in Re Robert Lee Brown

February 13, 2015

03-14-00681-CR

Cause No. 002368-c

Robert.Lee.Brown In The Third District Court

Applicant § Of Appeals

§

V.

§ OF

§

The State Of Texas

§ Austin/ Texas

Respondent §

Applicant's Memorandum In Support For DNA ,/received\

Testing Under Article 64.01 (a-1) and (b) FEB 1 3 2015

Tex. Code Crim. Froc.

THIRD COURT OF APPEALS

JEFFREY D. KYiF

To The Honorable Judge Of Said Court:

Comes Now, Robert.Lee.Brown, Applicant Pro-Se,in the above

3tyled and numbered cause do hereby file this Brief in support

for DMA Testing and memorandum in Law of support in accordance

with Article 64.01 (a-1) and (b) Tex. Code Crim. Proc. of Texas

Code Of Criminal Frocedure and would like to shuu the Court as

Jurisdiction

The Honorable Court has complete jurisdiction in accordance

with Article 64.01 (a-1) and (b) of the Texas Code of Criminal

Procedure.

Statement Of Facts

On May 10,2000, the applicant was sentenced and convicted for

aggravated robbery in whicn he was allegedly to have committed on

the dace of Sepceinber 29 or 30th of 1999. He then proceeded to

tight his case via direct appeal which was filed on January 29,2000

and it was affirmed on July 26,2000. Since that time the Applicant.

has taken his case unto the U.S. Supreme Court attacking hio conviction

with only the direct appeal that was filed or. his case and the doors

were closed to him the entire way. Finally, in January of 2009 the

applicant was able to get hold cf his Court Records and found out

there was more errors that should have been litigated via Habeas

Corpus. This is the third attempc to exhaust his remedies based on

actual innocence. This memorandum in Law of support has the necessary

argument and aucnorit.es that need to be litigated and the applicant

is also hope that actual innocence was never argued in his previous

writ because he did nun have the proper evidence that the records

1

reveals and therefore would like this opportunity to exhaust these

arguemeric before they are presented to the Federal Court.

The District Clerk of Travis County did therefore also deliberatley

withheld his previous application 0023-A for a five month period

before it was filed and that action caused the time limits to run

out to where the t'ederal Court time barred him from filing his Federal

writ. Even though the applicant realizes that this application and

brief in support can be consLrued as a successive application but the

motion for leave is also filed to ask the permission of this Honorable

Court m order to prove actuai innocence and deceptive police tactics

and prejudice on behalf of the prosecution in charge of the case and

the misconduct of the tribunal for then allowing such miscarriage cf

justice to i_ake place. It is the duty of the Trial Court to seek the

truth and to right any wrongs that have taker, place in the judicial

system and the applicant believes that this application and brief in

support will bring the needed attention to warrant an evidentiary

hearing in order for justice to be done.

Discussion

(In Darrell V. State, 2013 Tx. App. Lx.13237)

An order denying DNA Testing is an "Appealable order" under rule

25.2(a) (2). Guitierrez V. State,307 Sw3d 318, 321 (Tx. Cr. App.2010)

However, the decision to deny appointed counsel is not . Id at

323 ("Such an=appeal-is prematurely ^motion for appointed Counsel

is a preliminary matter that precedes the initiation of Chapter 64

proceedings.")

iDrnun #

Robert ."LeeJBrown 1 Q070 1VI

927914 ' -*

Eastham Unit

2665 Prison Rd. #1

LoveLady, Texas

75851

PRAYER

WhereforeiPremises Considered,Applicant humbly prays that

this Honorable Court will grant the Motion For Successive Petition

and allow him the one and only opportunity to prove that he has

the Evidence in this application and in the Memorandum to show

that he has standing to be granted relief and that a Evidentiary

Hearing is the only way that he can proceed to show his innocence.

Respectfully Submitted,

ifo£e@t^£i£'>^6^rT#lrflli

TDCJ—CID, Applicant Pro—Se

Eastham Unit

2665 Prison Road #1

Lovelady,Texas 75851

CERTIFICATE OF SERVICE

I,Robert Lee Brown/Applicant Pro—Se,hereby certify that the

forgoing information is true and correct,and a copy is being mailed

to the District Court Clerk of Travis County at P.O.Box 1748,

Austin ,Tx.76767 . Signed on this 7 day of February ,2015.

Respectfully Submitted;

Robert Lee Brown #927915

Applicant Pro—Se—_

TDCJ—CID

Eastham Unit

2665 Prison Road #1

Lovelady,Texas 75851

Cause no. 00-2368-c

Ex Parte § IN THE COURT

§

§ OF

§

Robert Lee Brown § AUSTIN, TEXAS

APPLICANT'S MOTION FOR LEAVE OF COURT

TO FILE SUCCESSIVE APPLICATION FOR AN

APPLICATION FOR WRIT OF HABEAS CORPUS IN

ACCORDANCE WITH ARTICLE 11.07 §4(A)(1(T)

OF THE TEXAS CODE OF CRIMINAL PROCEDURE.

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, Robert Lee Brown herein known as Applicant, do hereby file

this Motion For Leave to File Successive Application for an Application for

Writ of Habeas Corpus in Accordance with Article 11.07 §4(a)(l)(2) of the

Texas Code of Criminal Procedure and hereby would like to show the Court

as follows:

JURISDICTION

This Court holds ultimate jurisdiction in accordance with Art. 11.07 of

T.C.C.P.

CONFINEMENT

This Applicant is being held illegally by Nathaniel Quarterman, Director

of the Texas Department of Criminal Justice, Eastham Unit, Institutional

Division, Lovelady, Texas.

ARGUMENT FOR SUCCESSIVE APPLICATION

The Texas Code of Criminal Procedure Article 11.07 §4(a)(l)(2) state

that "If a subsequent application for Writ of Habeas Corpus is filed after

final dispostition of an initial application challenging the same conviction,

a court may not consider the merits of or grant relief based on the subsequent

application unless application contains sufficient specific facts that

establishes the following:

(1) the current claims and issues have not been and could not have been

/

presented previously in anoriginal application or in a previously considered

application filed under this article becuase the factual or legal basis for

the claim was unavailable on the date applicant filed the previous application;

or

(2) by a proponderence of the evidence, but for violation of the United

States Constitution no rational juror could have found the applicant guilty

beyond a reasonable doubt.

When the first application was filed the Applicant had no scientific

knowledge of working law and only had the appellate brief provided him by

his appellate attorney who only argued one issue about denying the Motion

for Suppression of evidence presented by the State.

Brown requested many times through coresspondence and having his family

also contact his attorney on appeal about giving him a copy of his Clerk's

Records and Court Reporter's records and Exhibits presented and she refused

any and all attempts at contact.

The record clearly shows that his trial and appellate counsel were court

appointed and he did not have the funds to retain counsel or purchase the

records until January of this Year of ,2009.

Brown avers that he is not educated in the technical science of the

law and neither does he have assistance from any trained, skilled attorney

or the many accoutrements available to attorneys for free-world pro-se litigant

in order to help him to present all errors that this future application will

have included within that needs to be litigated to satisfy the exhaustion

requirement before these errors are presented to the Federal District Court.

Therefore, Brown contends that he should not be held to the same Strinqent

standards of pleading or research as an educated attorney in the preperation

and presentation of his Pro-Se application for writ of Habeas Corpus. See

Haines v. Kerner, 92 S.Ct. 594, 595 (1972); Pete v. Metcalf, 8 F.3d 217 (5th

Cir. 1993).

ERRORS PRESENTED IN ORIGINAL HABEAS

Defendant's Motion to Supress In-Court identification by victim was denied.

The victim said his attacker was between 18-20 years old, Applicant was 32

years of age.

Illegal Sentence, void indictment.

Denial of effective assistance of counsel,

These errors were not substantiated by any evidence from the record

2.

and the original application was dismissed without prejudice and Applicant

believes that now that he has a complete copy of his trial records he can

present the following errors and show by the proponderence of the evidence

that a reasonable juror would not have found him guilty beyond a reasonable

doubt.

ERRORS APPLICANT WANTS TO PRESENT

Perjured Testimony of Sonja Lee Holder and Pete Arrevalo

The evidence was legally and factually insufficient to support the conviction.

Actual Innocence

Police fabrication of out-of-court photo line up identification.

Prosecutorial Misconduct.

Conspiratorial actions of the District Clerk of taking 5\ months to file

original application.

Ineffective Assistance of Counsel

(a) failed to object to accomplice witness testimony.

(b) failed to develop a defense.

(c) failed to object to perjured testimony

(d) failed to request for balistics, fingerprint, DNA experts to test the

State's exhibit 22.

(e) failed to request any instructions on any defensive issues raised by the

evidence and testimony.

(f) failed to properly preserve error.

(g) Failed to investigate or interview any of the State's witnesses,

(h) failed to give adequate representation.

Ineffective Assistance of Appellate Counsel

(a) failed to present all the potential errors that could give the Applicant

a favorable chance at relief.

CONCLUSION

Brown avers and contends that this successive writ will not be considered

to be an abuse of writ if he can show cause for raising a new point of error

after one writ of Habeas Corpus has already been filed. Russell v. Collins,

944 F.2d 202, 205 (5th Cir. 1991). Good Cause exists for hearing successive

application of Writ of Habeas Corpus where failure of counsel to object to

admission of testimony at trial, "is not waiver of error" because constitutional

defect has not been identified after trial; when such defect is identified

after trial, and its status is applied retroactively, applicant "should"

be allowed to raise issues in his subsequent application. Ex Parte Baker,

879 S.W.2d 889, 892-93 (Tex.Crim.App.1994).

Texas law requires that, before a conviction may rest upon an accomplice

witness's testimony, that testimony must be corroborated by independent

3.

evidence tending to connect the accused with the crime. This accomplice witness

rule creates a statutorily imposed review and is not derived from federal

or state constitutional principles that define the legal anf factual standards

of sufficiency.

