NOT." GATES,

supra, at 548.

The UNITED STATES SUPREME COURT has repeatedly held THAT UNSUPPORTED ASSERTIONS OR

BELIEF OF AN OFFICER DJES NOT SATISFY THE PROBABLE CAUSE REQUIREMENT. GATES; supra, at

570- 571 (citings omitted).

They further state, In order to emphasize the magistrate's role as an .independent

arbiter of PROBABLE CAUSE and to ENSURE THAT SEARCHES AND SEIZURES ARE NOT EFFECTED ON

LESS THAN PROBABLE CAUSE, THE COURT HAS INSISTED THAT POLICE OFFICERS PROVIDE

."'JAGISTRATES WITH THE UNDERLYING FACTS AND CIRCUMSTANCES THAT SUPPORT THE OFFICERS

CONCLUSIONS. In NATHANSON v UNITED STATES, 290 US 41, 78 LEd 159, 54 S Ct 11 (1933),

20

2.J

III

·76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to supress: (continued)

The COURT held·INVALID THE SEARCH WARRANT that was BASED ON A CUSTOMS'AGENT'S "MERE

AFFIRMATION OF SUSPICION' AND BELIEF WITHOUT ANY STATEMENT OF ADEQUATE SUPPORTING FACTS,"

Id., at 46, 78 L Ed 159, 54 S Ct ll. THE COURT STATED: [U]NDER THE FOUR'IB A!MIENDMENT,

AN OFFICER MAY NOT PROPERLY ISSUE A WARRANT TO SEARCH A PRIVATE DWELLING UNLESS HE CAN

FIND PROBABLE CAUSE THEREFOR FROM FACTS ~oR CIRCIJMSTANCES PRESENTED TO HIM UNDER OATH

OR AFFIRMATION'. MERE AFFIRMN\TION OF BELIEF OR SUSPICION' IS NOT ENOUGH." GATES, supra,

Id., at 572- 573.

"In GIORDENELLO v UNITED STATES, 357 US 480, 486, 2 L Ed 2d 1503, 78 S Ct 1245

(1958), the Court reviewed an ARREST WARRANT issued under the FEDERAL RULE CRIMINAL

PROCEDURE based on A COMPLAINT SWORN TO BY A FEDERAL BUREAU OF NARCOTICS AGENT. Id., at

481, 2 L Ed 2d 1503, 78 S Ct 1245. BASED ON THE AGENT'S TESTIMONY AT THE SUPPRESSION

HEARING, THE COURT NOTED THAT 'UNTIL THE WARRANT WAS ISSUED ••• [THE AGENT'S] SUSPICION

OF PETITIONERS GUILT DERIVED ENTIRELY FROM INFORMATION GIVEN HIM BY LAW ENFORCEMENT

OFFICERS AND OTHER PERSONS IN HOUSTON, NONE OF WHOM EITHER APPEARED BEFORE THE

COMMISSIONER OR SUBMITTED AFFIDAVITS.' Id., at 485, 2 LEd 1503, 78 S Ct 1245. The

COURT FOUND IT UNNECESSARY TO DECIDE WHETHER A WARRANT. COULD BE BASED SOLEY ON' HEARSAY

INFORMATION, FOR THE COMPLAINT WAS 'DEFECTIVE IN NOT PROVIDING A SUFFICIENT BASIS UPON

WHICH A FINDING OF PROBABLE CAUSE COULD BE MADE.' Ibid. IN PARTICULAR, THE COMPLAINT

CONTAINED ID AFFIRMITIVE AI.LEk:ATION' THAT THE AGENT SPOKE WITH PERSONAL KNOWLEDGE NOR

DID IT INDICATE ANY SOURCES FOR THE AGENT'S a>NCLUSION. Id. at 486, 2 L Ed 2d 1503, 78

S Ct 1245. The COURT EXPRESSLY REJECTED THE ARGUMENT that these deficiencies COULD BE

CURED BY 'the COMMISSIONER'S RELIANCE UPON PRESUMPTION THAT THE COMPLAINT WAS MADE ON

PERSONAL KIDWLEDGE OF THE COMPLAINING OFFICER.' Ibid. GATES, supra, Id.

"As noted, the COURT DID NOT DECIDE THE HEARSAY QUESTION LURKING IN GIORDENELLO.

The USE OF HEARSAY TO SUPPORT THE ISSUANCE OF A WARRANT PRESENTS SPECIAL PROBLEMS

BECAUSE INFORMANTS, UNLIKE POLICE OFFICERS, ARE NOT REGARDED AS PRESUMPTIVELY RELIABLE

OR HONEST. Moreover, the basis for an informants conclusions is not always clear from

an affidavit that merely reports those conclusions. If the OONCLUSORY ALLEGATIONS OF A

POLICE OFFICER ARE INSUFFICIE!NIT TO SUPPORT A FINDING OF PROBABLE CAUSE, SUREJL,Y THE

CONCLUSORY ALLEk:ATIONS OF AN DDFORMANT SHOULD A :FORTIORI BE INSUFFICIENT. GATES, Id.

21

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

A. The failure to grant the defense motion to suppress: (conclusion)

The aforementioned in mind, the RELATOR CONCLUDES:

These are the LEGAL STANDARDS by which a COURT OF. LAW is to abide in determining

LAWFUL ARREST, SEARCHES, AND SEIZURES for admissibility of evidence, anything less is

0

AN ABUSE OF DISCRE'!'ION BY THE ffiURT, WHICB PRECISELY IS WHAT THE 76th .JUDICIAL DISTRICT

COURT HAS BEEN ALWWED TO DO. II

For the reasons stated herein, and to follow, RELATOR should be ACQUITTED/ ACTUAL

INNOCENCE IMPOSED AS THE EVIDENCE DOES NOT SUPPORT THE COMMISSION OF A CRIME BY RELATOR.

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE:

A MOTION TO SUPPRESS can be RE-LITIGATED and TRIAL EVIDENCE used to review the

trial court's pre-trial ruling, RACHAL v STATE,· 917 SW 2d 799, 809 (TEX CRIM APP 1996).

When the LEGALITY OF THE SEIZUR.E is relitigated at trial, HGVEVER, consideration of

relevant testimony is appropriate in the COURT OF APPEALS REVIEW. Id. In this case,

the issue was relitigated at trial and RELATOR REQUESTED THE TRIAL COURT TO RECONSIDER

ITS PRIOR RULING.

In BLACK v STATE, 362 WS 3d 626 (TEX CRIM APP 2012) the issue is detailed as follows:

When APPELLATE COURTS are asked to determine whether the TRIAL COURT ERRED IN OVERRULING

a pre-trial MOTION TO SUPPRESS the general rule is that the APPELLATE COURT considers

only evidence adduced at hearing on the motion and does not resort to testimony

subsequently elicited at trial because the ruling in issue was n;)t based on the latter.

BUT where the ground of error complains of the admission of the evidence at trial, and

the issue has been consensually relitiga1;.ed by the parties ?uring tdal on the·merits,

consideration of the relevant trial testimony is appropriate. (See, APPELLANTS BRIEF,

at C. IT'R!AL TESTIMONY, pg. 13, ·"Also, the State was once again allowed to place the

alleged WRITI'EN STATEME!Nrn' of the appellant AND EVIDENCE DESPITE DEFENSE COUNSEL'S

OBJECTION (HEARSAY);~ ... (RR V3, P 23, 24-25); NOW SEE, APPELLEE'S SUPPLEMENTAL BRIEF ON

REMAND, ARGUMENT, ISSUE l, pg. 7 of 12, "Subsequently, the State offered as, STATJE:'S

EXHIBIT 2 THE mNTROLLED SUBSTANCE, the subject of Robinson's objection in his motion

to suppress." (RR V 3, P 110, L 22 - P 112, L 8); NOW APPELLANT.'S BRIEF, SUPAA, pg. 13,

0

THE ENVEWPE in which the SUSPECTED COCAINE WAS PLACED (STATE'S EXHIBIT .:t)and a DVD

(STATE'S EXHIBIT 3) were ALSO ADMITTED, without objection. Ibid. at 28-29."). CLEAR

OBJECTION TO WRITTEN STATEMENI' MID EVIDENCE SOME 87 PAGES PRIOR TO APPELLEE'S CLAIM OF

nNO OBJECTION" WHICH WAS ENTERED AT CHAIN OF ClJSTODY TES'.IrTIUNY. SJI'ATE 'S EXHIBIT 2 THE

ENVELOPE.

22

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE: (continued)

PRECISELY, (See, APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 16) STATING:

"The following witness was Detective Ray YokeL A CHAIN OF CUSTODY wrrNESS, Ibid.

at 105. (This is RR V 3, P 105)

"The next witness was Karen Shumate, A Texas Department of Public Safety Crime Lab

employee WHO TESTIFIED ABOUT THE NATURE OF THE CONTRABAND. Ibid. at 109 (This is RR V 3,

P 109). SHE TESTIFIED THAT THE CONTRABAND WEIGHED 294.64 ~-Ibid. at 112 (This is RR V

3, p 112) • II

TO THIS PRECISE TESTIK>NY DEFENSE COUNSEL HAD "NO OBJEcriON 1" AS STATED BY DEFENSE

BY WRITTEN BRIEF (See, APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 13, SPECIFYING

"O~TION TO 'WRITTEN srATEMENT AND EVIDENCE; •" located at RR v 3, P 23, 24-25).

--- --

APPELI:..ANT 'S BRIEF, WRITTEN BY APPELLATE COUNSEL CLEARLY REVFALS THE STATE'S

MISCHARACTERIZATION FOR "NO OBJECTION, n AS CHARACTERIZED IN APPELI..ANT 'S BRIEF "STATE'S

EXHIBIT 2" IS "THE ENVELOPE." (See, RR V 3, P 23, 24-25; 28-29; and, 105-112).

BLACK, supra, specifies, " ... where the ground of error 'COMPLAINS OF THE ADMISSION

OF EVIDENCE AT TRIAL, AND THE ISSUE HAS BEEN CONSENSUALLY RELITIGATED BY THE PARTIES

DURING TRIAL ON THE MERITS, CDNSJ:DERATION OF THE RELEVANT TRIAL TES'TIMONY IS APPROPRIATE.'"

IT IS CLEARLY ESTABLISHED IN BRIEFS AND OPINIONS OF THE COURT'S THERE WAS A

CONSENSUAL RELITIGATION IN THE PRESENT CASE. TRIAL COURT ABUSE OF DISCRETION ?

BLACK, supra continues, HAD THE TRIAL COURT NOT ABUSED ITS DISCRETION; The procedure

generally distills to the defendant's choice because the admissibility of an arrest,

search, confession, and the like, are not material issues on which the State bears the

burden of proof at trial - UNLESS RAISED BY THE DEFENDANT. THEREFORE, ANY ATTEMPT BY

THE STATE ID FIRST INTER.JECT EVIDENCE RELEVANT ONLY TO SUCH ISSUES MAY BE FOILED BY A

PROPER OBJECTION BY DEFENSE.(See, APPELLANT'S BRIEF, at pg 13, RR V 3, P 23, 24-25).

BUT IF SI'ATE RAISES THE ISSUE AT TRIAL EI'IHER WITHOUT OBJECTION OR WITH SUBSEXJUEN'T.

PARTICIPATION IN THE ~y BY THE DEFENSE 1 THE DEFENDANT HAS MHIDE AN ELECTION TO

RIDPEN THE EVIDENCE. "DEFENSE MADE THIS SUBSEQum.r' PARTICIPATION AND ELECTED 'ID REOPEN

THE EVIDENCE."

In determining whether a trial court's decision to deny a MOTION TO SUPPRESS is

supported by the record, the APPELLATE COURT generally considers only evidence adduced

9t the SUPPRESSION HEARING because the ruling was based on it rather than evidence

introduced later. fJO"lEVER, this GFBERAL RULE is INAPPLICABLE WHERE THE SUPPRESSION

23

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE: (continued)

ISSUE HAS BEEN CONSENSUALLY RELITIGATED BY THE PARTIES DURING TRIAL ON THE MERITS.

Where the STATE raises the issue at trial EITHER WITHOUT OBJECTION OR WITH SUBSEQUENT

PARTICIPATION in the inquiry by the defense, THE DEFENDANT HAS MADE AN ELECTION TO

REOPEN THE EVIDENCE, and CX>NSIDERATION OF THE RELEVANT TRIAL TESTJ]'>I)NY IS APPROPRIATE

IN THE APPELLATE COURT'S REVIEW. BLACK, supra.

The STATE may argue that the general rule identified in HARDESTY v STATE and RACHAL

v STATE speaks only to a limitation on what is available for APPELLATE REVIEW of a

trial court's ultimate ruling on a pre-trial SUPPRESSION MOTION, and not the trial

court's own authority to reopen the SUPPRESSION HEARING itself TO EXPAND THE RECORD.

Evidence adduced before the fact finder at trial may not be taken into account in an

APPELLATE REVIEW of the propriety of the trial court's ruling on a MOTION TO SUPPRESS,

the STATE could readily concede, absent consent of the parties. BUT that does not mean

that the trial court lacked authority to later REOPEN THE SUPPRESSION HEARING, outside

the jury's presence, to ENTERTAIN ADDITIONAL EVIDENCE RELEVANT TO A REVISITATION OF THE

CORRECTNESSOF TIS INITIAL RULING. AND IF the trial court exercises its authority (not

doing so in present case was an ABUSE OF AUTHORITY)to permit additional evidence in

the :context of A RENEWED SUPPRESSION HEARING, the REVIEWING COURT (IN THIS PRESENT CASE

SHOULDHAVE CONSIDERED) MUST CONSIDER that additional evidence in determining the

propriety of the trial court's ULTIMATE RULING on the MOTION TO SUPPRESS. Therefore,

the STATE could argue, this was the essence of the holding in MONTALVO v STATE. BLACK,

supra.

There is found no LEGISLATIVE INTENT that the STATUTORY AVAILABILITY of an

INTERLOCUTORY APPEAL should have foreclosed the RELATOR'S ATTORNEY form opting to seek

RECONSIDERATION at the trial court level on a RULING THAT THE RELATOR'S ATTORNEYREGARDED

AS MISTAKEN. HOWEVER, FAILING TO DO SO IS INEFFECTIVE ASSISTANCE. BLACK, supra.

It has been held, if anything, TEX CODE CRIM APP (TCCP, herein) Art. 36.02 should

be interpreted to BE BROAD ENOUGH to PERMIT THE TRIAL COURT within its DISCRETION TO

REOPEN A SUPPRESSION HEARING if it APPEARS NECESSARY TO THE DUE ADMINISTRATION OF

JUSTICE (AS IT WAS WITH PERJURED TESTIMONY OF DETECTIVE MUNOZ, BY INCONSISTENT STATE-

MENTS) . After all a MOTION TO SUPPRESS IS NOTHING MORE THAN A SPECIALIZED OBJECTION TO

EVIDENCE, which may be - but is not required to be - resolved, under TCCP ANN. Art.

28.01 § 1 (6) prior to trial. This applicability of TCCP ANN. Art. 36.02 should not

24

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE: (continued)

rest upon whether the trial court opts to conduct a pre-trial hearing on the MOTION TO

SUPPRESS or instead to carry the MOTION over for trial. Ohter jurisdictions have held

that the trial court has the DISCRETIONARY POWER TO RECONSIDER RULINGS ON SUPPRESSION

HEARINGS, even in the absense of a statute such as Art. 36.02. BLACK, supra.

In essence, a pre-trial MOTION TO SUPPRESS EVIDENCE is NOTHING MORE THAN A SPECIALIZED

OBJECTION to THE ADMISSABILITY OF THAT EVIDENCE. A PRE-TRIAL RULING on such A MOTION

IS INTERLOCUTORY IN NATURE. AS SUCH, IT SHOQLD BE REGARDED AS JUST AS MUCH THE SUIDECT

OF RECONSIDERATION AND REVISION AS ANY OTHER RULING ON THE ADMISSABILITY OF EVIDENCE

UNDER TEX RULES EVIDENCE (TRE) 104, which a trila court may revisit at its discretion

at any time during the course of a trial. To the extent that TCCP ANN Art. 36.02 may

be said to circumscribe a trial court's authority to reopen a hearing on a MOTION TO

SUPPRESS, it should be construed according to its terms. By this reckoning, Art. 36.02

restricts the trial court's discretion to reopen a hearing on a MOTION TO SUPPRESS ONLY

TO THE EXTENT that it PROHIBITS FURTHER EVIDENCE OF ANY KIND ONCE the parties have

concluded their arguments of the cause - that is to say the trial its self. This

conclusion is bolstered by case law from other jurisdictions that have concluded that

a trial court retains th~ authority to reopen a SUPPRESSION HEARING AND REVISIT ITS

PRE-TRIAL RULING thereon during the course of trial. BLACK, supra.

IN RELATOR'S CASE when the STATE RESTED. "The defense made a motion for instructed

verdict that was denied. Ibid. at (RR V 3, P) 115. The basis for the motion was that

the EVIDENCE MERELY ESTABLISHED THE DEFENDANT'S PRESENCE, BUT NOT OWNERSHIP OR CONTROL

OF THE CONTRABAND. Ibid. (RR V 3, P) 116; see also, APPELLANT'S BRIEF, at C. TRIAL

TESTIMONY, pg. 16.

Indeed, TRE 104 (b) clearly contemplates that the trial court MAY BE REQUIRED TO

REVISIT THE QUESTION OF ADMISSABILITY:Of CERTAIN EVIDENCE long after it has DECLARED

THE EVIDENCE AT LEAST CONTINGENTLY ADMISSABLE. The court has seen NO REASON why a trial

court SHOULD LACK THEAUTHORITY likewise to revisit a preliminary determination with

respect to THE ADMISSABILITY OF EVIDENCE UNDER RULE 104 (a), IF REQUESTED TO DO SO FOR

SUFFICIENT CAUSE BY ONE OF THE PARTIES (See IN RELATOR'S CASE, supra) -at its discretion,

of course, and subject to TCCP ANN Art 36.02 (ABUSE OF DISCRETION IN RELATOR'S CASE?).

BLACK, supra.

25

26

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE: (continued)

Case Law Holds: INTER ALIA, The trial court has discretion to revisit

INTERLOCULATORY PRE-TRIAL RULING on MOTION TO SUPPRESS. The fact that the STATE could

appeal a pre-trial order granting A MOTION TO SUPPRESS did not deprive the trial court

of authority to reopen SUPPRESSION HEARING AND CHANGE ITS RULING. The trial court has

discretion to reopen hearing on MOTION TO SUPPRESS regardless of whether THE EVIDENCE

IS NEWLY DISOOVERED OR MERELY OMITTED AT THE INITIAL PROCEEDING. BLACK, supra. ,

A trial court's decision to SUPPRESS EVIDENCE is an INTERLOCUTORY ORDER AND MAY BE

RECONSIDERED by the trial court's OWN MOTION or UPON MOTION BY THE PARTIES. A trial

court's discretionary powers are continuos and it may RECONSIDER EARLIER RULING ON

MOTION TO SUPPRESS. A MOTION TO RECONSIDER OR REOPEN PROOF at SUPPRESSION HEARING is a

matter of trial court's discretion. THE TRIAL COURT HAS BROAD DISCRETION IN DECIDING

WHETHER TO "REOPEN" HEARING ON PRE-TRIAL MOTION TO SUPPRESS. A pre--trial RULING ON

MOTION TO SUPPRESS IS INTERLOCUTORY AND TRIAL COURT HAS INHERENT POWER TO REVISE IT

ANYTIME BEFORE FINAL JUDGEMENT IN THE CASE. THE TRIAL COURT HAS BROAD DISCRETION TO

REVISIT PRE-TRIAL RULINGS ON MOTIONS '10 SUPPRESS "AND SHOULD DO SO LffiERALLY." BLACK,

supra.

The COURT OF CRIMINAL APPEALS holding that a trial court has the authority to reopen

the hearing on a MOTION TO SUPPRESS EVIDNECE even after trial has begun is easily

harmonized with HARDESTY v STATE and RACHAL v STATE. Neither HARDESTY nor RACHAL

purported to decide the trial courts authority, vel non, to reopen a SUPPRESSION HEARING

during the course of a trial; THEY MERELY SET OUT A GENERAL RULE THAT GOVERNS APPELLATE

REVIEW OF RULINGS ON PRE-'-TRIAL MOTIONS '10 SUPPRESS, WITH AN. EXCEPTION THAT BROADENS THE

PERMISSABLE SCOPE OF THAT APPELLATE REVIEW UNDER CIRCUMSTANCES IN WHICH FURTHER EVIDENCE

IS ADMITTED DURING THE COURSE OF TRIAL, AT THE WILL OF THE PARTIES, THAT PERTAINS '10

THE PROPRIETYOF THE EARLIER RULING. Neither the GENERAL RULE NOR THE EXCEPTION to it

even addresses, MUCH PRECLUDES, a tri<d court .itself from hearing additional evidence

and either revising or reiterating its initial ruling. BLACK, supra.

THE GENERAL RULE in cases in which the TRIAL COURT IS NEVER ASKED, OR IS ASKED BUT

DECLINES, TO. EXERCISE ITS DISCRETIONARY AUTHORITY TO REOPEN THE SUPPRESSIOO HEARIN;,

APPELLATE REVIEW OF ITS RULING ON THE MOTION TO SUPPRESS IS ORDINARILY LIMITED TO THAT

EVIDENCE PRESENTED AT 'rr-JE PRE-TRIAL HEARING - the evidence that was before the court

26

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of

RE-LITIGATED TRIAL EVIDENCE: (continued)

at the time of its dicision. THE EXCEPTION: If the parties consensually broach the

suppression issue again before the fact-finder at trial in gauging the propriety of the

trial court's ruling on the MOTION TO SUPPRESS. FINALLY, the COROLLARY RULE: If at any

point before the conclusion of final arguments at trial, the trial court should

exercise its discretionary authority to reopen the SUPPRESSION HEARING, THE REVIEWING

COURT SHOOLD ALSO CONSIDER WHATEVER ADDITIONAL EVIDENCE MAY ·BE SPREAD ON THE RECORD

BEARING ON THE PROPRIE'l'Y OF THE TRIAL COURT'S ULTIMATE RULING ON THE MOTION TO SUPPRESS.

BLACK, supra.

Accordingly, it is clear from the record of; the trial court; court of appeals; and,

the court of criminal appeals, the parties in RELATOR'S case CONSENSUALLY BROACHED THE

SUPPRESSION ISSUE AGAIN BEFOR.E THE FACT-FINDER AT TRIAL IN GAUGING THE PROPRIETY OF

THE TRIAL COURT'S RULING. Therefore, based on the record and the law specified herein

the trial court has clearly abused its discretion, as well as the court of appeals in

its present ruling issuing a mandate to affirm judgement of the trial court for these

same reasons and to follow.

For the reasons stated herein, .and to follow, RELATOR should be ACQUITTED, ACTUAL

INNOCENCE IMPOSED AS THE EVIDENCE DOES NOT SUPPORT THE COMMISSION OF A CRIME BY RELATOR,

NOR DID DEFENSE COUNSEL RENDER

.:·::=·

A "NO OBJECTION" TO THE "COOTROLLED SUBSTANCE," AS

MISCHARACTERIZ:ED IN APPELLE 'S SUPPLEMENTAL BRIEF ON REMAND ( pg 7 of 12, at RR V 3.' P

1101 L 22 - P 112, L 10) 1 THE "NO OBJECTION" WAS ENTERED UPON THE "STATE'S EXHIBIT 2"

THE ENVELOPE IN A "CHAIN OF CUSI'ODY" TESTIMONY BY DETECTIVE RAY YOKEL AND KAREN SHUMATE,

WHO ALSO-TESTIFIED ABOUT THE NATURE OF THE CONTRABAND AND ITS WEIGHT (.See herein at pg.

23, at B. PRECISELYLsee also APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 13, aJ!ll(],

herein at pg. \. 22, SPECIFYING srATE'S "EXHIBIT 2" WAS/IS ENTERED AS "THE ENVELOPE", AND

THE "NO OBJECTION" IS TO THE TESTIMONY OF THE "CHAIN OF CUSTODY" A DISCUSSION OF THE

PROCEDURES FOR SEALING "THE ENVELOPE" AND RECEIVING ~'THE ENVELOPE", STATE'S EXHIBIT 2).

Therefore, RELATOR DID AND HAS PRESERVED HIS FIRST POINT OF ERROR ALLEGING THE

TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL EVIDENCE OBTAINED DURING AND SUBSEQUENT

TO AN ILLEGAL TRAFFIC STOP.

WITH FURTHER REASONING TO FOLLOW.

27

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

C. Refusal to comply with TEXAS CODE CRIMINAL PROCEDURE (TCCP) Art. 38.22 in ABATED

FINDINGS OF FACT AND CONCLUSION OF LAW, and the ERROR IS NOT MOOT, NOR AS SUCH

WAS IT TO BE OVERRULED BY THE SIXTH COURT OF APPEALS:

The record reveals the trial court refused to enter a FINDINGS OF FACT AND CONCLUSION

OF LAW, nor. is RELATOR aware from the record as ABATED IN THE COURT OF APPEALS, pursuant

to Art. 38.22 TCCP, with; A. STATEMENT OF FACTS; B. ARGUMENT AND DISCUSSION; for said

violation presented in APPELLANT'S BRIEF, at pgs. 28- 30, specifying Art. 38:22TCCP

"requires the trial court to make "WRITTEN FINDINGS OF FACTS AND CONCLUSIONS OF LAW"

were a question is raised as to the voluntariness of the statement of accused. Ibid.

at sec. 6. 'The court MUST enter an order stating its conclusion as to whether or not

the statement was voluntarily made, along with specific FINDINGS OF FACT upon which

THE CONCLUSION WAS BASED, which ORDER SHALL BE FILED AMONG THE PAPERS OF THE CAUSE. 1

Ibid. Such was not done in this case." Nor was it done in the ABATED WRITTEN FINDINGS

OF FACTS· AND CONCLUSIONS OF LAW OF THE RECORD, NOR HAS IT BEEN RULED ON OTHER THAN THE

APPELLATE O)UR.T'S FINDING AS "MCX>T." APPELLANT'S BRIEF, supra. (See also, SIXTH COURT OF

APPEALS, ORIGINAL OPINION, NO. 06-09-00225-CR, at pg. 2, F.N. 1, Id.).

FURTHERMORE, AS OPINED IN THE COURT OF CRIMINAL APPEALS (at F.N. 3, slip opin.)

" ... the court of appeals later abated the case to the trial court to enter written

findings of fact and conclusion of law. After remand, the only finding relevant to the

traffic stop stated: '1. The Court FINDS that on August 25, 2008, Timothy Lee Robinson

was stopped by Mt. Pleasant Police Department officers for a traffic violation.' There

were NO SPECIFIC FINDINGS OF FACT relating to the appellant's use of his turn signal

or THE CHARACTER OF THE ROADWAY. The trial court also DID NOT MAKE A CREDffiiLITY

DETERMINATION AS TO MUNOZ 1 S TESTI.foi)NY. Moreover, THERE ·WAS NO SPECIFIC CONCLUSION OF

LAW relating to the underlying question WHETHER MUNOZ HAD THE NECESSARY REASONABLE

SUSPICION TO STOP THE APPELLANT FOR A TRAFFIC VIOLATION." (COURT OF CRIMINAL APPEALS,

SLIP OPINION, PD- 0238 -:ll, at F.N. 3, Id.).