To determine the sufficiency of the corroboration, regardless of whether

an objection was made, the Court must eliminate the testimony of the accomplice

witness and examine the testimony of the other witness who did confess to

trading sexual favors for drugs and money with a prostitute since she was

the age of fifteen. See Taylor v. State, 7 S.W.3d 732, 737 (Tex.App.-Houston[14]

dist. 1999)j Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007).

The underlying premise is that such a witness is a "discredited witness"

and that "the testimony of a accomplice witness is also to be scrutinized

not only because of any interest she might have, but because her testimony

is from a corrupt source. Beathard v. State, 767 S.W.2d 423, 429 (Tex.Crim.App.

1989); Simmons v. State, 205 S.W.3d 65, 72 (Tex.App.-Fort Worth 2006).

In determining the strenqth of the particular item of non-accomplice

evidence, we must examine:

(1) its reliability or believability, and

(2) the strength of its tendency to connect the Applicant to the crime.

Jones v. State, 195 S.W.3d 279, 289-90 (Tex.App.-Fort Worth 2006).

The Supreme Court has clarified the abuse of the writ. The State has

the burden to plead abuse. This burden is satisfied if the State notes the

Applicant's prior writ history with clarity and particularity, identifies

claims which appear for the first time in the later application, and alleges

abuse by the Applicant. But, for the Applicant to disporve abuse of writ

he must show why the claim was not raised in the first application, this

would include claims that he was impeded by some objective factor external

to his defense, such as the availability of his records which is a reasonable

unavailability of the factual basis of the claims. The applicant will show

that he was actually prejudiced by the errors of which he complains. And

he avers that if he cannot satisfy both the cause and prejudice requirement

is not entitled to a evidentiary hearing to develop the claim. Even so,

he hopes that the Court will excuse his failure to timely raise the claim

if he can show that a fundamental miscarriage of justice "the conviction

of a innocent person" will result by failure to entertain the claim.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Brown humbly prays that this Honorable Court

will consider his argument in this Motion and grant it so that he can show that

there has been a miscarriage, of justice ofbeinq an innocent person incarcerated

by false and misleading testimony, prosecutorial misconduct, judicial abuse of

discretion, etc. These actions created an actual and substantive disadvantage

to the Applicant.

Signed and executed on this £ ff day of /l/ftl u / 2009.

tfully Submitted,

Robert

Applicant Pro-Se

TDCJ-CID

Eastham Unit

2665 Prison Road #1

Lovelady, Texas 75851

CERTIFICATE OF SERVICE

I, Robert Lee Brown, Applicant Pro-Se, do hereby certify that the foregoing

is true and correct and a copy is being mailed to the District Clerk Amalia

Rodrigues-Mendoza of Travis County, Texas at P.O. Box 1748, Austin, Texas 78767.

Signed and executed on this 2.8 day of /n6Lu 2009.

Brown #927914

Applicant Pro-Se

5.

Case No.

(The Clerk of the convicting court will fill this line in.)

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: Robert Lee Brown

DATE OF BIRTH: November 13, 1967

PLACE OF CONFINEMENT: R^t-ham Tinir

TDCJ-CID NUMBER: 927914 SID NUMBER: 03447774

(1) This application concerns (check all that apply):

53 a conviction a parole

53 a sentence • mandatory supervision

a time credit a out-of-time appeal or petition for

discretionary review

(2) What district court entered the judgment of the conviction you want relief from?

(Include the court number and county.)

167th District Court, Travis County, Austin, Texas

(3) What was the case number in the trial court?

002368

(4) What was the name of the trial judge?

Honorable Michael Lynch

Revised: March 5. 2007

Misc. Docket No. 06-103 Page 2 of 13 ATC 1! .07 (Rev. 03-05-07)

(5) Were you represented by counsel? If yes, provide the attorney's name:

Hon. Charles Hinneman

(6) What was the date that the judgment was entered?

May 10, 2000

(7) For what offense were you convicted and what was the sentence?

Aggravated Robbery w/Deadly Weapon

(8) If you were sentenced on more than one count of an indictment in the same court at

the same time, what counts were you convicted of and what was the sentence in each

count?

N/A

(9) What was the plea you entered? (Check one.)

• guilty-open plea o guilty-plea bargain

ex not guilty • nolo contendere/no contest

If you entered different pleas to counts in a multi-count indictment, please explain:

N/A

(10) What kind of trial did you have?

a no jury a jury for guilt and punishment

cs jury for guilt, judge for punishment

(11) Did you testify at trial? If yes, at what phase of the trial did you testify?

N/A

(12) Did you appeal from the judgment of conviction?

H yes a no

Misc. Docket No. 06-103 Page 3 of 13 ATC 11.07 (Rev. 03-05-07)

If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to? Third Court of Appeals

(B) What was the case number? 3-00-00534-CR

(C) Were you represented by counsel on appeal? If yes, provide the attorney's

name:

Hon. Linda Icenhauer-Ramirez

(D) What was the decision and the date of the decision? July 26, 2001

(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?

a yes 6a no

If you did file a petition for discretionary review, answer the following questions:

(A) What was the case number? N/A

(B) What was the decision and the date of the decision? rc/a

(14) Have you previously filed an application for a writ of habeas corpus under Article

11.07 of the Texas Code of Criminal Procedure challenging this conviction!

Dt yes d no

If you answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals' writ number? Q02368-A, B.

(B) What was the decision and the date of the decision? Denied, sgpt-Pinhgr n. 2002

(C) Please identify the reason that the current claims were not presented and

could not have been presented on your previous application.

It was not until January, 2009, that the Applicant was able to

purchase his court records in order to fully attack all claims

Misc. Docket No. 06-103 Page 4 of 13 ATC 11.07 (Rev. 03-05-07)

and all applicant had to go on in the past was the direct appeal

and it only attacked one issue-

(15) Do you currently have any petition or appeal pending in any other state or federal

court?

d yes a no

If you answered yes, please provide the name of the court and the case number:

n/a

(16) If you are presenting a claim for time credit, have you exhausted your

administrative remedies by presenting your claim to the time credit resolution

system of the Texas Department of Criminal Justice? (This requirement applies to

any final felony conviction, including state jail felonies)

d yes a no

If you answered yes, answer the following questions:

(A) What date did you present the claim? N/A

(B) Did you receive a decision and, if yes, what was the date of the decision?

N/A

If you answered no, please explain why you have not submitted your claim:

N/A

(17) Beginning on page 6, state concisely every legal ground for your claim that you are

being unlawfully restrained, and then briefly summarize the facts supporting each

ground. You must present each ground on the form application and a brief

summary of the facts. Ifyour grounds and briefsummary ofthe facts have not been

presented on the form application, the Court will not consider your grounds.

Misc. Docket No. 06-103 Page5 of ]3 ATC 11.07 (Rev.03-05-07)

GROUND ONE: THE APPLICANT CONTENDS THAT NON-ACCOMPLICE EVIDENCE WAS INSUFFICIENT

TO CORROBORATE THE ACCOMPLICE WITNESS TESTIMONY AND CONNECT THE APPLICANT

TO THE OFFENSE, RESULTING IN INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.

FACTS SUPPORTING GROUND ONE:

Pete Arevalo the victim testified that Sonya Holder brought three black males

to his home and robbed him. He testified that the black male who had the gun and

pistol whipped him was a light-skinned black male between 18 to 20 years of age

and there was no mention of beards and mustaches during his original description

of his assailants. Th applicant is very dark skinned and he wore a beard and a

mustache. The photo spread used for the line-up was overexposed to show that

the applicant was dark skinned. Also, the gun that was supposedly used left the

home the same way it came in, as testified by Sonya Holder. But, the victim was

able to find pieces of a gun in his bed, on the floor of his bedroom, and under

the bed in which was already documented by CSI and no such evidence was then

found. But the evidence was in his bedroom for three days before he brought it

to the investigating detective. See Brief in Support pages 1-14.

Misc. Docket No. 06-103 Page 7 of13 ATC 11.07 (Rev. 03-05-07)

GROUND TWO: THE APPLICANT CONTENDS THAT THE TRIAL COURT ERRED IN NO GIVING

A CORRECT CHARGE TO THE JURY WHEN IT FAILED TO STATE WHETHER ACCOMPLICE WAS

A WITNESS AS A MATTER OF FACT OR LAW.

FACTS SUPPORTING GROUND TWO:

On the court's charge to the jury before deliberation the charge is to be

hypotheticaliy correct in its writting before the jury can make a determination

on guilt or innocence. The charge failed to explain the accomplice as a matter

of law or as an accomplice as a matter of fact. Pages 6 and 7 of the court's

charge only stated that the accomplice was in fact only as an accomplice

and that caused a significant harm to the applicant in recievinq a fair trial.

See Brief in Support pages 14-17.

Misc. Docket No. 06-103 Page 8 of13 ATC 11.07 (Rev. 03-05-07)

GROUND THREE: THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED VJAS MANUFACTURED

AND WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH

THE JACKSON V. VIRGINIA STANDARD.

FACTS SUPPORTING GROUND THREE:

Th<» victim testified that he was beaten with a western style .22 revolver

with a pearl handle in which the attackers were trying to sell to him- The

gun was allegedly broken to pieces durinq the attack. The accomplice Sonya

Holder testified that the gun came out alonq with the attackers but.

three or four days later the victim brouqht pieces of a qun and in fact

after examination of the evidence the trial court wil see that the pieces

is parts from several different weapons in which shows the deception and the

manufactured evidence is insufficient to support the conviction.