"In a recent opinion in STATE v MENDOZA, we (COURT OF CRIMINAL APPEALS) observed

that, in reviewing a trial court's ruling on a motion to suppress, APPELLATE COURTS

SHOULD NOT HAVE TO 'PRESUME, ASSUME, OR GUESS' WHAT historical facts a trial judge

found IN MAKING HIS OR HERS WRITTEN FINDINGS AND CONCLUSIONS WHEN THOSE FACTUM.

FINDINGS ARE IN<Xl-IPLETE OR AMBIG£.XXJS. 365 SW 3d 666, 671. (Tex Crim App 2012). Id.

Yet this is PRECISELY WHAT THE SIXTH COURT OF APPEALS HAS ACCOMPLISHED.

28

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGSOF FACT AND CONCLUSION OF LAW" omitting m3.terial facts relevant

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:

In a most recent opinion the COURT OF CRIMINAL APPEALS observed that in reviewing

a trial court's ruling on a MOTION TO SUPPRESS, appellate courts should not have to

"PRESUME, ASSUME, OR GUESS" what historical facts a trial judge found in making his

or her WRITTEN FINDINGS AND CONCLUSIONS when those FACTUAL FINDINGS ARE INCOMPLETE OR

AMBIGUOUS. (STATE v MENDOZA, 365 SW 3d 666, 671 (Tex Crim App 2012); ROBINSON, PO-

0238 - lL ID. at slip opin, f.n. 3)). Then went on to emphasize, "[F]actual findings

are who DID WHAT, WHEN, WHERE, HOW, OR WHY. THEY ALSO :INCLUDE CREDIBILITY DETERMINATIONS.

They do not include legal rulings on 'reasonable suspicion' or 'probable cause'; those

are:re-ga1conclusions subject to de novo review, not deference." (STATE v SHEPARD, 271

SW 3d 281, 291 (Tex Crim App 2008), Id. at ROBINSON, slip opin f.n. 27).

RELATOR filed a MOTION TO SUPPRESS, prior to trial, any and all evidence stemming

from the PRETEXT TRAFFIC STOP, TO THEREBY, INSTITUTE A CUSTODIAL INTERROGATION OF

RELATOR ON THE BASIS OF A TIP FROM AN UNIDENTIFIED AND UNRELIABLE INFORMANT, WITHOUT

THE USE OF PROCEDURAL SAFEGAURDS EFFECTIVE TO SUCURE THE PRIVILEGE AGAINST SELF -

INCRIMINATION PROVIDED UNDER THE UNITED STATES CCI'lSTITm'ION. MIRANDA v ARIZONA, 384

US 436, 444, 86 S Ct 1602, 16 LEd 2d 694 (1966). The holding of MIRANDA is codified

in Art. 38.22 of the TCCP; JONES v STATE 944 SW 2d 642, 650 n. 11 (Tex Crim App 1996);

APPELLANT'S BRIEF, Id. at pgs. 29- 30; ROBINSON, PD- 0238- 11, slip opin. Id. at 3).

At a pre -trial hearing on the [RELATOR'S] motion, THE ONLY WITNESS WAS DETECTIVE

CESAR MUNOZ OF THE MOUNT PLEASANT POLICE DEPARTMENT, MUNOZ testified, NOTICE THE

STRUCTURE OF THE ANSWER, he observed the vehicle Robinson was driving "FAILED TO MAKE

A------- (WHAT ?) USE THEIR TURN SIGNAL AT THAT TIME WHEN IT TURNED ONTO MARGARET FROM

NINTH." The UNDERLINED IS A PREPARATORY STATEMENT devised between the .DISTRICT ATTORNEY

AND MUNOZ IN AN ATTEMPT TO ADD LEGITIMACY TO AN CJI'HERWISE "UNLAWFUL TRAFFIC STOP, " to -

wit all MUNOZ has to do is :hold to this PREPARATORY STATEMENT AS HIS REASONABLE BELIEF.

(See 6th COURT OF APPEALS, ORIGINAL OPINION, 06-09-00225-CR, Id., at pg. 6).

The MOUNT PLEASANT POLICE DEPARTMENT is SWORN IN TO ,FIRST AND FOREMOST, UPHOLD

THE LAWS AND ORDINANCES OF THE CITY OF MOUNT PLEASANT. Therefore, in order to commit

a TRAFFIC VIOLATION it has to be AGAINST A LAW OR ORDINANCE OF THE CITY OF MOUNT

PLEASANT.

29

.J()

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:

MUNOZ described THE INTERSECTION of Ninth and Margaret as follows:

Where the road actually "Ys", there is !'A DEAD END ROAD TO THE LEFT," but it is "A

ROADWAY WITH RESIDENCES ON IT, and THERE'S A ROAD TO THE RIGHT, which MARGARET

CONTINUES ONTO ..... .

FIRST, the ny• being used 1n this instance gives a complete misconception of the

formation of the two streets. IF one is to use a nyn to describe mentally this street

formation, one would be better informed as to this configuration with the use of a

SMALL "y", with NINTH STREET BEING THE SMALL LINE ON YOUR LEFT LOOKING AT THE SMALL>"y',

and MARGARET STREET BEING THE LONG LINE ON YOUR RIGHT LOOKING AT THE SMALL "y"< with

the UPPER PORTION ON THE RIGHT OF THE SMALL "yll<:being THE'DEAD'END''IOMARGARET STREET.

SECaiD, THE DEAD END OF MARGARET (THE RIGHT UPPER PORTION OF THE SMALL "y~) has

ONE HeME WITH A DRIVEWAY (AS YOU MAKE THE LEFT HAND TURN OFF NINTH STREET TO MARGARET) ,

ON THE RIGHT, AND ON THE LEFT THERE IS A RESIDENCE HAVING "NO VEHICULAR ACCESS OTHER THAN

PARKING," AS THIS STUB "OOLY RUNS THE LENGTH OF THESE 'lW) RESIDENCES. r.ars• HAVING A

BARRACADE AT THIS DEAD END.,. "WITH NO THROUGH TRAFFIC."

THIRD, •THE INTERSECTION,• IS A MISNOMER, WHEN A PERSON COMES DOWN NINTH STREET

TOWARD MARGARET STREET, UNLESS YOU WANT TO VISIT ONE OF THE TWO RESIDENCES ON EITHER

SIDE OF THE STUBBED DEAD END TO MARGARET, WHICH ~S LEFT OFF NINTH AS IT CHANGES TO

MARGARETi THE NINTH STREET CHANGES TO MARGARET IN THE CURVE TO THE RIGHT, NO INTERSECTION.

PRECISELY, At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ

described as incorrect. When asked, "[D]oes NINTH STREET 'CURVE IN'IO' MARGARET' DRIVE ?"

MUNOZ RESPONDED, "YES rr DOES, but the way that indicates is incorrect to the actual

way the street is. That's incorrect." (See 6th COURT OF APPEALS, supra, Id., at pg. 9-

lO)(See also, REPORTER'S RECORD, VOLUME 5, EXHIBIT DX- l; APPELLANT BRIEF, pg 22 at 7).

FINALLY, for the best MENTAL PICTURE FOR THE CONFIGURATION OF NINTH AND MARGARET

COMBINING; PUT ON A PAIR OF BOOTS, STAND ON YOUR HEAD, LOOK DOWN AT THE BOOTS ON YOUR

FEET. YOU'LL SEE THE TOP OF THE BOOTS FROM YOUR TOES, ACROSS THE TOP OF YOUR FOOT TO

YOUR ANKLE, THEN UP THE UPPER PART OF THE BOOT TO YOUR KNEES. SEE THAT? O.K .. NOW,

NINTH STREET STARTS AT YOUR TOES AND COMES ACROSS THE TOP OF YOUR FOOT AND AT YOUR

ANKLE IT GOES UP TO YOUR KNEE AS MARGARET DRIVE (STREET). H~, AT YOUR ANKLE.IF

YOU GO TO THE HEAL OF THE BOOT IT DEAD ENDS, AS DOES MARGARET DRIVE, NO INTERSECTION.

30

3!

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questionong the lawfulness of RELATOR'S CONVICTION, PRECISELY:

NINTH STREET'S NAME CHANGE 'lU MARGARET DRIVE FR(JIIJ THE DIRECTION [RELATOR) WAS

TRAVELING "IS NO MORE THAN A CURVE IN THE ~''.I'W:J EANE STREET'":, OR "LANED ROADWAY WHICH

IS DIVIDED INTO ... TWO ... CLEARLY MARKED LANES FOR VEHICULAR TRAVEL" AND OOT, " .•• AN AREA

WITHIN WHICH VEHICLES TRAVELING UPON DIFFERENT STREETS AT ANY OTHER ANGEL 'MAY COME

IN CCNFLICT ~ ' " NOT AN INTERSECTIOO IN ACCORDANCE WITH CITY CODES OF MT. PLEASANT, TEXAS,

CODE OF ORDINANCES, SECTION 70.01, NOR UNDER SECTION 71.030 OOES IT ~RE A TURN·

SIGNAL, AND AS SUCH IT IS "NOT A TRAFFIC VIOLATION UNDER SAID MT PLEASANT CITY CODE OF

ORDINANCES." (See APPENDIX, TAB A: CITY CODES OF MT. PLEASANT, TEXAS; CODE OF ORDINANCES,

SECTIONS 70.01 and 71.030)(See also, DEFENSE EXHIBIT 1; and, TAB 2, RELATOR'S SUPPLE-

MENTAL DIAGRAM OF NINTH STREET AND MARGARET DRIVE CONFIGURATION).

At the SUPPRESSION HEARING, MUNOZ, "When asked, Does Ninth Street CURVE ImD

Margaret Drive ? Munoz responded, YES,' IT OOES ••• " THE INCORREC'INESS MUNOZ QUESTIONED

WAS, " ... [b}ecause in [the defense exhibit], East Eighth does not run into Margaret,

and then you've gibt East Ninth, and they run parallel to each other .. ", THIS IS AT •

TRIAL.(See, 6th COURT OF APPEALS, ORIGINAL OPINION, supra, at pq. 10,. Id.).

FURTHERMORE, AT TRIAL, "MUNOZ [chanqed testimony from SUPPRESSION HEARING by]

admittinq East Ninth Street and Margaret Drive MERGE at their INTERSECTION.<When asked

whether there were any TRAFFICiSIGNS OF 'ANY KIND" AT THE INTERSECTION, MUNOZ responded,

'I don't believe. It's just a ---[ANOTHER PREPARATORY STATEMENT] IT'S AN INTERSECTION."

"THE RECORD ALSO CONTAINS EVIDENCE THAT THE TRAFFIC FR~ 'NINTH STREET OOES MERGE ONTO

MARGARET DRIVE.'"(6th COURT APPEALS, supra, Id., at pq. 10).

AT TRIAL, LAKESHIA WILLIAMS, "A LICENCED;DRIVER IN THE STATE OF TEXAS", CONFIRMED

THERE ARE ID TRAFFIC SIGNS ••• AT THIS INTERSECTION, " . . . . OR WHAT DETECTIVE MUNOZ

CONSIDERS TO BE THE INTERSECTION OF NINTH AND MARGARET ? ... IT'S JUST A CURVE .... JUST

CURVES AROUND ... NO STOP SIGN OR YIELD SIGN ... " Id. at pg. 11.

If the operator is proceeding straight, or following the direct course of the road,

a signal is not required. The fact that the street name of the road may change is not

necessarily determinative of whether an operator is following the direct course of the

road. It is the course of the road and traffic that are determinative. The Texas

Tranaportation Code OOES NOT RmUIRE~an operator PROCEEDING STRAIGHT THR<XJGH AN

INTERSECTION 'lU SIGNAL. WHEN A ROAD CURVES, MAHAFFEY EXPLAINS THAT AN OPERATOR FOL:r.a-n:NG

31

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:

THE DIRECT COURSE OF THE ROAD "IS Nai' REX)UIRED TO SIGNAL." MAHAFFEY, 316 SW 3d at 639.

6th COURT OF APPEALS, supra, Id., at 9.

The defense, ... relied upon . the Beaumont Court of Appeals' decision 1n TRAHAN v

STATE, 16 SW 3d 146, 147 (Tex App- Bea:umont 2000, no pet.), at trial. Similar to

MAHAFFEY, the Beaumont court.held "the code does not equate moving right br left to a

'turn.'" Id. (concluding defendant Nar REQUIRED TO SIGNAL EXIT FROM FREEWAY). [NO

DIFFERENT THAN THE RELATOR'S MOVEMENT FROM NINTH TO MARGARET, "Nai' RmUIRED TO SIGNAL

EXIT FROM NINTH ';J\T THE CURVK·INTOMARG/\RFe' SMALL y EXAMPLE = NINTH/EXIT~·AT SMALL >y,

ENTER INTO MARGARET y< MARGARET LONG SIDE SMALL y, no difference than exiting from

freeway."] The STATE, citing MAHAFFEY, 316 SW 3d at 643, note[d] "the Court of Criminal

Appeals has approved of [TRAHAN'S reasoning] to a limited extent, not applicable here."

[6th Court of Appeals explains], Other than explaining MAHAFFEY as "holding that a

'MERGE;' ·.IS NOT A 'TURN' THAT REQUIRES A SIGNAL UNDER THE TRANSPORTATION CODE, " THE

STATE [DID] NOT EXPLAIN WHY THE REASONING OF MAHAFFEY IS NOT APPLICABLE. Although the

facts of MAHAFFEY are distinguishable, THE CLARIFICATION OF THE MEANING OF THE TERM

"TURN" IS APPLICABLE ID THE FACTS OF THIS CASE. 6th COURT OF APPEALS, supra, Id., at 8.

As previously suggested, as MOUNT PLEASANT POLICE DEPARTMENT OFFICERS, both CESAR

MUNOZ AND SIMON RAY PORTER, ARE NOT REQUIRED TO. ESTABLISH VIOLATIONS OF THE TEXAS

TRANSPORTATION CODES, HOWEVER, IN ORDER TO ESTABLISH TRAFFIC VIOLATIONS UPON THE STREETS

AND BYwAYS FOR VEHICULAR TRAVEL WITHIN THEIR JURISDICTION THEY ARE ro APPLY THE

ESTABLISHED CITY OODE OF ORDINANCES. NEITHER THEY, THE TRIAL COURT, NOR THE 6th COURT

OF APPEALS have utilized the primary reasoning of these said codes to make the

affirmative findings needed to establish a TRAFFIC VIOLATION. In fact, UNDER MOUNT

PLEASANT CITY CODES AND ORDINANCES §70.01 and §77.030, ROBINSON COMMITTED NO TRAFFIC

VIOLATION AND ANY SUGGESTION TO THE CONTRARY IS AN ABSOLUTE TRAVESTY OF JUSTICE, ABUSE

OF DISCRETION, PROSECUTORIAL MISCONDUCT, AND·IN DIRECT VIOLATION OF THE CODE OF ETHICS

THIS SYSTEM AS OFFICERS OF THE COURTS ARE SWORN TO UPHOLD ESPECIALLY IN SIGHT OF THE

FACTS AS REVEALED ABOVE AND THE FOLLOWING, SPECIFICALLY:

The definition of "AN INTERSECTION" the:MOUNT PLEASANT CITY ORDINANCE §70.01 is;

" ... the area within which vehicles traveling upon different streets joining at any

other angel may come in conflict." THERE IS NO CONFLICT IN A 'MERGE' OR A 'CURVE.'

32

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS-

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

'

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:

Furthermore, §71.030 of the MOUNT PLEASANT CITY CODES OF ORDINANCES SPECIFIES:

STOPPING AND TURN SIGNALS. (A) General. (IN PERTINENT PARTS)

(1) When ANY OTHER TRAFFIC MAY BE AFFECTED BY SUCH MOVEMENT, no person shall turn any

vehicle without giving a signal of his other intention to turn right or left ....

(4) The signal lamps provided for in this section shall be used to indicate an intention

to turn, change lanes, or start from a parked position ..•..•..

The aforementioned are to be considered the defining factors for a conclusion of a

traffic violation within the jurisdiction of the MOUNT PLEASANT DETECTIVE CESAR MUNOZ

AND POLICE OFFICER SIMON RAY PORTER, and the defining factor is "THE CONFLICT WITH TRAFFIC,

AND/OR ANY O'I'HER TRAFFIC AFFECTED BY SUCH MOVEMENT, " TO IMPLY A VIOLATION OF THE CITY

CODE OF ORDINANCES AS A "TRAFFIC VIOLATION." (See, CITY CODES OF MT. PLEASANT, TEXAS,

CODE OF ORDINANCES, SECTION 70.01 and 71.030, at APPENDIX TAB A)(See also, TAB 2,

RELATOR'S SUPPLEMENTAL DIAGRAM OF NINTH STREET AND MARGARET DRIVE CONFIGURATION).

The record contains evidence that at the SUPPRESSION HEARING, the only witness to

testify, DETECTIVE CESAR MUNOZ, TESTIFIED BO'I'H, NINTH STREET AND MARGARET DRIVE "MERGE,"

and LATER TESTIFIES, "WHEN ASKED, 'DOES NINTH STREET CURVE IN'ID MARGARET DRIVE ?'-

MUNOZ RESPONDED, 'YES IT DOES ••• '" ISN'T THAT PERJURY? OR HOW ABOUT NOW WHEN MUNOZ

AT TRIAL, •• "ADMTI'TED EAST NINTH S'lREET AND MARGARET DRIVE MERGE AT THEIR INTERSECTION. "

Either way MUNOZ, ON THE RECORD ADMITS 'IWICE THE 'IWO STREETS :"MERGEn AND ONCE THEY

"-CURVE" INTO EACH arHER, WITH THE TESTIMONY OF LAKESHIA WILLIAMS TESIFYING THE ':11«)

STREETS "CURVE" INTO EACH OTHER, THEREFORE, " •• THE OFFICER'S INCORRECT UNDERSTANDING

OF THE LAW DOES OOT GIVE RISE TO A REASONABLE SUSPICION"," as the record and facts of

the record reveal. Especially,based on the STATE PROSECUTOR'S, STATE'S PETITION FOR

DISCRETIONARY REVIEW, CONFIRMS THE MATTER, SPECIFICALLY, at pg. 8:

"Based on the 6th court's recitation of the trial record, the jury was presented

with NO DISPUTED EVIDENCE as to how the two roads at issue physically meet. At trial,

OFFICER MUNOZ AGREED THAT NINTH AND MARGARET MERGE AT THEIR INTERSECTION". AND THAT THERE

ARE NO TRAFFIC SIGNS OF ANY KIND AT THE INTERSECTION. Slip Op. at 10. The defense

introduced a map SHCMING THAT NINTH AND MARGARET ARE "INDISTINGUISHABLE FRCM lA SINGLE

ROAD EXCEPT FOR THE ASSIGNED NAMES." Slip Op. at 16. [RELATOR'S] girlfriend confirmed

that N:n:NTH CURVES INTO MARGARET WITHOUT A STOP [MERGE]OR YIELD SIGN. Slip Op. at 11.

33

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

to the testimony given by MOUNT PLEASANr DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questionong the lawfulness of RELATOR'S CONVICTION, PRECISELY:

In short, THE PHYSICAL DESCRIPT.WN OF H~ NINTH AND MARGARET MEET WAS DEPICTED IN A

MAP THAT WAS CCEROBORATED BY [BO'l'H] AT LEAST ONE wriNESS[ES] AND CCNI'RADICTED BY

NONE. Id. (See also, 6th COURT OF APPEALS, ORIGINAL ANSWER, Id. at pg. 6, supra).

As residents of MOUNT PLEASANT, TEXAS, a reasonable person would tend to believe

it to be quite within the realm of possibility that the; HONORABLE JIMMY LEON WHITE,

TRIAL JUDGE IN THIS CASE; HONORABLE CHARLES C. BAILEY, DISTRICT ATTORNEY, TRIAL COUNSEL

FOR APPELLEE; and, HONORABLE SAM W. RUSSELL, TRIAL COUNSEL FOR [RELATOR]; as either,

residents or merchants, ARE AWARE OF THE TWO STREETS IN QUESTION AND THEIDR CONFIGURATION

HELPING 'IO EXPLAIN THE '!RIAL JUDGE ABATED REFUSAL ID ADDRESS "SPECIT:U:C FINDINGS OF FACT

RELATING THE [RELATOR'S] USE OF HIS TURN SIGNAL OR THE CHARACTER OF THE ROADWAY; 'HIE

'!RIAL COURT ALSO. DID NOT :MAKE-~; A CREDIBILITY DETERMINATION AS TO MUNOZ'S TEST]JIX)NY;

MOREOVER, THERE WAS NO SPECIFIC COOCLUSION OF LAW ID THE .UNDERLYING QUESTION OF WHETHER

MUNOZ HAD THE NECESSARY REASONABLE SUSPICION ID SIDP THE [RELATOR] FOR A TRAFFIC

VIOLATION.n (See COURT OF CRIMINAL APPEALS, PD-0238-ll, Slip Op.)

FURTHERMORE, IT IS QUITE HIGHLY POSSIBLE, AND MORE LIKELY THAN NOT, ALL ARE OR

WERE AWARE THE '1m OFFICERS, DETECTIVE CESAR MUNOZ'S AND SIMON RAY PORTER'S BEING

UNDER INVESTIGATION AND EVmTIAI.LY INDICTED FOR DRUG CRIMES AND/OR PER.JURY, AND liDW

COOVICTED. (See, TAB 3, APPENDIX, "OFFICER ARRESTED ON PERJURY CHARGES," dated AUGUST

24, 2010, 12:00 am; See also, APPELLEE'S BRIEF, NO. 06-09-00225-CR, Received in the

Court of Appeals Sixth District August 26, 2010, Texarkana, Texas, Debra Autrey, clerk).

RELATOR •s:mother, Glenda Robinson',. attempted to retrieve the Daily Tribune print out

from Tribune personneL however, on first attempt a phone call was made to persons

unknown and was denied any information about DETECTIVE CASAR MUNOZ and only after

several attempts later was printed out OFFICER SIMON RAY PORTER'S information of ARREST

WARJRANT, INTERNAL AFFAIRS INVESTIGATION, FELONY CHARGE OF AGGRAVATED PERJURY, WITH

RELEASE FROM THE POLICE DEPARTMENT OF MOUNT PLEASANT, TEXAS. The person whom OFFICER

SIMON RAY PORTER issued FALSE STATEMENTS UNDER OATH IN A JURY TRIAL was RUTH ANN

SHARPER, who happens to be RELATOR'S AUNT, the charge, "two indictments charging her

with possession of marihuana and possession of a controlled substance." PORTER QUOTED

A STATEMENT ASSUMEDLY MADE BY SHARPER AT THE TITUS JAIL ON DECEMBER 9, 2009 APPROXIMATELY

2 MONTHs AFTER RELA'IOR • s=JIJRY '!RIAL ro -WIT PORTER TESTIFIED, SEPTEMBER 15/16, 2009. Id.

34,

\ III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant

to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER

SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:

DETECTIVE CESAR MUNOZ,too, was under investigation, indicted on FEDERAL DRUG

CHARGES and too was released from the MOUNT PLEASANT POLICE DEPARTMENT, all of which lS

public information that this RELATOR is unable to retrieve, but was made aware of the

investigation through APPELLATE ATTORNEY OF RECORD, L. Charles van Cleef, State Bar No.

00786305, P.o. Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: (903)

248'-8244; Fax: (903) 248-8249, prior to filing RELATOR'S APPEAL NO. 06-09-00225-CR, in

the SIXTH DISTRICT COURT OF APPEALS in TEXARKANA, TEXAS, that was submitted JULY 23,

2010, not only to the COURT OF APPEALS, but also to, Charles c. Bailey, Titus County

District Attorney, that surely was aware of the ongoing investigations of POLICE OFFICER

SIMON RAY PORTER and/or DETECTIVE CESAR MUNOZ. (APPELLANT'S BRIEF, Id. at pg. 38).

This explanation clearly rev:eals the trial court JUDGES reluctance in the ABATED

FINDINGS OF FACT AND CONCLUSION OF LAW to declare any findings of relevance to the .

traffic stop other than as stated in COURT OF CRIMINAL APPEALS, slip op., n. 3, "1.

The Court FINDS that on August 25, 2008, Timothy Lee Robinson was stopped by Mt.

Pleasant Police Department officers for a traffic violation." The COURT continues,

"There were no SPECIFIC FINDINGS OF FACT relating to the APPELLANT'S USE OF HIS 'lURN

SIGNAL OR THE CHARAcrER OF THE RO.AIMAY~ The TRIAL COURT ALSO DID Nor MAKE A CREDffiiLITY

DETERMINATIOO AS· TO MUOOZ 'S TES'l'IMa-N. Moreover, THERE WAS NO SPECIFIC CGJCLUSION OF

LAW RELATING TO THE UNDERLYING QUESTION OF WHETHER MUNOZ HAD THE NECESSARY REASONABLE

SUSPICIOO TO STOP THE APPELLANT FOR A TRAFFIC VIOLATIOO." Id. at slip op. n. 3. The

trial court JUDGE at the time of this ABATEMENT, and it would be within reason to say

the DISTRICT ATTORNEY'S OFFICE, as well as a majority of the CITY OF MT. PLEASANT,

would be reluctant to give either, DETECTIVE CESAR MUNOZ and/or P(J)LICE OFFICER SIMON

RAY PORTER, much if any credibility being made aware of the ongoing investigations into

there assumed long standing DRUG INVOLVEMENT AND PERJURY TACTICS WITH ARRESTS TO PROVE

SUCH INVOLVEMENT, THAT THE OFFICIALS IN MT. PLEASANT ARE QUITE AWARE OF.

H~, A REASONABLE PERSON might tend to question the DISTRICT ATTORNEY'S OFFICE

as to just two days prior to filing APPELLEE'S BRIEF, AUGUST 24, 2010, with the ARREST

OF THESE OFFICERS, KNOWING THEIR INVOLVEMENT AND TESTIMONY IN THIS CASE, WHY WOULD THE

DISTRICT ATTORNEY'S OFFICE CCN.l'INUE '10 PURSUE THIS CASE, UNLESS THEIR IS AN ALTERIOR

MOTIVE, OR AGENDA WrTHIN THEIR OFFICE, FILING APPELLEE'S BRIEF AUGUST 26, 2010.

35

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

E. The RELEASE of HIRED APPELLATE ATTORNEY; L. Charles van Cleef, State Bar No. 00786305,

P~O.Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: .903-248-8244,

Fax: 903-248-8249; and, .the COURT'S APPOINTMENT,of; Charles Mac Cobb, ATTORNEY-at-

LAW, P.O.Box 1134, Mt. Pleasant, Texas 75456; for the precise issues to follow:

RELATOR hired under contract for the entire appellate process, until finality, the

LEGAL REPRESENTATION OF, L. Charles van Cleef, for a specified sum of money.