See Brief in Support 17-21.

Misc. Docket No. 06-103 Page 9 of 13 ATC 11.07(Rev. 03-05-07)

GROUND FOUR: THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO OBTAIN

A CONVICTION BASED UPON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT

THE PERJURED AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT'S

FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUE PROCESS OF LAW.

FACTS SUPPORTING GROUND FOUR:

The applicant contends that the record shows that there was false and perjured

testimony qiven durinq testimony presented by the State and that the victim and

the accomplice witness conived the testimony together to make sure that the

accused would take the charqe and be sentenced to prison due to her venqeful feelinqs

and spite towars the applicant. The records show that the victim visited the

accomplice Sonva Holder durinq her incarceration for this robbery aqainst him.

See Brief in Support pages 21-28.

Misc. Docket No. 06-103 Page 10 of 13 ATC 11.07 (Rev. 03-05-07)

GROUND: FIVE: THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING

QUESTIONS DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE

CONVICTION.

FACTS SUPPORTING GROUND:

The State was permitted to use leadinq question in a especially egreqrious manner

that was throughout the entire direct examinations of their witnesses until the

defense counsel was then forced to object. See Brief in Support pages 28-31.

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT

RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

10

Misc. Docket No. 06-103 Page 11 of 13 ATC 11.07(Rev. 03-05-07)

rnnilNirSTX- THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE

STaS TO PRESET eSnEQUS OFFENSE TESTIMONY AND FAILED TO PRESENT EVIDENCE

THAT THE JURY COULD FIND BEYOND AREASONABLE DOUBT THAT THE APPLICANT CUMMirrsD

THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.

FACTS SUPPORTING GROUND;

«*> .nnHrant h-~h-a that the n^fr.ionv of extraneous acts were not admissible

durinq the guilt and innocence of the trial. Sonya Holder testified about drug

dealing and threats of aviolent nature toward her after the commission of the

offense. The applicant is entitled to only be tried for the crime in which he

was charge and not for being a criminal in general. See Brief of Support pages

31-37.

GROUND2 SEVEN: THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE

PROSECUTION PROMISED THE ACCOMPLICE-WITNESS SOMETHING OF VALUE FOR HER

INCULPATORY TESTIMONY AGAINST THE APPLICANT IN VIOLATION OF 18 U.S.C. §201(0(2).

FACTS SUPPORTING GROUNDS

The applicant contends that the testimony of Sonva Holder was purchased with a

promise of Tenancy bv r^H gvino nrnhaHon for the crime and tt»f hff fllso WQS

the only attacker that was convicted for the crime charged. See Brief in Support

pages 37-39.

<-uniIlMn* EIGHT- THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE

0GFRTOlJL CoS^'HE WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE

WHICH CAUSED AN ACTUAL AND SUBSTANTIVE DISADVANTAGE TO THE APPLICANT IN RECIEVING

A FAIR TRIAL. ,

FACTS SUPPORTING GROUND;

ThP trial counsel failed in his duty to provide adguate assistance in helping

client in recievinq a fair trial. Failure to call expert witness, failed to call

exculpatory witnesses,failed to object to extraneous offense testimony, failed

to preserve error, failed to request specific instruction and object to the courts

charge. See Breif in Support pages 39-50. _

^t>™txii>» MTNF- THP APPLICANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE

0GFR£uS KiREC? APPEA^R^AILUpS TO LITIGATE ALL AVAILABLE CLAIMS IN THE

VIOLATION OF THfcl SIXTH AMLNDMW11 OF THE U.S. OJNSi'liUllUN.

FACTS SUPPORTING GROUND; . ..

The appellate attorney Honorable Linda Icenhauer-Rameriz failed to litigate all

the available claims on direct appeal- See Brief in Support pages 50-53.

PROIJND2 TEN: THE APLICANT CONTENDS THAT FACTUAL INNOCENCE IS AN EXCEPTION TO

TOE ^EDPA'S ONE yIrSTATUTE OF LIMITATIONS AND/OR IS AGATEWAY FOR REVIEW OF THE

APPLICANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENCE IS INSUFFICIENT

TO ESTABLISH THE REQUISITE FINDING OF GUILT IN THIS CASE.

FACTS SUPPORTING GROUND; .

Since the federal court refused to entertain his writ due to the time bar issue

due to the actions of the district court clerk in Travis County for not filing

his application when it was recieved he was penalized by that 5 month interval.

Along with the ineffective assistance of counsel and with the alibi witnesses

this satifies the cause and prejudice standard to have this issue heard in court

and the applicant is satifying the exhaustion requirement before he can go to

federal courts. See Brief in Support pages 53-70.

rROUND' TWELVE: THE APPLICANT CONTENDS THAT THE STATE FAILED TO OBJECT TO THE

COURT'S CHARGE THEREBY FAILED TO PRESERVE ERROR FOR APPELLATE REVIEW WHICH THEN

SUSTAINS THE CONVICTION IN VIOLATION OF APPLICANT'S DUE PROCESS RIGHT OF LAW AND

DUE COURSE OF LAW RIGHTS AND DENIED HIM A FAIR TRIAL. ____

FACTS SUPPORTING GROUND;

ThP avprs ^h^t- <-hP hypol-h^H rally rvv-rprf inrv charap it had written Wflfl PTTQnPOUS

and that the State failed to object as well as the defense- See Brief in Support

pages 73-76.

GROUNDS TWELVE: THE APPLICANT CONTENDS THAT THE APPELLATE COURT MISAPPLIED

THE STANDARDS OF NEIL V. BIGGERS, IN THE AFFIRAMTION OF THE APPELLATE REVIEW.

FACTS SUPPORTING GROUND;

The applicant contends that the appellate court did not follow all five factors

of the SuorPiriP Court case as: stated", aboveiin.the determination of the use of

the use of the photo line-uo of the in-court identification- See Brief in

Support pages 70-73-

VERIFICATION

(Complete EITHER the "oath before a notary public" OR the "inmate'sdeclaration.")

OATH BEFORE NOTARY PUBLIC

STATE OF TEXAS, COUNTY OF .

, BEING FIRST DULY SWORN, UNDER OATH, SAYS:

THAT HE/SHE IS THE APPLICANT IN THIS ACTION AND KNOWS THE CONTENT OF

THE ABOVE APPLICATION AND ACCORDING TO APPLICANT'S BELIEF, THE FACTS

STATED IN THE APPLICATION ARE TRUE.

Signature of Applicant

SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF

Signature of Notary Public

INMATE'S DECLARATION

I, Robert Lee Brown ^ BEING PRESENTLY

INCARCERATED IN Eastham Unit. Lovelady Texas t DECLARE UNDER

PENALTY OF PERJURY THAT, ACCORDING TO MY BELIEF, THE FACTS STATED IN

THE APPLICATION ARE TRUE AND CORRECT.

SIGNED ON M<3u 9% 2009

11

Misc. Docket No. 06-103 Page 12 of 13 ATC 11.07 (Rev. 03-05-07)

APPENDIX

[EXHIBIT A]

%

?r-x

[EXHIBIT B]

TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION

REASON FOR REQUEST: (Please check one)

PLEASE ABIDE BY THE FOLLOWING CHANNELS OF COMMUNICATION. THIS WILL SAVE TIME, GET YOUR REQUEST

TO THE PROPER PERSON, AND GET AN ANSWER TO YOU MORE QUICKLY.

1. I_J Unit Assignment, Transfer (Chairman o! Classified!.-•<>. 5. L_.' Visiting List (Assi. Director of Clasideation. Administra

Administration Building) tion B\j'kiing}

2. D RestoratiohsOf Lost overtime (Un if approved, it 6. !'_J Parole requirements and related information (Un't Parole

will be forwarded to the ffsciplinary Commil'vo) Counselor

3. l~J Request for Promopef^Jn Class or to Trusty Class (Unit 7. L_! Inmate Pip^Record (Request for copy of record, intor-

Warden-if approved, wnNie fonva.deJ to the Director ul maiipi^onparbje eligibility, discharge date, detainers-Unit

Classificatic

^ministration)

1—' „,

4. l_J Cle, , -Pardon, parole, early out-mandatory supen-ision 8. L_i Personal Interview wifaa representative ofan outside agen

of Pardons and Paroles. 86 W Shoal Creek Blvd. cy [Tieatment Division, Administration Building)

Austin, Texas 78711)

SI

>

TO \/*J/>^s/M&?S.

<T (Name and title of official)

DATE: &L-Q6> -<$G

ADDRESS: _p^2ga^7 /,^/X

[EXHIBIT B PG. 2]

SUBJECT: State briefly the problem on which you desire assistance.

l/^^

Living Quarters: ^~- ?r?/-7~ Work Assignment: A/j»t^ S/7*Ar?j,

DISPOSITION: (Inmate will not write in this space)

[EXHIBIT C]

TOt Troy C. Bennet Jr.

Clerk Of Criminal Appeals

In And For State Of Texas

Capitol Station

Austin* Texas 78711

REt Robert Lee Brown, Cause Humbert 03-99-00534-CR & Trial

Court No.: 00-2358

STYLEt Robert Lee Brown, Applicant

VS.

The State Of Texas

DATEs March 21, 2002

Dear Clerks

On January 29, 2002 I mailed an original writ of habeas corpus

with a copy for the trial clerk to stamp or file mark ray copy and

return it to me. As of this date I have not received my copy of

the 11.07 nor any notice that the trial clerk forwarded the original

to your office. This brings the totar .lays to 59 days. Please advise

me whether you have received the original 11.07 and the date you

filed said writ. If you have not received the 11.07 then please

write the trial clerk for her to send it to you and forward my

copy file marked to me.