Appellate Attorney L. Charles van Cleef submitted; on JULY 23, 2010, APPELLANT'S

BRIEF. On AUGUST 24, 2010 the APPELLEE'S BRIEF was SERVED, VIA FAX NO.: 903-248-8249,

on Charles VanCleef, VanCleef Law Office, P.C., P.O. Drawer 3267, Longview, Texas

75606.

On JANUARY 13, 2011, the COURT OF APPEALS reversed the conviction in an unpublished

opinion. ROBINSON v STATE, NO.: 01-09-00134-CR (Tex. App. -Texarkana, delivered JANUARY

13, 2011). Neither party filed a motion for rehearing. The State's PETITION FOR

DISCRETIONARY REVIEW was due on FEBRUARY 14, 2011. STATE'S PETITION FOR DISCRETIONARY

REVIEW (PDR), Id. at pg. 2, Statement Of Procedural History.

APPELLATE ATTORNEY Charles Van Cleef was mailed a copy of PDR on FEBRUARY 14, 2011

the same day due, and without any notification for extentions of time, was not filed in

the SIXTH COURT OF APPEALS until, FEBRUARY 22, 2011, and not filed in the COURT OF

CRIMINAL APPEALS until MAY 03, 2011. STATE'S PDR, Id. at cover page, No. 06-09-00225-

CR, PD-00238-11.

RELATOR having no knowledge of the PDR PROCESS taking place, no notification from

APPELLATE ATTORNEY Charles Van Cleef, nor notification from either the court systems

or the state, thereby, has to assume,·as the PDR WAS FILED BY LISA C. McMINN'S STATE

PROSECUTING ATTORNEY' S OFFICE by ASSISTANT STATE'S ATTORNEY, JOHN R. MESSINGER Bar

No.: 24053705, that the OFFICE OFCHARLES C. BAILEY, TITUS COUNTY DISTRICT ATTORNEY,

/

105 W. lst STREET, STE. 102, MT. PLEASANT, TEXAS 75455-4462, HAD RECUSED THEMSELVES ~~·.

due to their knowledge of the INVESTIGATION AND PROSECUTION OF THE MT. PLEASANT POLICE

DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY PORTER. Furthermore, this lack of RELATOR'S

knowledge DENIED HIM DUE PROCESS FOR ANSWERING THE STATE'S PDR, SINCE APPELLATE ATTORNEY

Charles Van Cleef failed to either file a response or notify this RELATOR of this PDR

PROCESS, which would have clearly brought about a different outcome. Not to mention

the UNTIMELY FILING OF THE STATE'S PDR WITHOUT KNOWN EXTENTION OF TIME TO FILE, THEREBY,

SHOULD HAVE BEEN DECLARED OF NO FORCE OR EFFECT DUE TO UNTIMELY FILING.

36

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

E. The RELEASE of HIRED APPELLATE ATTORNEY.; L. Charles van Cleef, State Bar No. 00786305,

P.o. Box 2432, 431 N. Center Street, Longview, Texas 75606-24~2, Phone: 903-248-8244,

Fax:903-248-8249; and, the COURT'S APPOINTMENT of; Charles Mac Cobb, Attorney-at-

LAW, P.O. Box 1134, Mt. Pleasant, Texas 75456; the precise issues to follow:

The RECORD is clear that HIRED APPELLATE ATTORNEY L. CHARLES van CLEEF; was

NOTIFIED of the STATE PROSECUTING ATTORNEY'S intent to file a PDR on FEBRUARY 14, 2011

(See STATE'S PDR, Id. at pg. 13, CERTIFICATE OF SERVICE); filed with SIXTH COURT OF

APPEALS FEBRUARY 22, 2011, and COURT OF CRIMINAL APPEALS MAY 03, 2011; AWARE OF RELATOR'S

IMPRISONMENT IN TDCJ-ID, thereby had a duty and obligation, had attorney of record made

a decision not to file said response to the STATE'S PDR, to at least notify RELATOR of

said decision to which RELATOR could have filed a· response· PRO-SE. However, this would

have meant releasing said attorney of record from any further obligations under contract

to perform, i.e. totality of the appeal process, appeal bound, PDR answer, SUPPLEMENTAL

ANSWER ON REMAND, inter-alia.

The TR[AL COURT clearly ABUSED ITS DISCRETION in the release of HIRED APPELLATE

ATTORNEY L. Charles van Cleef after ATTORNEYS FILING AND COURT GRANTING APPEAL BOND

without any notification to, or response from RELATOR, by a hearing or otherwise, to

allow RELATOR to interject the contractual obligations not yet performed} as agreed.

This proceeding took place sometime in JULY OR AUGUST, with: 1both, TRIAL COURT AND

APPELLATE ATTORNEY fully aware of RELATOR'S prison confinement, thus the purpose for

the APPEAL BOND. Furthermore, it cannot be said that APPELLATE ATTORNEY had been

released before the due date of RELATOR'S PDR RESPONSE, had the contractual obligation

been met between RELATOR AND APPELLATE ATTORNEY, said ATTORNEY would have withdrew .:

sooner than JULY OR AUGUST to retrieve the remainder of his money placed into the IOLTA

TRUST ACCOUNT.

For the reasons above RELATOR believes the TRIAL COURT ABUSED its DISCRETION, not

holding a hearing, or giving notification of intent, to RELEASE HIRED ATTORNEY L.

CHARLES van CLEEF who had been contractually hired to see the appeal process through

to its completion, RELATOR'S understanding of said contract was to include PDR ANSWER,

APPEAL BOND, INTER-;:ALIA. Had RELATOER been advised of release there would surely been

an OBJECTION ENTERED ON THE GROUNDS LISTED-

COURT APPOINTED ATTORNEY upon RELATOR PRISON\RELEASE, CHARLES MAC COBB, MADE I'D

REPRESENTATION FOR RELA'IOR,JNO ANSWER TO STATE SUPPLEMENT/IN REMAND, FILED NOTHING, OONE

37

.38

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

E. The RELEASE of HIRED APPELLATE ATTORNEY; L~Charles van Cleef, State Bar No. 00786305,

P.O. Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: 903-248-8244,

Fax: 903-248-8249; and, the COURT'S APPOINTMENT of; Charles Mac Cobb, Attorney-at-

LAW, P.O .. Box'll34, Mt. Pleasent, Texas 75456; the precise issues to follow:

RELATOR not made aware of HIRED APPELLATE ATTORNEY'S RELEASE until PRISON RELEASE

ON APPEAL BOND, as recalled sometime in SEPTEMBER or OCTOBER 2011, being brought before

the TRIAL COURT JUDGE, was advised the need to obtain counsel. RELATOR questioned the

TRIAL COURT JUDGE'S release on a contractually HIRED ATTORNEY by withdrawal through a

COURT ORDER, TO NO AVAIL. RELATOR'S finances had been-deminished through the recent

imprisonment denying the ability to rehire an attorney, therefore, TRIAL COURT made an

APPOINTMENT OF CHARLES MAC COBB.

APPOINTED ATTORNEY, CHARLES MAC COBB, 1n order to be efficient /effective counsel

for this APPEAL PROCESS should have, at a very minimum, filed some form of response to

the STATE SUPPLEMENTAL BRIEF ON REMAND. PARTICULARLY, to:the ISSUE OF "NO OBJECTIONn

TO A "CHAIN OF CUSTODY TESTIMONY BY WrmESSES 1 DETECTIVE. RAY YOKEL AND KAREN SHUMATE 1

SPEAKING TO THE ISSUE OF H~ THE ENVEWPE (STATE'S EXHIBIT 2) PROCEOORELY CAME TO HOLD

THE DRUGS IN QUESTION.n (SEE, EXPLAINATION herein, Id. at pgs 22-23, B. The refusal to

revisit the pre-trial ruling on MOTION TO SUPPRESS in light of RE-LITIGATED TRIAL

EVIDENCE; See also, RR V 3, P 23; 24-25; 28-29; and 105-112).

RELATOR CLEARLY DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER, BOTH, THE

TEXAS AND UNITED STATES CONSTITUTIONS, THROUGH THEIR FAILURES TO ADDRESS EITHER THE PDR

OR STATE SUPPLEMENTAL ON REMAND. IT IS A WELL KNOWN FACT IF NOTHING IS FILED ON BEHALF

OF A CERTAIN PARTY THE COURT'S JOB IS EASY, THEY RULE OFF THE OOLY DOCUMENTS AND ",.,

ARGUMENTS THEREIN PRESENTED BEFORE THE COURT. IN THE IGNORANCE OF THIS ISSUE THE RELATOR

HAS AGAIN BEEN IMPRISONED DUE TO A LACK OF-REPRESENTATION, QUESTIONING THE APPOINTMENT

OF COUNSEL TO DO ABSOLUTELY NOTHING, CONSPIRACY TO CONVICT AND IMPRISON ?

F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:

RELATOR has clearly revealed the DENIAL OF EFFECTIVE REPRESENTATION OF COUNSEL

starting with TRIAL ATTORNEY, HIRED APPELLATE COUNSEL AND THEN THE COURT APPOINTED

. .

ATTORNEY TO DO NOTHING, WASTING TAX PAYERS MOl'iiEY TO ASSURE IMPRISONMENT AND AFFIRMATION

TO A CONVICTION, DENYING RELATOR'S RIGHTS UNDER THE CONSTITUTIONS OF TEXAS AND THE

UNITED STATES TO DUE PROCESS,·~·COUNSEL REPRESENTATION, RIGHT '10 ADDRESS <DVERNMENT

OVERREACH ON UNLAWFUL TRAFFIC srop•:BY-·OFFICERS';':'!UNDER' INVESTIGATION THEN, AND Na-1

CONVICTIONS OF PERJURY AND/OR DRUG CHARGES, MADE<I<NaoJNi. 'IU ALL1 . PARTIES.

38

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:

On MARCH 15, 2014, RELATOR submitted his 11.07 APPLICATION FOR WRIT OF HABEAS

CORP.US to the TITUS COUNTY DISTRICT CLERK to be forwarded to both the TITUS COUNTY

DISTRICT ATTORNEY'S OFFICE and the 76th TRIAL COURT OF TITUS COUNTY for response to

the two grounds presented, PRECISELY:

GROUND ONE: TRIAL COURT ERRED IN FAILING TO GRANT MOTION TO SUPPRESS; and,

GROUND TWO: DENIAL OF EFFECTIVE ASSISTANCE AS A DIRECT RESULT OF COUNSEL'S FAILURE

TO PRESERVE ERROR FOR REVIEW.

Accompanied with MEMORANDUM BRIEF.

The DISTRICITli 'ATTORNEY'S OFFICE as well as the TRIAL COURT REFUSED TO RESPOND WITH

EITHER AN ANSWER AND/OR ORDER. FORWARDING the 11.07 APPLICATION TO THE COURT OF '

CRIMINAL APPEALS.

On APRIL 24, 2014 the 11.07 APPLICATION was received and presented to THE COURT OF

CRIMINAL APPEALS, WR-80, 739-02 / TRIAL COURT NO. CR16,079B.

On JUNE 11, 2014 the 11.07 APPLICATION was DENIED wrmouT WRITTEN ORDER.

Upon further review of the documentation available to this RELATOR, there is a

contention as previously stated herein at,pages 22-23 and 38 at PARTICULARLY, stating

the "NO OBJECTION" sotne 87 pages into the trial hearing WAS IN REGARD TO THE CHAIN OF

CUSTODY TESTIMONY BEING GIVEN BY STATE'S WITNESSES'/. SPECIFICALLY, DETECTIVE RAY YOKEL

and KAREN SHUMATE. See also, RR V 3, P 105 - 112. Compare to RR v 3, P 23, 24 - 25.

"NOT A PRESENTATIOO OF EVIDENCE THAT HAD BEEN PRESENTED AT BEGINNING OF TRIAL WITH

OBJECTION AS HEARSAY AS " •• 'THE STATE WAS ONCE AGAIN AL~ TO PLACE 'THE ALLEX;ED

WRITTEN STATEMENT OF THE APPELLANT 'AND EVIDENCE' DESPITE <DUNSEL'S OBJECTION (HEARSAY)

••• " RR V 3, P 23, 24-25, Id.

RELATOR does not have access to the entire record of this case due to confinement.

HOWEVER, with the documentation acquired, if it is not the contention laid out above,

it is as the GROUNDS in RELATOR'S· 11.07 APPLICATION SUGGEST, SPECIFICALLYi When the

complained of evidence was offered, trial counsel, rather than urge his pre-trial

motion to suppress, stated, NO OBJECTION, THEREBY THE APPEAL COURT REFUSED TO REVISIT

THE ERROR AS THE ERROR WAS NOT PRESERVED. Likewise~, the denial of the MOTION TO

SUPPRESS was in error. This failure to properly preserve the error for review to the

APPEAL COURT would have obviously brought about a different proceeding, had counsel

objected. However, RELATOR does not concede counsel STATED NO OBJECTION TO EVIDENCE.

39

4()

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

< .{;

F. RELATOR 'S 11.07 APPLICATION FOR·WRIT OF .HABEAS CORPUS, PRECISELY:

\

At'the conclusion of:tbe SUPPRESSION HEARING the COURT determined that probable

cause existed for the stop and that the defendant consented to the search of the vehicle.

RR, V 2, P 42, Ibid. The COURT indicated that it would prepare findings of fact and

conclusions to be filed in this case the undersigned finds no evidence that such was

done). Ibid. APPELLANT'S BRIEF, Id. at page 12.

The SIXTH COURT OF APPEALS ABATED THE APPEAL AND ORDERED THE TRIAL CXXJRT 'lU MAKE A

FINDINGS OF FACT and overruled RELATOR'S THIRD POINT OF ERROR AS MOOT. SIXTH COURT OF

APPEALS, MEMORANDUM OPINION, Id. at page 2, f.n. 1. NOTE NO MENTION OF CONCLUSION OF

LAW. Id. REVERSED AND REMANDED FOR NEW TRIAL.