Sincerely,

Robert Lee Brown, Counsel Pro Se

TDCJ-ID.,NO.927914

Jordan Unit

1992 Hilton Road

Pampa, Texas 79065-9696

CCs'Ss Trial Judge, Michael P. Lynch

167TH Judicial District Court

Travis County Courthouse

P.O. Box 1748

Austin, Texas 78767

RLB/lwws file

[EXHIBIT D]

Robert Lee Brown #927914

Jordan Unit

1992 Hilton Rd.

Pampa/ TX. 79065

March 27, 2002

Amalia Rodriguez-Mendoza

District Clerk

Travis County

P.O. Box 1748

Austin, Texas 78767

RE: Ex Parte Robert Lee Brown Cause No. 002368

Dear Mrs. Mendoza,

Please be advised that it has been 48 days since I have mailed you my

11.07 Application for Habeas Corpus in the above caase no. I am aware that your

Court recieved the Writ no later than February 4th of this year, by the latest

I should have had a response from the State by no later than February 18, 2002.

And I should have heard from the Court*s Recoiranendation no later than March 13,

2002. This is to inform you that I have not recieved neither one and that is

including the number of the Writ once it was filed. Could you please inform me

of the status of the Writ. I am thanking you in advance for your cooperation

on this matter.

tted,

^Roberfe^tee B^bwhT927914

Applicant Pro-Se.

CC: File

[EXHIBIT E]

Robert Lee Brown §927194

Jordan Unit

1992 Hilton Rd.

Pamas, TX. 79065

Date: April 10, 2002.

District Clerk

Amalia Rodriguez-Mendoza

Travis County

P.O. Box 1748

Austin, TX..78767

RE: Ex Parte Robert Lee Brown Cause No. 002368

Dear Mrs. Mendoza,

Please be advised that this is my second request for the cause no., and the

status on my 11.07 Writ of Habeas Corpus. I have still not recieved a response

from your office. I would like to be informed of the Status of the 11.07. I am

waiting patiently for a response from you. I want to make sure that I will not

get time barred from my Federal Petition.

CC: FILE

[EXHIBIT F]

Robert Lee Brown §927194

Jordan Unit

1992 Hilton Rd.

Pampa, TX. 79065

Date: May 1, 2002.

Travis County District Clerk

Araalia Rodriguez-Mendoza

P.O. Box 1748

Austin, TX. 78767

RE: Ex Parte Brown Cause No. 002368

Dear Mrs. Mendoza,

Please be advised that this is my 3rd notice requesting any and all status

on ray 11.07 Writ of Habeas Coprus. Why is it taking so long to have it filed?

Could you please let me know? The Writ was mailed from my unit on the 27th of

January, surely it does not take this long to put a file stamp on it and allow

the Court to rule on it?

CC: File

[EXHIBIT G]

COUNTY OF iKAViS

STATE OF TEXAS

AMALIA RODRIGUEZ-MENDOZA P.O. Box 1748

District Clerk Austin, Texas 78767

Tuesday, June 04,2002

BROWN.ROBERT LEE

927914

K-201-B

1992 HILTON RD.

PAMPA, TEXAS 79065

RE: Application for Post Conviction Writ of Habeas Corpus

Cause Number: 002368-A

Ex Parte: BROWN.ROBERT LEE

In the 167TH Judicial District Court of Travis County, Texas

Dear Sir:

Your application for post conviction writ of habeas corpus has been received and filed on

06/04/2002, and bears the above cause number.

Acopy of your application for post conviction writ of habeas corpus has been forwarded to the

District Attorney of Travis County, Texas.

Respectfully,

AMALIA RODRIGUEZ-MENDOZA

District Clerk, Travis County, Texas

Deputy

copy to: District Attorney, Travis County, P.O. Box 1748, Austin, TX 78767

[EXHIBIT H]

Robert Lee Brown §927194

Jordan Unit

1992 Hilton Rd.

Pampa, TX. 79065

Date: June 10, 2002

Travis County District Clerk

Amalia Rodrigues-Mendoza

P.O. Box 1748

Austin, TX. 78767

RE: Cause no. 002368-A

Dear Mrs. Mendoza,

I thank you for your response to my letter dated May 1, 2002. Thank you for

letting me know the status on my Writ. I have but one question? It took 124 days

from the time it left my unit that my Writ was file stamped, will and how will

this affect my Federal time clock for my §2254 Petition?

CC: FILE

[EXHIBIT I]

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[EXHIBIT J]

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[EXHIBIT K]

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[EXHIBIT L]

CHRONOLOGICAL TIMELINE

STATE

Convicted and Sentenced May 10, 2000

Direct Appeal filed January 29, 2001

Appeal affirmed July 26, 2001

Motion for Extension of Time

for P.D.R. Auqust 17, 2001

Granted until October 26, 2001

Mandate issued November 9, 2001

Application for 11.07 filed January 27, 2002 See Exhibit B

Recieved in District Court January 31, 2002

Letter to Court of Criminal Appeals March 21, 2002 See Exhibit C

Letter to Travis County District Clerk March 27, 2002 See Exhibit D

Letter to Travis County District Clerk April 10, 2002 See Exhibit E

Letter to Travis County District Clerk May 1, 2002 See Exhibit P

Letter from District Clerk June 4, 2002 See Exhibit G

Letter to Travis District Clerk June 10, 2002 See Exhibit H

Letter to Travis County District Clerk June 16, 2002 See Exhibit I

Letter to Travis County District Clerk Auqust 9, 2002 See Exhibit J

Motion of Response and Statute of Writ

of Habeas Corpus August 14, 2002 See Exhibit K

Writ of Mandamus filed May 29, 2002

Writ of Mandamus and 11.07 denied September 11, 2002

11.07 Writ of Habeas Corpus recieved

at CCA. Auqust 5, 2002

FEDERAL

Writ of Habeas Corpus §2254 filed March 10, 2003

Report and Recommendation March 19, 2003

Objection to R & R April 9, 2003

Objection Overruled April 11, 2003

Order denying Writ for Time Bar April 11, 2003

Motion for Rehearinq April 25, 2003

Denied May 5, 2003

Notice of appeal May 15, 2003

Petition for COA June 30, 2003

Mandate issued October 22, 2003

Writ of Certeorari Jan 14, 2004

60B Motion March 30, 2004

denied (Writ of Certeorari) May 14, 2004

Notice of appeal of

60 B Motion denied June 3, 2004

Notice from 5th Circuit June 29, 2004

COA due August 8, 2004

IFP filed July 22, 2004

denied as moot July 23, 2004

Notice of appeal July 6, 2004

Petition for Authorization July 26, 2004

60b motion denied Auqust 4, 2004

Petition for Authorization denied September 8, 2004

(1)

CHRONOLOGICAL TIMELINE

Request for IFP filed April 12, 2005

Request for successive Petition August 7, 2006

Petition for Authorization August 31, 2006

Order to consider Successive Application November 8, 2006

and Sanction warning issued

STATE

Second 11.07 Application filed August 19, 2008

Findigs of facts September 24, 2008

Filed to CCA October 16, 2008

Filed motion to dismiss 11.07

application October 19, 2008

Dismissed under 11.07 §4 October 24, 2008

dismissed without written order November 19, 2008

(2)

[EXHIBIT M]

STATE LAW LIBRARY

PO BOX 12367

AUSTIN, TEXAS 78711-2367

To: Robert Lee Brown - # 927914

Date: 3/2/2009

From: Inmate Copy Service

Re: PD-1613-01: Docket Sheet.

Thank you for your request for copies dated February 27, 2009. Unfortunately, we are unable to

process your request as we received it.

We are unable to locate a docket sheet for your PDR filings. Please find enclosed a print out of

CCA's Case Events for PD-1613-01. Yourmotion for Extension of Time was disposed on 08.17.2001

and time to file was extended until 10.26.01. Enclosed is an estimate for copies of your Motion for

Extension of time and Motion to File FewerCopies. Letters from CCA granting these motions are

included with these documents.

The State Law Library accepts requests for photocopies of material held in our collection (with

specific cites) or court records held by the Court of Criminal Appeals of Texas or the Third Court

of Appeals.

[EXHIBIT N]

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

RE: Writ No. 52,699-01

STYLE: Robert Lee Brown

TRIAL CT NO:

September 11, 2002

This is to advise that the Court has denied without

written order the motion for leave to file original

application for writ of mandamus.

tBcj COOWtR

ROBERT LEE BROWN TDC# 927914

056 JORDAN UNIT

1992 HILTON ROAD

PAMPA TX 79065 &-C&

K

GROUND FOR REVIEW NO. 1

THE APPLICANT CONTENDS THAT NON-ACCOMPLICE EVIDENCE WAS INSUFFICIENT TO THEN

CORROBORATE THE ACCOMPLICE WITNESS TESTIMONY AND CONNECT THE APPLICANT TO

THE OFFENSE, RESULTING IN INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.

ARGUMENT AND AUTHORITIES:

A conviction cannot be had upon the testimony of an accomplice witness

unless corroboration by other evidence tending to connect the applicant with

the offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense. Tex.Code.Crim.Proc.Ann. Art. 38.14

(Vernon 1979).

The test for sufficient corroboration is to eliminate from consideration

the accomplice testimony and then examine the other inculpatory evidence

to ascertain whether the remaining evidence tends to connect the applicant

with the offense. Martinez v. State, 163 S.W.3d 92 (Tex.App.Amarillo 2005);

HcDuff v. State/ 939 S.W.2d 607, 613 (Tex.Crim.App.1997); Burks v. State,

867 S.W.2d 877, 887 (Tex.Crim.App.1994).

In order to then determine whether the accomplice witness testimony

is corroborated, the court is then required to eliminate all accomplice

evidence and determine whether the other inculpatory facts and circumstances

in evidence tend to connect the applicant to the offense. Martinez, supra

at 92; Munoz y. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993).

NON-ACCOMPLICE EVIDENCE PRESENTED

The State presented three (3) wintesses in this case. The three witnesses

did give live testimony. The jury was instructed that Sonya Holder was an

accomplice. (Court's Cherge P. 96). There was non-accomplice testimony that

tended to connect the applicant to the crime. The State's witness Pete Arevalo

testified that the applicant was the one who was holding the pistol during

the robbery. (RR4: 211-216) The non-accomplice testimony and evidence was

as follows:

DETECTIVE ROY GAY

Testified that he interviewed the victim several days after the offense.

During the conversation, the victim related how Sonya Holder and three black

males had come to his home and robbed him. (RR4: 131-134) The victim brought

in pieces of a handgun which the robbers had allegedly used to beat him which

had broken into several pieces during the assault. Gay testified that this

weapon, State's exhibit #22, was a deadly weapon. (RR4: 138-144) Gay testified

after he talked to the victim, he had an arrest warrant issued for Sonya Holder.

1.

When she was arrested/ he then interviewed her and then she identified all

the persons with her durinq the robbery as Robert, Sean, Ouincv. She did

not know their last names but she thouqht Robert's last name was Caldwell

and he had a half-brother named Kevin Caldwell. With that information, Det.

Gay was able to come up with the name of Robert Brown, the Applicant. He

showed Holder State's Exhibit 24, a picture of Applicant, and she identified

him as the Robert who had participated in the robbery. Det. Gay then made

a photoqraphic line-up containinq Applicant's photo which he showed the

victim. After the victim picked Applicant out, Det. Gay obtained an arrest

warrant for Applicant. (RR4: 147-159). Det. Gay also testified that the shotgun

was later recovered on October 26, 1999, during a traffic stop of an unamed

individual, (who later turned out to be Albert Edwards). The serial number that

was found on the shotgun in the car matched the serial number furnished by the

victim. State's Exhibit 23, the shotgun, was admitted into evidence and Det. Gay

testified that State's Exhibit 23, was a deadly weapon. (RR4: 161-166).

VICTIM: PETE AREVALO

testified that he had known Sonya Holder for approximately four years

as a prostitute. (RR4: 190-192) (Sonya Holder testified that she was 21 years

old when she was on the stand, that makes her 17 years old when she was first

having sex for drugs with the victim who was 56 years old at the time) He

related that on the night of September 29, 1999, Holder came to his door

at around 10:30 p.m. and asked to use the bathroom. When he opened the door,

Holder walked in, followed by two men who said they had a pistol they wanted

to sell to him. They showed him a chrome pistol and when the victim told

them that he was not interested, one of the men began to hit him with the

pistol in the head while the other man held him. The man stopped hitting

him with the pistol and pointed the gun at him and demanded that he show

them where he kept his money.

The victim began fighting back and he was struck again. The victim told

the men that there was money in his bedroom, so the man with the gun went

into the bedroom and began looking for the money. When he could not find

it, he became more upset- The victim was able to break free from the second

robber who had been holding him and he ran for his shocgun which was in the

bedroom. He was able to get it and then a struggle ensued between him and

the two robbers over the shotgun. During the strugyle the victim was knocked

onto his bed- The man who had been holdiny him climed on top of the victim

while the other man beaan hittina him with the uistol. At this time, the

victim saw a third man standina in the doorway. He veiled somethinu and the

man was on toy of the victim ran out. of the room. The man with the pistol

was able to get the shotgun away from the victim and he pointed the shotaun

at the victim and attempted to fire it; however, the shotgun misfired.

When this occurred the robber ran out of the room with the shotgun.

The victim testified that he never got a good look at the third robber. After

the robbers left his home, he shut the door and called the police. (RR4: 193-

208). During his testimony, the victim identified Applicant as the individual

who had the pistol during the robbery. (RR4: 211-216).

ACCOMPLICE WITNESS RULE

Article 30.14 of the Texas Code of Criminal Procedure, forbids any

conviction on the uncorroborated testimony of an accomplice witness. It is

also provided that evidence that shows only the commission of the crime is

insufficient corroboration.

REASONS FOR THE RULE

The accomplice witness rule is a legislative creation, and is not required

by "the common law!' Holladay v- State, 709 S.W.2d 194, 197 (Tex.Crim.App. 1986).

The Court of Criminal Appeals has noted the reasons for the rule:

The rule's roots can be traced to common law, where interested parties

were precluded from testifying in both criminal and civil cases-"fear

of perjury was the reason for the rule." The United States Supreme

Court recognizes the basis of such rules were to set aside a class of

persons who were more than likely to commit perjury than other witnesses.

This suspicion and fear of perjury is not without reasons-

Accomplices often strike bargins with the State, where the prosecutor

agrees to a favorable sentencing recommendation in exchanye for the

accomplice's testimony against the other person. Courts have recognized

that a plea bargin contains a degree of compulsion. In addition, those

accused of crimes tend to try to place the responsibiltiy for the crime

that was committed on the other participants while downplaying their

own participation, often in order to avoid the consequences of criminal

acts. For these reasons, and to protect the criminal defendants in each

case. The legislature has determined that uncorroborated testimony of

an accomplice is not enough to support a criminal conviction.

Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998).

"The rule reflects a legislative determination that accomplice testimony

implicatinq another person should be viewed v/ith a measure of caution, because

accomplices often have incentives to lie, such as to avoid punishment or shift

blame to another person." Blake, supra at 454.

An accomplice witness has been described as a discredited witness. It

has frequently been said that the testimony of an accomplice witness

is untrustworthy and that it should be recieved and viewed and acted

on v/ith caution--.[T]he testimony of an accomplice witness is to be

carefully scrutinized not only because of any interest he or she might

have, but because his or her testimony is from a corrupt source.

Paulus v. State, 633 S.W.26 827, 843 (Tex.Crim.App.1981).

"(S]uch a person who testifies for the prosecution is infamous and her

testimony is considered so untrustworthy a conviction should not be based

solely upon that testimony. Because such a witness is usually deemed to be

corrupt, his testimony is always looked upon with suspicion-" Holladay, supra

at 196. A accomplice is considered to be a discredited witness, and her testinrany

is to be scrutinized because of her possible interest in the outcome of the

trial in order to "minimize the danger that an accomplices self-interest might

motivate her to falsely implicate others in her crime in order to deflect

blame and punishment from herself." Jester v. State, 62 S-W.3d 851, 855 (Tex.

App.-Texarkana 2001); Reyna v. State, 22 S.W.3d 655, 653 (Tex.App.-Austin

2000); See also 7 Wigmore on Evidence §2057 at 417 (Chadbourn rev. 1978).

The Legislature has implemented and codified these beliefs about accomplice

witness testimony by enacting Art. 38.14 and its predecessor statutes. Holladay,

supra at 196.

INTERPRETATION OF THE ACCOMPLICE WITNESS RULE

Who is an accomplice?: In 31ake, the Court of Criminal Appeals explained:

Our case law lias clearly defined who is subject to the accomplice witness

rule. A person who is merely present at the scene of the offense is

not an accomplice; an affirmative act or omission is required.

An accomplice participates before, during, or after the commission of

the crime-presence at the scene of the crime is not required- though

one is not an accomplice for knowing about a crime and failing to disclose

it, or even concealing it.

Blake, supra at 454.

"An accomplice witness...must be subject to prosecution for the offense

thatc committed." Moron v. State, 779 S.W.2d 399, 401 (Tex.Crim.App.1985);

see also. Creel v. State, 754 S.W.2d 205, 213 (Tex.Criin.App.1988}("One is not

and 'accomplice witness' who cannot be prosecuted for the offense for which

the accused is charged," nor one who did not act with the requisite mental

state for that particular offfesne). "[A] person is an accomplice witness

if there is sufficient evidence connecting them to the criminal offense as

a blameworthy participant." Blake, supra at ^-SS; see also, Paredes v. State, 129

S.W.3d 530, 536 (Tex.Crim.App.2004); Creel, supra at 213; see also Kunkle v.

State, 771 S.W.2d 435, 439 (Tex.Crim.App.1985); Sinqletary v. State, 509 S.W.2d

572, 575 (Tex.Crim.App. 1974).

To determine if someone is an accomplice, the Court should examine "the

record for evidence of their participation in the crime," but it is irrelevant

whether they were actually charged-"what matters is the evidence in the record."

Blake, supra at 455. Even if a person is an accomplice with an accused in

the commission of other offenses, she is not an accomplice in an offense unless

thereis a "showing of her complicity in the offense," i.e., the offense on trial.

Caraway v. State, 550 S.W.2d 699, 702 (Tex.Crim.App.1977); Easter v. State,

536 S.W.2d 223, 228-29 (Tex.Crim.App.1976). To render one accomplice, there

must be record evidence showing an "affirmative act on [the alleged accomplice's

part] to assist in" the offense. Caraway, supra at 702, citing Chappell v.

State, 519 S.W.2d 453, 460 (Tex.Crim.App.1975).