After remand, the ONLY FINDING RELEVANT ro THE TRAFFIC S'IUP STATED: "1. The COURT

FINDS that on August 25, 2008, Timothy Lee Robinson was stopped by Mt~ Pleasant Police

department officers for a traffic violation." There were NO SPECIFIC FINDINGS OF FACT

RELATING TO THE APPELLANT'S USE OF HIS TURN SIGNAL OR THE CHARACTER OF THE ROADWAY.

The trial court ALSO DID NOT MAKE A CREDIBILITY DETERMINATION AS TO MUNOZ'S TESTIMONY.

Moreover, THERE WAS NO. SPECIFIC CDNCLUSION OF LAW;: relating to the underlying QUESTION

OF WHETHER MUNOZ HAD THE NECESSARY/REASONABLE SUSPICION 'lU S'IUP APPELLANT FOR A TRAFFIC

VIOLATION. TEXAS COURT OF CRIMINAL APPEALS, Slip Opinion B, PD-0238-ll, f.n. 3, Id.

There are some very clear and specific reasons why both the TRIAL COURT JUDGE, at

the ABATEMENT, and the TITUS COUNTY DISTRICT ATTORNEY, CHARLES C. BAILEY, REFUSE TO

ADDRESS THE CONTROVERTED, PREVIOUSLY UNRESOLVED FACTS MATERIAL ro THE La;M.ITY OF 'TilE

RELATOR'S CONFINEMFNI'. SPECIFICALLY i

BOTH, HON. JIMMY LEON WHITE, TRIAL JUDGE, AND CHARLES C. BAILEY, DISTRICT ATTORNEY,

are, or were at time of trial and abatement, residents·of MT. Pleasant. As residents

it is highly likely both are, or were, AWARE OF·'1JIE CHARACTER OF THE ROADWAY, NINTH

STREET AND MARGARET DRIVE, AS WERE/ARE DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY

PORTER. NINTH STREET AND MARGARET DRIVE ARE A TWO LANE ROADWAY, TRAFFIC ON ONE'SIDE OF

THE CURVED BLACKIDP BACIL:STREET, CDING ONE D~ON, ON THE O'.mER SIDE GOING THE

OPPOSITE DIRECTION, THERE IS NO MERGE LANE, TO SCCX>T OVER INTO ANOTHER LANE, TI''S A

CURVE "SIMPLY?FOLUMING THE 'D~ <DURSE' OF THE ROAD AND OF THE mAFFIC ON THAT

WINDING ROM." MAHAFFEY v STATE, 316 SW 3d 633, 638 - 643 (Tex. Crim. App. 2010; see

also SIXTH COURT OF APPEALS, REVERSE AND REMAND OPINION, AT page 7, Id.)(See also,

DEFENSE EXHIBIT l; and TAB 2, RELATOR'S SUPPLEMENTAL DIAGRAM NINTH & MARGARET CONFIG.)

40

41

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE. TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:

Whether a driver is required to activate a turn signal IS A QUESTION OF LAW FOR

THE TRIAL JUDGE TO DECIDE. It is a question of statutory, OR ORDINANCE, interpretation

and application of the LAW TO THE FACTS. THE JUDGE DECIDES THE APPLICATION OF LAW

TO FACTS (APPELLEE BRIEF, page 16 of 25).

TEXAS CODE CRIMINAL PROCEDURE (TCCP) ART. 11.07 b, in pertinent part states, " ...

the attorney representing the state •.. shall answer the application not later than the

15th day after the date the copy of the application is received ... "

TCCP ART. 11.07 c, in pertinent part states, "Within 20 days of the expiration of

the time in which the state is allowed to answer, it shall be the duty of the convicting

court to determine whether there are controverted, previously unresolveq facts material

to the legality of the applicant's confinement."

The STATE can't have it both ways, either the ATTORNEY OF RECORD at trial failed

to preserve the ERROR by stating "NO OBJECTION" as RULED BY THE SIXTH COURT OF APPEALS,

OR, as RELATOR STATES in the 11.07 APPLICATION, RELATOR WAS DENIED EFFECTIVE ASSISTANCE

OF CXXJNSEL "F'<:E THE FAILURE TO PRESERVE THE ERROR FOR APPEAL PURPOSES. n

RELATOR further asserts, under FEDERAL LAW this circumstantial evidence, of

record, herein stated, attachedhereto, and through the actions of the participants

stated herein, is sufficient to prove the existance of "A CONSPIRACY TO UNLAWFULLY

AFFIRM THE CONVICTIOO TO a>NFINE RELATOR." FURTHERMOR,E, the AGREEMENT IS INFERRED from

the concert actions among the alleged participants, i.e., DISTRICT ATTORNEY'S OFFICE,

TRIAL JUDGE, TRIAL ATTORNEY, HIRED APPELLATE ATTORNEY, APPOINTED APPELLATE ATTORNEY

v

UPON RELEASE ON APPEAL BOND, ET.AL., AND ARE VOLUNTARY PARTICIPANTS AS INFERRED

FROM THE COLLATION OF CIRCUMSTANCES (18 USCA § 371; see also, US v THON, 917 F 2d 170,

Id.) .

The PARTICIPANTS hereof are criminally responsible for "THE OONSPIRACY" while

acting with the intent to promote and/or assist "THE CONSPIRACY ALLEGED.n PARTICIPANTS

have solicited, encouraged, directed, aided, and/or attempted to aid the OTHER

PARTICIPANTS in the commission of SAID CONSPIRACY; and/or having A LEGAL DUTY TO

PREVENT the commission of SAID CONSPIRACY PARTICIPANTS did act with intent to promote

and/or assist SAID CONSPIRACY, THEREBY, PARTICIPANTS FAILED to make a reasonable effort

to prevent the COMMISSION OF SAID CONSPIRACY (Tex. Pen. Code (TPC) § 7.02).

RELATOR'S FINAL ASSERTION, it is no defense that THE PARTICIPANTS belong to a

41

III

76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS

THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:

F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:

CLASS OF PERSONS that by definition of the offense IS LEGALLY INCAPABLE OF COMMITTING

SAID CONSPIRACY IN AN INDIVIDUAL CAPACITY; and/or that SAID PARTICIPANTS FOR WHOSE

CONDUCT THE CJI'HER PARTICIPANTS IS CRIMINALLY RESPONSIBLE ••• "IS IMMUNE FRa-1 PROSECUTION"

(TPC § 7.03).

IV

THE· COURT OF APPEALS SIXTH. APPELLATE DISTRICT OF TEXAS, JIT'TEXARKANA.

THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY:

l) THE ATTORNEY FOR APPELLEE was to be, and as revealed on cover of APPELLEE'S

SUPPLEMENTAL BRIEF ON REMAND, THE STATE OF TEXAS, STATE PROSECUTING ATTORNEY LISA C.

McMINN AND ASSISTANT STATE'S ATTORNEY JOHN R. MESSINGER, the attorney's who had filed

STATE'S PETITION FOR DISCRETIONARY REVIEW.

If there was to be any further filings, such as APPELLEE'S SUPPLEMENTAL BRIEF ON

REMAND it was to be filed by the ATTORNEY FOR APPELLEE, i.e. LISA Me MINN and/or JOHN

R. MESSINGER, for the fact of the matter being; a) it was to be considered HYBRID -

REPRESENTATION, and any filings as such were to be as nothing for review before the

COURT, THEREBY HAVING NO FORCE OR EFFECT; and, b) the TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, in light of DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY PORTER being INDICTED

AND CONVICTED OF PERJURY AND DRUG OFFENSES, in said county was to RECUSE THEMSELVES

from any other proceedings in this case,respecially, when the OFFICER'S were the J

ARRESTING OFFICER'S TESTIFYING for the TITUS COUNTY DISTRICT ATTORNEY OFFICE, WHO WERE

BEING INVESTIGATED AND EVENTUALLY INDICTED AND CONVICTED OF PERJURY AND DRUG OFFENSES

(see TAB 3, OFFICER ARRESTED ON FELONY PERJURY CHARGES, OFFICER SIMON RAY PORTER;

DETECTIVE CESAR MUNOZ can be found in MT. PLEASANT TRIBUNE PAPER, however, upon request

the staff made a phone call about release and refused to print out on CESAR.MUNOZ).

2) Based on APPELLANT'S BRIEF, due to incarceration RELATOR has:-:no access to

complete record, the TITUS COUNTY DISTRICT ATTORNEY OFFICE has again MISCHARACTERIZED

THE FACTS TO OBTAIN A FAVORABLE RULING FROM THE COURT. APPELLANT'S BRIEF page 13, at

C. Trial Testimony, states, " ... , the State was once again allowed to place the alleged

WRITTEN STATEMENT OF THE APPELLANT and EVIDENCE DESPITE DEFENSE COUNSEL'S OBJECTION

42

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#2, continuation)

(hearsay); ... " RR V 3, P 23, 24- 25, Ibid. THE ENVELOPE i!rl. which the suspected cocaine

was placed (State's Exhibit 2) and a DVD (State's Exhibit 3) were ALSO ~ITI'ED,

without objection. RR V 3, P 28 - 29, Ibid. This RECORD REVEALS at the beginning of

trial the WRITTEN STATEMENT AND EVIDENCE(the cocaine) WAS CLEARLY INTRODUCED:DESPITE

COUNSEL'S OBJECTIOO (HEARSAY).

In APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND at page 7 of 12, the TITUS COUNTY

DISTRICT ATTORNEY OFFICE states, "Subsequently, the State offered as STATE'S EXHIBIT 2

the controlled substance, the subject of Robinson's objection in his motion to suppress.

RR V 3, P 110,·~ 22- P 112, L B.. With the benefit of Munoz's characterization of the

intersection, counsel for Robinson asserted, 'No Objection[,] ''to the admission of

STATE'S EXHIBIT 2 .. RR V 3, P 112, L 10. The evidence was received. RR V 3, P 112, L 11."

These 3 sentences are very misleading, specifically, at the trial the evidence (the

controlled substance)had been removed from THE ENVELOPE (STATE'S EXHIBIT 2 in which

the suspected coci=J.ine was placed, Id. at APPELLANT'S:-BRIEF, j;lage 13, and stated hercein

above)(:REFERENCING SENTENCE 1_, "Subsequently, ..• )~ Furthermore, at this point in the

trial.STATE'S EXHIBIT 2 (THE ENVE.LOPE) RR V 3, P 105,-.112, IS TESTDUNY FOR "JJ'HE CHAIN

OF CUSTODY OvER "THE ENVELOPE" (STATE'S EXHIBIT 2) 1 THE NATURE OF THE CONTRABAND, and

CONTRABAND WEIGHT, BY KAREN SHUMATE, THE RECIPIENT OF THE ENVELOPE (STATE'S E:XHIBIT 2)

in which the suspected cocaine had been placed for shipment to THE TEXAS DEPT. OF

PUBLIC SAFETY CRIME LAB frOm DETECTIVE RAY YOKEL, who had placed the contraband in

THE ENVELOPE (STATE'S EXHIBIT 2) and " CHAIN OF CUSTODY WITNESSES." (DETAILED HEREIN

at pages 22, 23, and 27); REFERENCE TO SENTENCE 2, "With the benefit ... ", THE "NO

OBJECTION[ 1]" was to "THE ENVELOPE (STATE'S EXHIBIT 2) AS TO CHAIN OF CUSTODY TESTIMONY.";

REFERENCE TO SENTENCE 3, EVIDENCE WAS RECEIVED. RR V 3, P'' -

"['HE 112, L 11." WAS THE

- ----

ENVELOPE (STATE'S EXHIBIT 2) AFTER THE CHAIN OF CUSTODY TESTIMONY, THAT WAS THE

EVIDENCE RECEIVED ! DISTRICT ATTORNEY INTRODUCED EVIDENCE AND STA'!HlliNI' AT RR V 3, p 23-25 •

WRITTEN STATEMENT AND EVIDENCE ENTERED AT RR V 3, P 23 1 24 - 25. WITH "OBJECTION."

-- -

PROCEDURAL CHAIN OF CUSTODY TESTIMONY OVER "THE ENVELOPE (STATE'S EXHIBIT 2) " · •.

WITH "THE ENVELOPE RECEIVED AS EVIDENCE TO CHAIN OF CUS'IDDY," AT RR V 3, P 112. WITHOUT

. "OBJECTION TO CHAIN OF CUSTODY TESTIMONY AND 'THE ENVELOPE' PREPARATION AND ~IPT ..

PROCEDURES." 87 pages INTO TRIAL BEFORE INTRODUCTION OF EVIDENCE ?

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY:

3) Again, in APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND at page 7 of 12, the TITUS

COUNTY DISTRICT ATTORNEY'S OFFICE, in REFERENCE TO MISCHARACTERIZED SENTENCE l,

SPECIFICALLY STATING; "Subsequently, the State offered as STATE'S EXHffiiT 2 'THE

CONTROLLED SUBSTANCE,' the subject of Robinson's objection in his motion to suppress."

This is an "INTENT TO DECEIVE AND WITH THE KNOWLEDGE THIS IS TESTIMONY OF THE CHAIN OF

CUSTODY WITH 'STATE'S EXHIBIT 2 ': BEU:JG 'THE ENVELOPE' NOT 'THK. CONTROLLED SUBSTANCE '

OFFERED AND PLACED AS EVIDENCE." This: :is':·a.;: false· statement made by a DISTRICT ATTORNEY

who under oath of office is sworn to uphold the truth and dignity for that office.

Furthermore, this FALSE STATEMENT was made during and in connection with this official

proceeding and has affected the course< and '~outcome of this official proceeding, the

statement was/is clearly material to this outcome. See, TEXAS PENAL CODE (TPC) §§§. ·•·.

37~02, 37.03, and 37.04.

This has become a pattern, practice and procedure of the TITUS COUNTY DISTRICT

ATTORNEY'S OFFICE, particularly with the perjured testimony given by MT.! PLEASANT

DETECTIVE CESAR MUNOZ, WHO CAME UNDER INVESTIGATION WITH PARTNER/ OFFICER SIMON RAY

PORTER/ ON PERJURY AND DRUG CHARGSS, BO~H OF WHOM HAVE NOW BEEN CONVICTED FOR SAID

i

CHARGES. See TAB C, OFFICER SIMON PORTER FELONY ARREST FOR PERJURY.

DETECTIVE MUNOZ AND OFFICER PORTER ARE ANYTHING BUT CREDIBLE OR TRUSTWORTHY revealed

through their testimony at trial, particularly:

MUNOZ TESTIMONY: (APPELLANT'S BRIEF at page 14 and 15) "When he stopped Appellant in

his driveway, Appellant immediately exited (on the driver's side). Ibid. at RR V 3, P

44. The PASSENGERS ALSO QUICKLY EXITED on the passenger size(sic)(where the contraband

was found). Ibid. NOW COMPARE,

PORTER TESTIMONY: Detective (Sic) Porter, ... ,testified ... ,that the Appellant immediately

exited the vehicle when he stopped and began to walk away, and that Appellant was

immediately placed in handcuffs. Ibid. at RR V 3, P 91-92. He TESIFIED THAT THE VEHICLE

OCCUPANTS WERE THEN "REMOVED FROM THE CAR." Ibid. at RR V 3, P 93.

MUNOZ TESTIMONY: .•. testified that the Appellant ADMITTED OWNERSHIP OF THE COCAINE ON

VIDEO in Detective Porter's patrol car, Ibid. at RR V 3, P 50, 57-58, and THAT NO OTHER

PERSON CLAIMED CMNERSHIP, Ibid at RR V 3, P 50. MUNOZ HAD TO ADMIT i IN LIGHT OF THE

VIDEO, that Appellant INITIALLY SAID THAT "ITS (THE CONTRABAND) NOT MINE." Ibid. RR V3t P75.

44

if

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED. IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#3 continued)

FURTHERMORE as to the statement, •• "NO arHER PERSON CLAIMED CMNERSHIP. "(OF CONTRABAND):

MUNOZ WAS REQUIRED TO find the portion o:E the video wherein Detective Porter( (\>~ho

transported the Appellant from the arrest in a patrol car) that "SHE SAID, 'NO, IT'S

MINE." Ibid. RR V 3, P 75. The ONLY FEMALE AT THE SCENE ••• WHO EXITED THE VEHICLE ON THE

SIDE WHERE THE COCAINE WAS FOUND. Id. ·

PORTER TESTIMONY; He acknowledged that he told Appellant that MS WILLIAMS DID, IN FACT,

CLAIM-OWNERSHIP. Ibid~ RR V 3, P ·101.

LAKISHA WILLIAMS TESTIMONY: She told the officers NOT TO TAKE THE' APPELLANT TO JAIL AND,

INSTEAD, "TAKE ME. IT'S (THE CONTRABAND) MINE." Ibid. RR V3, P 127.

OFFICER NICHOLS TESTIMONY: He NEVER.HEARD THE, APPELLANT STATE THE aw.mABAND BELONGED

TO HIM. Ibid. RR V 3, P 157. He WAS AWARE THAT MS WILLIAMS CLAIMED THAT THE CONTRABAND

BELONGED TO HER. Ibid. RR V 3, P 158.

It is made clear by the testimonies of; OFFICER SIMON RAY PORTER; OFFICER NICHOLS;

and LAKISHA WILLIAMS; that at the scene of arrest LAKISHA WILLIAMS had •ADMI~~

OON'ERSHIP OF THE COCAINE," therefore 1 MUNOZ 'S. TESTIMONY

. ·.;

"THAT· NO OTHER PERSON CLAIMED

OONERSHIP," was m:>de with the knowledsJe: of the; statements meaning as an intentional

deception under oath, during and in connecqon with the official proceeding of the

trial, clearly the statement was material and could have affected the course and/or

outcome of the trial before the jury. TPC §§§ 37.02, 37.03, 37.04. PERJURY I .MATERIALITY.

While MUNOZ retracted his false statement before the completion of his testimony

it was not done until it became manifest that the falsity of the statement was exposed

by way of the video (STATE'S EXHIBIT 3), during and in connection with the official

proceeding of trial before jury, ~nder oath: TPC § 37.05, RETRACTION.

This was but a continuation of false testimony in the official proceeding by MUNOZ

that began at the SUPPRESSION HEARING in which MUNOZ was the lone witness, SPECIFICALLY:

On SEPTEMBER 15, 2009, the TRIAL COURT held a SUPPRESSION HEARING. RR V 2, P 1.

One witness tesified -CESAR MUNOZ. RR V2, P 1 - 41. Officer Munoz testified, at the

hearing on the motion to suppress, he observed the vehicle ROBINSON was driving "failed

to make a --- use THEIR TURN SIGNAL at the time when IT TURNED ONTO MARGARET FROM

NINTH." (DISTRICT ATTORNEY PREPARATORY STATEMENT) (SIXTH COURT OF APPEALS, ORIGINAL

MEMORANDUM OPINION, .No. 06-09-00225-CR, at page 6, Id.).

45

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#3 continued)

At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ described

as incorrect. When asked, "DOES NINTH STREET CURVE INTO MARGARET DRIVE ?" MUNOZ RESPONDED,

"YES IT DOES, but the way that indicates is incorrect'to the actual way_the street is •.. "

According to MUNOZ, the defense exhibit was incorrect, "[b]ecuase in [DEFENSE EXHIBIT 1],

East Eighth does not run into MARGARET, and then you've got East Ninth, and they run

parallel to each other." SIXTH COURT OF APPEALS, supra, Id. at page 10-ll.

The record also contains EVIDENCE that the TRAFFIC FROM NINTH STREET 'DOES MERGE

ONTO' MARGARET DRIVE. The defense introduced a map THAT SUGGESTS NINTH STREET 'MERGES'

WITH MARGARET DRIVE. The defense exhibit appears to be photocopied from a commercial

atlas. supra, at 10, Id.

At TRIAL, MUNOZ testified Robinson FAILED TO SIGNAL A TURN at the intersection of

NINTH AND MARGARET in Mount Pleasant, Texas. MUNOZ ADMITTED EAST NINTH STREET and

MARGARET DRIVE MERGE AT THEIR INTERSECTION. supra, at 10, Id.

While the STATE PROSECUTING ATTORNEY in the STATE'S PETITION FOR DISCRETIONARY

'

REVIEW (PDR) makes their attempt to clean up the PERJURED STATEMENT OF MUNOZ AS TO THE

USE OF THE TERM "t'ERGE" SPECIFICALLY STATING:

"TERMS USED BY THE WITNESSES DO NOT APPEAR 'ID BE USED IN ANY TECHNICAL SENSE. FOR

EXAMPLE, THERE IS NO INDICATION THAT THE OFFICER MEANT 'MERGE' AS 'lUIS CUJRT USED IT

IN MAHAFFEY." PDR AT 8, f.n. 3, ·rd. see also TAB 2, RELATOR'S SUPPLEMENTAL DAIGRAM OF

NINTH STREET AND MARGARET DRIVE CONFIGURATION, Id.

HOOEVER, THE SIXTH CDURT OF. APPEALS' USE OF THE TERM "MERGEn DID APPEAR TO BE IN A

TECHNICAL SENSE AND AS AN INDICATION THAT THE OFFICER MEANT "MERGEn AS THE COURT OF

CRIMINAL APPEALS USED IT IN MAHAFFEY. ESPECIALLY, when it continues from Slip. Op. 10,

stating; The defense introduced a map showing that Ninth and Margaret are

"indistinguishable from a single road except for the assigned names." Slip. Op. at 16.

Officer Munoz did not challenge the map's depiction of the intersection of Ninth and

Margaret. Slip. Op. at 16. Appellant's girlfriend confirmed that Ninth CURVES INTO

Margaret without a stop or yield sign. Slip. Op. at 11. PDR at 8, Id.

Even THE STATE PROSECUTING ATTORNEY in the PDR concedes, "In short, the physical

description of how Ninth and Margaret MEET W~S DEPICTED IN A MAP THAT WAS CORROBORATED

BY AT LEAST ONE WITNESS "AND CONTRADICTED BY NONE. '" PDR at 8, Id.

The TITUS COUNTY DISTRICT ATTORNEY is in direct violation of DUE PROCESS CLAUSE of

the 14th Amendment, Prosecutorial Misconduct, k,nowtLiDt.~otional .us~ of. fq_lse.,_sta tements ·

46

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH .COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#3 continued)

When the STATE PROSECUTING ATTORNEY'S OFFICE, in AUSTIN, TEXAS, filed a PDR on

behalf of DAVID COLLEY, TITUS COUNTY ASSISTANT DISTRICT ATTORNEY of MOUNT PLEASANT,

TEXAS, it was to be for. RECUSAL PURPOSES explained herein at page 42 (A)(l)(b). HOWEVER,

the STATE PROSECUTING ATTORNEY by filing the PDR then was to become the ATTORNEY FOR

THE TITUS COUNTY DISTRICT ATTORNEY OFFICE with ANY FUTURE FILINGS to be performed by

STATE PROSECUTING ATTORNEY OFFICE, in AUSTIN, arid ANYl FUTURE FILINGS BY THE '"fJ[TUS COUNTY

DISTRICT ATI'ORNEY'S OFFICE WAS TO BE CONSIDERED "HYBRID - REPRESEN"l"ATION, as explained

herein at page 42 (A)(l)(a). See PDR, APPEAL FROM TITUS COUNTY, PD-0238-ll, No. 06-09-

0025-CR, February 22, 2011, COURT OF CRIMINAL APPEALS filied MAY 03, 2011; see also,

APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, filed NOVEMBER 19, 2012.

FURTHERMORE, the TITUS COUNTY DISTRICT ATTORNEY has with thel: INTENT TO DECEIVE AND

KNOWLEDGE OF STATEMENTS FALSITY GIVEN UNDER OATH MADE DURING AND IN CONNECTION WITH AN

OFFICIAL PROCEEDING, has contrived a conviction through the pretense of a trial which

in truth was used as a means to deprive this RELATOR OF LIBERTY through the said

deception of both the trial court and jury by said presentation of testimony known to

be perjured by OFFICER'S KNOWN TO BE UNDER INVESTIGATION, INDICTMENT, ARREST, WITH

CONVICTIONS JUST DAYS BEFORE FILING APPELLEE'S BRIEF with the SIXTH COURT OF APPEALS,

AUGUST 26, 2010, COMPARE TO ATTACHMENT TAB 3, OFFICER ARRESTED ON FELONY PERJURY

CHARGE, with RELATOR .UNABLE: to obtain CESAR MUNOZ'S ARREST FOR F.ELONY DRUG CHARGES.

With the TITUS COUNTY DISTRICT ATTORNEY'S known use of perjured testimony for the

configuration of the assumed intersection of NINTH STREET arid MARGARET DRIVE (which

determined if a signal was necessary) by two officers, particularly, DETECTIVE CESAR

MUNOZ and OFFICER SIMON RAY PORTER, who were under investigation, indicted, arrested,

and convicted of felony perjury and drug charges is EXCULPATORY EVIDENCE THE TITUS

COUNTY DISTRICT ATTORNEY'S OFFICE HAD A DUTY TO DISCLOSE TO THE DEFENSE FOR WHICH THE

STANDARD OF MATERIALITY GAVE RISE TOSAID DUTY. Those determrunations were very relevant

on whether the officer could have reasonably believed such a signal was required and ~:

the STATE WAS RELIEVED of establishing that the detention was reasonable. See OURSBOURN

v. STA~E, 288 SW 3d 65, 70 (Tex. App. -HOUSTON [lst Dist.] 2009, no pet.)(finding

egregious harm because State was relieved of burden of establishing voluntariness of

statement). There is a reasonable likelihood that this false testimony could have

effected the judgement of the jury. AGURS, 427 US at 103, 96 S CT at 2397. The jury

47

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#3 continued)

was unaware that any evidence obtained as a result of an illegal detention could not

be considered for any purpose. See OR~GINAL SIXTH COURT OF APPELAS, MEMORANDUM

OPINION, No. 06-09-00225-CR, at page 21; See herein throughout.

AUTHORITIES

Evidence tainted by unlawful police action is traditionally barred as fruit of

the poisonous tree. See SEGURA v UNITED STATES, 468 US 769, 804 (1984); WONG SUN v

UNITED STATES, 468 US 471 (1963). Assuming the detention was illegal, there is a

clear causal connection between the detention and the discovery of the drugs. The

State does not allege that the discovery of the drugs or Robinson's subsequent

confession was sufficiently attenuated from the alleged illegal detention to purge

the taint of the alleged illegal detention. BROWN v ILLINIOS, 422 US 590 (1975);

BELL v STATE, 724 SW 2d 780 (Tex. Crim. App. 1986). ORIGINAL SIXTH COURT OF APPEALS,

supra, at 21, Id.

In U.S. v AGURS, 427 US 97, 96 S Ct 2392, 49 LEd 2d 342 (1976) the SUPREME COURT

was called to determine whether THE PROSECUTOR HAS A DUTY in absense of specific request

TO DISCLOSE EXCULPATORY EVIDENCE TO THE DEFENSE, and if so WHAT STANDARD OF MATERIALITY

GIVES RISE TO THAT DUTY. AGURS, 427 US at 107, 96 S Ct at 2399. To resolve the issue

the COURT RECOGNIZED 3 STANDARDS OF MATERIALITY. RELATOR'S INTEREST LIES IN ls1t STANDARD.