Evidence that fails to show participation in planning or promoting the

the offense is insufficient to render one an accomplice. Caraway, supra at

702, citing Cross v. State, 550 S.W.2d 61 (Tex.Crim.App.1977). "[T]he fact

that the witness was present when the crime was committed does not compel

the conclusion that she was an accomplice witness," so the mere fact that

a witness was present with the parties who committed the crime before the

commission of the offense does not render one an accomplice. Caraway, supra

at 702, citing Quintanilla v. State, S.W.2d 329, 331 (Tex.Crim.App.1973);

Colunqa v. State, 527 S.W.2d 285, 286-87 (Tex.Crim.App.1975).

TYPES OF ACCOMPLICES

An accomplice witness may be either an accomplice as a matter of fact

or as a matter of law. Blake, supra at 455.

ACCOMPLICES AS A MATTER OF 1AW:

A person indicted for the same offfense as the defendant is an accomplice

as a matter of law. Solis v. State, 792 S.W.2d 95, 97 (Tex.Crim.App.1990);

Barrara v. State, 42 Tex. 260 (1875). When evidence shows that a witness is

an accomplice as a matter of law, the trial court should instruct the jury

that:

(1) it may not convict on that witness's testimony unless evidence from

a non-accomplice source needs to connect the defendant to the crime,

and

(2) evidence merely showing the commission of the offense is insufficient

to corroborate an accomplice's testimony.

Blake, supra at 455; Article 38.14 T.C.C.P.

ACCOMPLICES AS A MATTER OF FACT

On the other hand:

[i]f the evidence presented by the parties is conflicting, and it is

not clear whether the witness is an accomplice, the jury must initially

determine whether the witness is an accomplice as a matter of fact.

If the evidence is conflicting, it is proper to leave the question of

whether an inculpatory witness is an accomplice witness as a natter

of fact under instructions defininq the term accomplice.

Blake, supra at 455.

That is, if some evidence raises an issue as to whether a witness was

a blameworthy participant in the crime, an accomplice-as-a-matter-of-fact

instruction should be given. It is axiomatic that if no evidence raises an

issue, no such instruction is required. See and compare, e.g., Medina v. State,

7 S.W.3d 633, 641 (Tex.Crim.App.1999); Smith v. State, 721 S.W.2d 844, 851 (Tex.

Crim.App.1986).

THE DISTINCTION BETWEEN TYPES OF ACCOMPLICES IS VERY IMPORTANT:

It is important to distinguish between witnesses who are accomplices

as a matter of law and witnesses who may be accomplices as a natter of fact.

Unless a witness is an accomplice as a matter of law, the jury will determine

whether the witness is, in fact, an accomplice whose testimony is not, in

fact, an accomplice, they need not find corroboration of her before relying

upon it, in fact, corroborate true accomplice witnesses' testimony. See e.g.,

Solomon v. State, 49 S.W.3d 356, 362-63 (Tex.Crim.App.2001).

THE ACCOMPLICE WITNESS JURY CHARGE INSTRUCTION AND ITS PURPOSE:

The Court of Criminal Appeals has recently spoken of the accomplice-

witness instruction's purpose:

The prupose of the [accomplice witness] instruction, therefore is

not to casr suspicion on the testimony provided by the accomplice or

to encouraqe lurors to give it less weight than other testimony. Rather,

the instruction merely reminds the jury that it cannot use the accomplice

testimony to convict the defendant unless there also exists some non-

accomplice testimony tyinq the defendant to the offense.

Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.2006); Herron v. State, 86 S.

W.2d 621, 632 (Tex.Crim.App.2002).

If an accomplice witness instruction is qiven regardinq a particular

witness, though the evidence did not raise the instruction, the witness is

still not an accomplice, and her testimony may be used to corroborate the

testimony of the true accomplices. Solomon, supra at 362.

MEASURING THE SUFFICIENCY OF CORROBORATION OF ACCOMPLICE-WITNESS TESTIMONY:

"The accomplice witness rule is a statutorily imposed sufficiency review

and is not derived from federal or state constitutional principles that define

the leqal and factual sufficiency standard." Cathey, supra at 463; Malik v.

State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The "accomplice witness statute

simply requires 'other evidence1 meaninq some non-accomplice evidence"; thouqh

there is no "practical difference between the statutory standard and reviewinq

evidence 'in the light most favorable to the verdict,"' the accomplice witness

rule is not based "upon federal constitutional principles." Cathey, supra

at 463. "'The corroborating evidence must simply-in some general, perhaps

"significant," way-as a matter of logical relevance tend to show that the

accused was involved in the behavior constituting the charqed offense."',

quoting Dix and Dawson, Texas Practice and Procedure, Vol. 42, §31.201, p.

273 (1995). Tne sufficiency of evidence to corroborate accomplice-witness

testimony is assessed under the "hypothetical correct jury charge" standard

applicable to all evidentiary sufficiency reviews- See Malik, supra at 240.

MUST TEND TO CONNECT APPLICANT TO OFFENSE, NOT JUST CORROBORATE ACCOMPLICE

TESTIMONY:

It is well established that evidence corroborating the accomplice's testimony

but not tending to connect the Applicant to the offense is insufficient "no

matter how much credit the iury might have aiven to such testimony." Paulus,

supra at 843. And, "although an accomplice witness may state any number of

facts that are corroborated by evidence of other witnesses, still the facts

thus corroborated do not tend to connect the Applicant with the crime, then

corroboration on that basis would not meet the requirements of Article 38.14."

Caotaneda v. State, 682 S.W.2d 535, 538 (Tex.Crim.App.1984). "[A]ny evidence

which verifies extraneous matters without tending to connect the accused

to the actual crime charged is insufficient." Walker v. State, 615 S.W.2d

728, 733 (Tex.Crim.App.1981).

It was also pointed out [in Phillips' Treatise on Evidence] that a

distinction lies between confirmation as to the circumstances of the

offense and confirmation affecting the applicant's connection to the

offense. Confirmation merely as to the circumstances of the offense is

really no confirmation at all- Confirmation as to the applicant's only

connection to the offense, however, should be by independent evidence

from which the jury may reasonably be satisfied, apart from the accomplice

testimony, the applicant's connection to the offense.

Holladay, supra at 199.

"The phrase 'tending to connect' has the ordinary dictionary definition,

'to serve, contribute or conduce in some degree or way...to have a more

or less direct bearing or effect,' and, while not contemplating conjecture,

'has some tendency to prove the averments in the indictment.'" flolladav,

supra at 198.

In Hernandez v. State, 636 S.W.2d 617, 621 (Tex.App.-San Antonio 1982),

the San Antonio Court of Appeals stated, "there can be no conviction on

the testimony of accomplice alone, no natter how many there may be, if their

testimony is not corroborated by evidence apart from accomplice testimony."

This proposition, while not directly taken from prior case law, seems to

be an accurate interpretation of current law interpreting Art- 38.14.

"The accomplice witness rule prevents...obtaining a conviction solely

upon the word of a confederate of the accused. There must be other independent

evidence or the accused may not be convicted." Moron, supra at 401- Before

a conviction may be based upon an accomplice's testimony, "there must be

corroborating evidence, other than the testimony of the accomplice witness

which tends to connect the applicant with the offense."

ARTICULATING THE STANDARD OF REVIEW FOR SUFFICIENCY OF CORROBORATION:

The statute "requires that the testimony of the accomplice witness be

eliminated from consideration while the testimony of the other witnesses

is examined for evidence of an incriminating nature tendinq to connect the

accused with the commission of the offense." Caraway, supra at 702; Moron, supra

at 401; Paulus, supra at 843; Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.

App. 1968) Castaneda, supra at 537. The reviewing Court should consider

the combined weiqht of all non-accomplice evidence, even if it is on the

level of circumstantial. See e.g., Richardson v. State, 700 S.W.2d 591, 594

(Tex.Crim.Apo.1985); see also, Jackson v. State, 516 S.W.2d 167, 171 (Tex.Crim

App. 1974) quoting Minor v. State, 108 Tex.Crim. 1, 299 S.W. 422, 428-29

(1927).

"All the facts and circumstance* in evidence mav be looked to for anv

corroboration, and the corrohorative evidence mav be circumstantial or direct.

Furthermore, it is not necessary that the corroboration directly link the

accused to the crime or be sufficient in itself to establish guilt." Brown

v. State, 672 S.W.2d 487, 488 (Tex. Crim.App.1984); Paulus, supra at 843,

court may look to all facts and circumstances corroborating accomplice whether

direct or circumstantial. Evidence corroborating accomplice-witness testinrany

"is sufficient if the combined cumulative weight of the incriminating evidence

furnished by the non-accomplice witness tends to connect the accused with

the commission of the offense." Romero, supra at 532.

The rule "does not demand that there be 'other evidence tending to connect

the applicant with [the] offense committed.'" Holladay, supra at 204; Edwards,

supra at 632; Minor, supra at 428; Cathey, supra at 462. "It is not necessary

that the corroborating evidence directly link the accused to the crime or

be sufficient in itself to establish guilt." Paulus, supra at 843. "Apparently

insignificant circumstances sometimes afford most satisfactory evidence

of guilt and corroboration of accomplice witness' testimony."

The State is not called upon to point to some single or isolated fact

which in itself, unrelated > to other proven facts, will be sufficient

corroboration. It is combined and cumulative weight of the evidence then

furnished by non-accomplice witnesses which supply the test. If by this

rule it appears on appeal that before the jury there was proof that

confirms the testimony of the accomplice witnesses to material facts

tending to connect the accused with the commission of the offense, the

is satisfied.

Walker, supra at 731; Edwards, supra at 632; Minor, supra at 429.

EACH CASE MUST BE CONSIDERED ON ITS OWN MERITS:

Despite the many articulations of the standard and its boundaries and

limits, "No precise rule can be laid down as to the amount of evidence that

is required to corroborate the testimony of an accoaiplice, so as to sustain

a conviction of the accused." Paulus, supra at 844. Each case must be consider

on its own facts and circumstances.

In sum, where the State relies upon an accomplice witness' testimony

to convict the accused for a particular offense, the accomplice witness'

testimony must be both material and must be corroborated by independent

evidence tending to connect the accused to the crime. As to whether the

evidence adduced is sufficient to corroborate testimony of the accomplice

witness, such must, of course, be decided on an ad hoc basis.

Holladay, supra at 200.

TENDENCY TO CONNECT SUFFICIENCY STANDARD:

"Tendency to connect" rather than rational sufficiency is the standard

[for corroboration of accomplice-witness testimony]: the corroborating evidence

need not be sufficiency enough by itself to establish guilt." Solomon, supra at

361; Cathey, supra at 462. "The accomplice witness rule is satisfied if there

is some non-accompiice evidence which tends to connect the accused to the

commission of the offense alleged in the indictment." Hernandez v. State,

939 S.W.2d 173, 176 (Tex.Crim.Apo.1997). Circumstances not individually to

corroborate accomplice witnesses testimony, may, when taken together, bre

such that "rational jurors could conclude" it tends to connect the accused

to the offense.

THE EVIDENCE IS INSUFFICIENT:

The sufficiency of the evidence must be measured against a "hypothetical-

correct jury charge." Cathey, supra at 463; Malik, supra at 240. If the jurors

had been instructed properly, they would have been instructed that if they

believed Sonya Holder was an accomplice as a matter of law in the offense

as that term had been defined for them, they could not convict on her testimony

unless it was corroborated by other non-accomplice testinrany. In the Court's

Charge to the jury they were instructed that Sonya Holder was just an accomplice

and as a result, the jury charge naming her as an accomplice was not correct.

Determining the strength of non-accomplice evidence requires examination

of (1) its reliability or believeability and (2) the strength of its tendency

to connect the Applicant to the crime. Herron, supra at 633(discussing issue

in alleged jury-gharge error context). The "reliability inquiry nay be satisfied

if: (1) there is non-accomplice evidence, and (2) there is no rational and

articulable basis for disregarding the non-accomplice evidence or finding

that it fails to connect the applicant to the offense."

THE RELIABILITY INQUIRY

The Supreme Court set out five nonexclusive factors to be used to assess

reliability testimony. Testimony is considered to be reliable If the totality

of the circumstances reveals no substantial likelihood misidentification despite

a suggestive pre-trial procedure.

(1) The opportunity of the witness to view the criminal at the time of the

crime.

The victim described one robber as an 18 to 20 year old light skinned

black male. He told police that the light skinned black male hit him in the

head with the pistol and when the victim grabbed his shotgun, the light skinned

black male took the shotgun away from him and left with it. The victim never-

described any of the assailants as having a beard or a mustache. (RR4: 93-

110, 117-121). Detective Gay testified that the victim described his attackers

as (1) a young male, 18 to 22, light-skinned, who initially beat him witii

the pistol and then took the shotgun from him and left with it; and (2) a

darker skinned black male. Gay testified that the victim told him that lie

did not get a good look at the second individual and did not feel like he

coould identify him- However, he knew that the second individual was very

dark. (RR4: 170-172) On cross-examination, Detective Gay also admitted that

Applicant is very dark skinned arid at the time of trial had a full mustache

and beard. (RR4: 172).

10

During his testimony, the victim identified Applicant as the individual

who had the pistol during the robbery, (even after he testified that the

one who beat him and had the pistol was light-skinned, 18 to 22 years of age,

when in fact the Applicant was dark-skinned and 32 years of age when this

crime was committed.)

In the liqht of the victim's vague and general description of the person

who beat him with the pistol and fought with him over the shotgun as light-

skinned and from the age 18 to 20. Every witness, including Detective Gay

agreed that the Applicant is a very dark-skinned individual. Detective Gay

even testified that the photograph was not an accurate portrayal of Applicant's

true appearance in terms of skin color. The accomplice witness, Sonya Holder,

testified that not only was Applicant very dark-skinned but he was "thirty-

something."

(2) The witness's degree of attention.

The photo that the Detective used for identification of the Applicant

as a light-skinned individual was just plain false, the trial court never

made any specific findings regarding the victim's opportunity to view his

assailant. However the record does show that the victim and the light-skinned

individual struggled for several minutes. However it must be noted that much

of the time during the struggle was spent wrestling over a shotgun common

sense indicates that the victim was looking at the gun during this time and

not at the assailant's face. Had he been paying more attention, he would

have been able to give more detail.

The victim testified in court about the identification of the Applicant.

I will never forget that nan. Whenever he released—when he's released, if

he should be released, he will remember me. They gave me a beatiny, a beating

that I will never forget. This is not even human, to beat a person like that,

break their teeth and 48 stitches and my body was bruised up. You think I'm

going to forget that man? I will never forget that man. ...I still have

him in my head— photocopy of him in my head. (RR4: 234).

Yet, although the victim testified that the Applicant as his light-

skinned young attacker, the evidence show that in fact the victim was able

to give no details of the assailant's description. He did not recall if the

attacker had facial hair (the Applicant has worn a full mustache and beard

for some time); he could not describe any facial features; and he could not

give a clothing description- But, yet he has a photocopy of him in his head.

11

(3) Accuracy of the victim's prior description of the criminal.

When initially asked to describe his assailant's by the officers

who responded to the initial robbery call, the victim could only state that

"there was a female that he knew and that there were three black males that

accompanied her." (RR4: 101) Later at the hospital, the victim then described

one of the robbers specifically "[a] a black male, 13 to 20 years of age,

light skinned. (RR4: 106-108) He made no mention of the assailant having

a beard or mustache and he could not describe any of the clothing worn by

any of the three men. (RR4: 106) The victim's vague verbal description of

the light-skinned attacker never changed. (RR4: 170) He did tell Detective

Gay that he did not think he could recognize the dark-skinned man. (RR4:

172) Clearly, the victim's description of his main attacker was so vague and

general that it could have applied to thousands of people. Yet, he had a

photocopy of him in his head. (RR4: 234).

(4) The level of certainty demonstrated by the victim.

The victim appeared to be certain of his identification of applicant

as the light-skinned attacker after he was shown the photographic lineup/

his story changed compared to the other person that was with him, the other

person—the other person black male that was with him, he was lighter colored,

if you compare the other person with him, you would say he's light skinned.

That's what they wanted. I mean, they wanted a description. One was darker

than the other. The other one was darker. What am I suppose to say? Well,

I mean, what am I supposed—how do—description that they want? (RR4: 235).

(5) The length of time between the crime and the confrontation.

This crime occurred on September 29, 1999 and the confrontation in the

courtroom between Applicant and the victim occurred on May 2, 2000, and eight

month interval. Applicant would point out that during this interval, the

victim maintained his relatiosnship with the accomplice witness, Sonya Holder.

This woman is responsible for his beating, why carry on a relationship with a

person who caused you so much trauma. In fact both Holder and the victim,

who had a relationship of prostitute-customer drug supplier prior to the

crime admitted that the victim had visited Holder several times during her

incarceration for this offense and in fact the victim had even put money

on her account at the jail. (RR4: 83-84, 224-226) Certainly raises the issue

that a possibility that some of their discussions during this eight month

interval included Holder suggesting to the victim that Applicant was one

12

of her accomplices. Holder testified in response to questioning by both the

State and the defense that she was recieving testimonial immunity in exchange

for her testimony and it was also her hope that in exchange for her testimony

against Applicant, that she would recieve probation. (RR4: 39-40, 72, 88).

CONCLUSION

The Applicant has proven through the preponderance of the evidence that

accomplice witness and non-accomplice testimony was insufficient to support

the conviction and request that a evidentiary hearing be held to determine

the merit of the claim and if this reviewing court finds in favor of the

Applicant it is required to order a new trial or the immediate release of

the Applicant.

GROUND FOR REVIEW NO. 2

APPLICANT CONTENDS THAT THE TRIAL COUR ERRED IN NOT GIVING A CORRECT CHARGE

TO THE JURY WHEN IT FAILLED TO STATE WHETHER ACCOMPLICE WITNESS WAS A WITNESS

AS A MATTER OF FACT OR AS A MATTER OF LAW.

ARGUMENT AND AUTHORITES:

A. FACTS

On page 6 and 7 of the Court's charge to the jury it states: "You are

charged that Sonya Holder was an accomplice if any offense was committed,

and you are instructed that you cannot find the defendant guilty upon the

testinrany of Sonya Holder unless you first believe that the testinrany of

said Sonya Holder is tue and that it shows the defendant is guilty as charged

in the indictment.

B. APPLICABLE LAW

The Court of Criminal Appeals has established a standard of review to

whether or not the Applicant was harmed by the trial Court's error in failing

to include the correct instructions in the jury charge that requires that

the reviewing court to examine the evidence presented at trial. AIman2a v.

State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1985)("i\'e that finding error in

the Court's charge to the jury begins-not-ends the inquiry; the next step

is to nake an evidentiary review along the lines described in Davis, supra

as well as a review of any other part of the record as a whole which may

illuminate the actual not just the theoretical, harm to the accused.")-

At the conclusion of final arguments of counsel the Court prepared the

13

proposed charge to the jury and presented it to the State and the Applicant's

counsel to permit each an opportunity to enter objections to the 'proposed

charge and neither the State or the Defense objected to the charge. The Court's

failure to include the correct instruction on accomplice witness as a fact

question for the jury to decide if the witness, Sonya Holder, was a accomplice

as a matter of fact, or as a matter of law. See McDuff v. State, 939 S.W.2d

607, 613 (Tex.Crim.App.1977). The individuals, Sonya Holder, Robert L. Brown,

having been indicted for committing the offense, were accomplices as a matter

of law. Smith v. State, 897 S.W.2d 348, 350 (Tex.Crim.App.1995).