FIRST, in the case of a PROSECUTOR'S KNOWING USE OF PERJURED TESTIMONY, THE CONVICTION

WII.L BE REVERSED 11

IF THERE IS ANY· REASONABLE LIKELIHOOD THAT THE FAlLSE 'fEST:[K)NY aJULD

HAVE EFFECTED THE JUDGEMENT OF THE JURY. 11

AGURS, 427 US at 103, 96 S Ct at 2397. RELATOR

has revealed this PERJURED I FALSE TESTIMONY throughout the record available, and shown

herein throughout.

The holding in BRADY requires disclosure only of evidence that is both favorable

to the accused and material either to guilt or to punishment. BAGLEY, 478 US at 674,

105 s Ct 3379; BRADY, 373 us I 83 s Ct

In order to invoke the BRADY DOCTRINE the accused m~st present evidence that: 1)

the PROSECUTION SUPPRESSED OR WITHHELD EVIDENCE; 2) this EVIDENCE ~ HAVE. BEEN

FAVORABLE 'ID THE ACCUSED; and, 3) this EVIDENCE WOULD HAWE BEEN MATERIAL ID THE ACCUSED'S

DEFENSE. MOORE v ILL., 408 US 786, 794~95, 92 S Ct 2562, 2567-68, 33 LEd 2d 706 (1972);

MULLEN v STATE, 722 SW 2d 808, 815. WHILE THE ADMISSION OF PREVIOUSLY UNDISCLOSED

EVIDENCE IS REVERSIBLE ERROR.

48

IV

THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA

THE SIXTH COURT OF APPEALS ERRED IN I'I'S ANALYSIS CONCERNING:

A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S

OFFICE, PRECISELY: (#3 continued)

This ruling is an extention of MOONEY v HOLOHAN, 294 US 103, 112, 55 S Ct 340, 342, 79

L Ed 791~ where the (SUPREME) COURT RULED ON WHAT NON - DISCLOSURE BY A PROSECUTOR

VIOLATES DUE PROCESS.

It is a requirement that cannot be deemed to be satisfied by mere notice and hearing

if a STATE HAS CONTRIVED A CONVICTION THROUGH THE PRETENSE OF A TRIAL WHICH IN TRUTH

IS USED AS A MEANS OF DEPRIVING A DEFENDANT OF LIBERTY THROUGH DELIBERA~ DECEPTION OF

COURT AND JURY BY THE PRESENTATION OF TESTIMONY KNOON TO BE PERJURED. Such a contrivance

by A STATE TO PROCURE A CONVICTION AND IMPRISONMENT IS AS INCONSIS'TE:NT W['.m IRUDIMENJTARY

DEMANDS OF JUSTICE AS IS THE OBTAINING OF A LIKE RESULT BY I~MIDATION.

In PYLE v KANSAS, 317 US 213, 215-16, 63 S Ct 177, 178, 87 LEd 214 THE U.S. SUPREME

COURT phrased THE RULE IN BROADER TERMS:

"PETITIONER'S PAPERS ARE INEXPERTLY DRAWN, BUT THEY 00 SET FORTH ALJL.EGATIONS 'l'lB!AT HIS

IMPRISONMENT RESULTED FROM PERJURED TESTIMONY, KNOW:mGLY USED BY STATE AUl'BORITIES 'I'O

OBTAIN HIS CONVICTION AND FRCl'1 THE DELIBERATE SUPPRESSION BY THOSE SAME AUTOORITIES OF

EVIDENCE FAVORABLE TO HIM. These allegations SUFFICIENTLY CHARGE A DEPRIVATION OF

RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION AND IF PROVEN WOULD Efil!TITLE PET.rTIONER

TO RELEASE FROM HIS PRESENT crJSTODY." MOONEY v HOLOHAN, 294 US 103, 55 S Ct 340, 79 L

Ed 791.

[373 US 87] The 3rd Circuit in the BALDI case construed that statement in PYLE v

KANSAS to MEAN:THAT THE 'SUPPRESSION EVIDENCE FAVORABLE' ·TO THE ACffiSED WAS ITSELF

SUFFICIENT TO AMOUNT TO A DENIAL OF DUE PROCESS.

In NAPUE v ILL., 360 US 263, 269, 74 S Ct 1173, LEd 2d 1217, THE U.S. SUPREME

COURT extended the test·formulated in MOONEY v HOLOHAN.when they said: "The same result

obtains WHEN THE STATE, ALTHOUGH NCJI' SOLICITING FALSE EVIDENCE, AL~S I"l' TO BE

UNCORRECTED WHEN IT APPEARS." and see/ ALCOSTA v TEXAS, 355 US 28, 78 S Ct 103, 2 LEd

2d 9; WILDE v W¥0MING,362 US 607, 80S Ct 900, 4 LEd 2d 985. Cf. DURLEY v MAYO, 351

US 277, 285, 76 S Ct 806, 811, 100 LEd 1178 [dissenting opin.].

v

The SIXTH COUR'I' OF APPEALS ERRED IN CONCLUDING that ROBINSON FAILED TO. PRESERVE FOR

APPEAL THE ISSUE OF WHETHER THE CONTRABAND SEIZED IN THE SEARCH WAS ADMISSIBLE; when

THE RECORD REVEALS WRITTEN STATEMENT AND EVIDENCE, DESPITE DEFENSE'S OBJECTION (HEARSAY)

PLACED AS EVIDENCE, THEN "THE ENVELOPE"[STATE'S EXHIBIT 2] AND A DVD[STATE'S EXHIBIT 3]

ARE ADMITTED WITHOUT OBJECTION. SEE herein at pages 7-8, Id.

49

v

(CONTINUED)

FUR'I'HERroRE, THE "NO OBJECTION" REFERENCED FOR THIS CONCLUSION BY THE CX>URT OF

APPEALS IS IN RELATION ID THE "CHAIN OF CUSTODY, NATURE OF THE CXN.mABAND, AND THE

WEIGHT OF CX>NTRABAND," IN WHICH THERE WAS "NO OBJECTION." See herein at pages 7-8, Id.

The 76th TRIAL COURT ERRED "ABUSING ITS DISCRETION" IN REFUSAL TO RE-OPEN SUPPRESSION

HEARING, ADDRESS CREDIBILITY OF OFFICER MUNOZ TESTIMONY, ADDRESS AND APPLY LAW TO FACT

AS 'ID WHETHER RELA'IDR WAS 'ID APPLY TURN SIGNAL AT THE MEETING OF THE TWO ROADWAYS,

RELEASING CONTRACTUALLY HIRED APPELLATE ATTORNEY THEREBY FORCING APPOINTED APPELLATE

ATTORNEY WHO DID ABSOLUTELY NOTHING AS TO REPRESENTATION CONSTITUTIONALLY GUARANTEED,

AND REFUSAL 'ID ACKNO\tiJLEDGE 11.07 APPLICATION AS TO THE INEFFECTIVENESS OF COUNSEL

EXPRESSED HEREIN AND AS RELATED TO 11.07 APPLICATION.

The TITUS COUNTY DISTRICT ATTORNEY'S OFFICE has "ABUSED ITS DISCRETION" REFUSING TO

ANSWER 11.07 APPLICATION, COMMITTED "PROSECUTORIAL MISCONDUCT TO MALICIOUSLY PROSECUTE"

RELATOR THROUGH PERJURED STATEMENTS OF OFFICER'S WHO WERE INVESTIGATED, INDICTED, ARRESTED,

\

AND CONVICTED OF FELONY CHARGES FOR PERJURY AND DRUGS, KNOWING STATEMENTS IN REFERENCE

TO THE CONFIGURATION OF THE DISPUTED ROADWAYS IS FALSE, ESPECIALLY AS RESIDENTS OF MT.

PLEASANT, TEXAS, THEN TO CONTINUE WITH A MISREPRESENTATION OF AN 'IMPLIED "NO OBJECTION"

TO EVIDENCE WHEN STATED IN REFERENCE TO A."CHAIN OF CUSTODY TESTIMONY."

CONCLUSION AND PRAYER

For the foregoing reasons, this COURT should GRANT RELATOR'S ORIGINAL PETITION FOR

WRIT OF MANDAMUS. This COURT should issue said writ ORDERING THE SIXTH COURT OF APPEALS

to WITHDRAW~ THE PANEL'S OPINION DATED DECEMBER 13, 2012, and ISSUE A NEW OPINION

REVERSING RELATOR'S CONVICTION AND ORDERING HIS ACQUITTAL.

PRAYER

WHEREFORE, RELATOR PRAYS, based on the foregoing arguments , as well as those

arguments asserted in RELATOR'S BRIEF ON APPEAL, this COURT SHOULD GRANT RELATOR'S

ORIGINAL PETITION FOR WRIT OF MANDAMUS. THIS COURT should issue a writ ORDERING THE

SIXTH COURT OF APPEALS AT TEXARKANA to REVERSE THE JUDGEMENT AND ORDERING TIMOTHY LEE

ROBINSON'S ACQUITTAL AND IMMEDIATE RELEASE FROM TDCJ-ID POWLEDGE UNIT, located at 1400

FM 3452, ANDERSON COUNTY, PALESTINE, TEXAS.

RESPECTFULLY SUBMITTED,

:;tM~~B%ToW1;61~n1~''

POWLEDGE UNIT T/C 0 - 22

1400 FM 3452

PALESTINE, TEXAS 75803 - 2350

50

51

A P P E N D I X

T A B 1

C I T Y C 0 D E S

0 F

M 0 U N T P L E A S A N ~~ T E X A S

C 0 D E 0 F 0 R D I N A N C E S

S E C T I 0 N S

7 0 0 l a n d 7 l 0 3 0

H I G H L I G H T I N G I N T E R S E C T· I 0 N

AND

(S T 0 P P I N G A N D T U R N I N G S I G N A L S)

EVEN THOUGH THE STATE NOW CONCEDES THAT, "AT TRIAL, MUNOZ TESTIFIED THAT

EAST NINTH STREET MERGES, OR CONTINUES, INTO MARGARET DRIVE AT THEIR INTERSECTION."

(APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND)

Page I of I

c-JcJ..

Cr'fY OF MOUNT PLEASANT, TEXAS

CODE OF ORDINANCES

2009 S-6 Supplement contains:

Local legislation current through Ord. 2009-15, passed 10-6-09

)

Published by:

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Page I of3

5:J

GEN-ERAL PROVISIONS

§ 70.01 DEFINITIONS.

For the purpose of this title, the following definitions shall apply unless the context clearly indicates

or requires a different meaning. .

ALL TERRAIN VEHICLE. A motor vehicle having a saddle for the use of the rider, designed to

propel itself with three or more tires in contact with the ground, designed by the manufacturer for off-

highway use.

ALLEY. A public way in the city extending either partly or through any city block in the rear of city

lots and in a direction generally from avenue to avenue not more than 20 feet in width and capable of

being traversed by a vehicle.

AUTHORIZED EMERGENCY VEHICLE. Vehicles ofthe Fire Department (fire patrol), police

vehicles, public and private ambulances for which permits have been issued by the State Board of

Health, emergency vehicles of city departments or public service corporations as are designated or

authorized by the City Council and private vehicles operated by volunteer firefighters while answering a

fire alarm.

BUSINESS DISTRICT. The territory contiguous to and including a roadway when, within any 600

feet along such roadway, there are buildings in use for business or industrial purposes which occupy 300

feet of frontage on one side or_JOO feet collectively on both sides ofthe roadway.

BUS. A commercial vehicle can·ying passengers for hire and operating over and along a fixed route.

BUS STOP. A section of the roadway along the edge thereof, authorized by order of the City

Council, marked by signs reading "bus stop" as a place for the sole use and convenience of the general

public to board and depart from any bus.

CROSSWALK. That part of a roadway at any intersection included within the connection ofthe

lateral lines of the sidewalks on opposite sides of the street, whether marked or not, measured from the

curbs or in the absence of curbs, from the edges ofthe traversable roadway. The word CROSSWALK

also includes any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian

crossing by lines or other markings on the surface.

DRIVEWAY, PRIVATE. Any entrance or exit over the sidewalk or sidewalk area.ofany street

affording a means of ingress or egress for vehicles to or from any private property or the entrance or exit

of any private garage into or from any alley.

DRIVEWAY, PUBLIC. Any entrance or exit over the sidewalk or sidewalk area of any street

affording a means of ingress or egress for vehicles to or from any public property.

DRIVER. That person who drives or is in actual physical control of the movements of a vehicle.

DIGGING OUT. The practice of starting any motor vehicle from a standing position by applying a

sudden burst of power, recognized by spinning rear wheels and noise of tires on the surface of the

roadway.

http:/ /www.amlegal.com/nxt/gateway .dli/T exas/mtpleasant/titlevi itrafficcode/chapter70gen. .. 8/11/201 0

Page 2 of3

Jf

JN.ERSECTION. The area embraced within the prolongation or connection of the lateral curb lines,

or if none, then the lateral boundary lines of the roadways of two streets which join one another at, qr

approximately at, right angles or the area within which vehicles traveling upon different streets joining

at any other angle may come in conflict. Where a street includes two roadways, 30 feet or more apart,

then every crossing of each roadway of such divided stre~t by an intersecting street shall be regarded as

a separate intersection. In the event such intersecting street also includes two roadways 30 feet or more

apart, then every crossing of two roadways of such streets shall be regarded as a separate intersection.

LANED ROADWAY. A roadway which is divided into two or more clearly marked lanes for

vehicular traffic.

LIMITED-ACCESS OR CONTROL-ACCESS HIGHWAY. E~ery

This text is long and has been trimmed here. Open the source document for the complete record.