The only evidence that would have been available to the State to support

a conviction of the Applicant would have been the testimonial evidence of

the witness who was a party (accomplice) in the offense. Of course, under

Texas Law, a conviction cannot be sustained on the uncorroborated testimony

of individuals who were accomplices in the commission of the offense.

Pursuant to T.P.C. §7.01. Parties to Offense (a) each party is responsible

as a party to an offense if the offense is committed by his own conduct,

by the conduct of another for which he is criminally responsible, or by both.

(b) Each party to an offense may be charged with the commission of the offense.

(c) All traditional distinctions between accomplices and principles are then

abolished by this section, and each party to an offense may be charged and

convicted without alleging that he acted as a principle or accomplice, and

T.P.C. §7.02. Criminal Responsibility for Conduct of Another provides: a

person is criminally responsible for an offense committed by the conduct

of another...(2)acting with the intent to promote or asist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense;...In addition, Tex.Crim.Proc Art.

38.14. Testimony of Accomplice, informs us that, " conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence

tending to connect the defendant with the offense committed; and corroboration

is not sufficient if it merely shows that the commission of the offense."

Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

Sonya Holder, applicant's codefendant, testified that she had had a

relationship with the victim for approximately five years wherein he would

give her money and drugs for sex. (RR4: 32-41). She also testified that she

also had a relationship with Applicant at the same time wherein they would

have sex and do drugs together. (RR4: 42-45). She testified that on September

14

29, 1999, she went to Pete Arevalo's house to rob him and in that robbery

she took drugs from Arevalo's home. She testified that she took the drugs

to Brown and they smoked them. (RR4: 45-46). Holder related that they drove

to to the victim's home which was located in his automotive shop. She knocked

on the front door and when the victim answered the door, she told him that

she needed to use the bathroom. The others were waiting off to the side.

Holder testified that she entered the victim's small apartment and proceed

to the bathroom. Holder testified that when she returned from the bathroom

she saw the applicant holding the victim, by his neck up against the wall

and Quincy was holding the gun to the victim's head. (RR4: 52-54). Surely

she satisfied the legal requirement as set out in §7.02 in that arguably

she had the requisite intent, knowing that they were going to rob the victim

and she certainly did aid in the preperation having helped in the securing

of the victim by knocking on the door.

As a consequence Holder satsfied both the legal and factual conditions

of §7.01 and §7.02. With these facts, concerning the knowledge and the conduct

of the witness, it is not unreasonable to expect that, had the required correct

instructions regarding accomplices been included in the charge, the jury

could have determined that Holder was a accomplice as a matter of law.

A person is an accomplice if she participates before, during, or after

the commission of the crime and can be prosecuted for the same offense as

the applicant or for a lesser-included offense. Medina v. State, 7 S.W.3d

663, 641 (Tex.Crim.App.1999) cert, denied 529 U.S. 1102, 120 S.Ct. 1840,

146 L.Ed.2d 732 (2000). The trial court failed in its duty to include the

correct instructions were Holder was a accomplice as a natter of law. It

is enshrined in our law that the jury is the sole trier of facts, not the

court. Tex.C.Crim.Proc Art. 36.13 Jury Judge of Facts, provides, "unless

otherwise provided in this code, the jury is the exclusive judge of the facts,

but they'rebound to recieve the law from the court and be governed thereby."

In failure to include the correct instructions on a fact question in

regards to accomplices and accomplice testimony the trial court has then

impermissibly intruded into the are of fact determination reserved to the

jury and usurped its function as exclusive trier of fact. Applicant asserts that

the evidence is insufficient to support when measured by the evidentiary

standard established by the Court of Criminal Appeals in Malik v. State,

15

953 S.W.2d 234, 239 (Tex.Crim.App.1997) where the court overruled prior case

law governing sufficiency of evidence to support a conviction and stated

the new rule as follows: "Hence, sufficiency of the evidence should be nseasured

by the elements of the offense as defined by the hypothetical correct jury

charge in the case. Such charge would be one that accurately sets out the

law, and is authorized by the indictment, does not necessarily increase

the State's burden of proof or unnecessarily restricts the State's theories

of liability, and adequately describes the particular offense for which the

applicant was tried."

However, should this reviewing Court determine that the trial court

erred in failing to include an accomplice as a matter of law instruction

concerning Holder this Court must conduct a harm analysis. The actual degree

of harm is assessed from the following factors:

(1) the charge itself;

(2) the state of the evidence including contested issues and the weight

of the probative evidence;

(3) arguments of counsel;

(4) any other relevant information revealed by the record of the trial as

a whole.

Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996).

The Court having denied the jury the opportunity to discharge their

function as the exclusive trier of fact has denied the applicant a fair and

impartial trial. The only remedy which would redress the harm to the appplicant

is to reverse and remand the cause to the trial court for a new trial on the

merits.

GROUND FOR REVIEW HO. 3

THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED WAS MANUFACTURED AND WAS

NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH THE JACKSON

V. VIRGINIA STANDARD.

ARGUMENT AND AUTHORITES:

a. FACTS

According to the charge and the testimony the court determined that

the crime happened on September 30, 1999 into October 1st 1999. And where

Sonya Holder was accompanied by three black males and went to Pete Arevalo's

home to rob him of money and drugs. (RR4: 45). He was allegedly beaten with

a Western Style .22 Revolver with a pearl handle. (RR4: 54, 199, 133). The gun

16

was supposedly disintergrated when it was used to beat the victim on his

head^ and three days later Arevalo brought the pieces to the Detective in

charge of the investigation Roy Gay. (RR4: 13C). The fragments consisted of

the broken pearl handle, A slide spring from an automatic weapon, a barrel

that had a ten degree bend in it, a, cylinder locking pin, and other small

pieces. See State's exhibit #22, (Applicant's Exhibit A).

Pete Arevalo testified that he found pieces of the gun in his bed

and on the floor and under his bed. (RR4 140, 229, 230, 231, 142). This was

after the Criminal Scene Investigators came in and took pictures of the small

apartment and the bedroom in which this altercation took place. The Accomplice

witness Sonya Holder testified that Sean handled the pistol when he exited the

apartment. She also testified that the gun belonged to Quincy. (RR4: 54, 61).

She later testified that they took the guns to someone elses home and tried to

figure what to do with the .22 and the shotgun. (RR4: 63). She also testfied

that there was only one pistol. (RR4: 71).

Since Sonya Holder testified that the pistol that was taken in the

home of Arevalo and taken out of the home of Arevalo, where did the pieces of

the different pistols come fror.:. Both the victim and the detective testified

that Pete Arevalo has a son who worked as a detective in the Austin Police

Department. (RR4: 163, 228).

B. APPLICABLE LAW

The Applicant may assert that the evidence is legally insufficient

under two seperate thoeries. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.

Crim.App.2002). First, he may claim that the evidence is not legally sufficient

as a matter of federal constitutional law. The standard for reviewing the

legal sufficiency of the evidence under this standard is whether after viewing

all the evidence in the light most favorable to the prosecution any rational

trier of fact would have found the "substantial elements of the criminal

offense as defined by state law" beyond a reasonable doubt. Jackson v. Virginia,

99 S.Ct- 2781, 2789, n.12 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex,Crim.

App.2000); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).

A review for legal sufficiency does not involve a reweighing of the

evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d

556 (Tex.Crim.App.2000). The jury is to be the exclusive judge of witnesses

credibility and the determiner of the weight to be accorded to the witnesses

testimony, and is to reconcile conflicts in the evidence, whether properly

17

admitted or not in determining whether the evidence was legally sufficient.

Lockhart v. Nelson, 488 U.S. 33 (1988); Johnson v. State, 967 S.W.2d 410

(Tex.Crim.App.1988). In any criminal cases the State must prove every element

of the element of the offense beyond a reasonable doubt. Tex.P.Code §2.01;

Tex.C.Crim.Proc Art. 38.03; In Re Winship, 397 U.S. 358 (1970); Alvarado

v. State, 912 S.W.2d 199 (Tex.Crim.App.1995). A conviction is not sustainable

on appeal if the evidence does not sufficiently establish all material evidence

of the offense charged. Gilbertson v. State, 563 S.W.2d 606 (Tex-Crim.App.

1978). If the evidence is insufficient under constitutional due process,

the conviction must be reversed and the applicant acquitted. See Burks v.

U.S., 1, 12, 98 S.Ct. 2141, 2150, 51 L.Ed.2d 1 (1978); Fuller, Supra at 253.

In the alternative, the applicant may assert that the evidence is leqally

insufficient under the State law sufficiency standard. Fuller, suora at 253.

Under the State standard, evidentiary sufficiency is measured aqainst the

"elements of the offense as defined by the hypotheticaliy correct jury charge

for the case." Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App.2001).

A "hypothetical correct jury charge" encompasses the statutory elements of the

offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d

394, 404 (Tex.Crim.App.2000). If the evidence is determined to be insufficient

under this State law standard the applicant's conviction must be reversed

and the cause remanded for a new trial. Fuller, supra at 253; Gollihar, supra

at 248.

Under both standards, a reviewing court is not to position itself as

a thirteenth juror in assessing the evidence. Dewberry v. State, 4 S.W.3d

735, 749 (Tex.Crim.App.2000); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.

App.1988). It is not the reviewing court's duty to disregard, realign, or

weigh evidence, this the fact finder has already done. Moreno, supra at

867. Rather, the verdict must stand "unless it is found to be irrational

or unsupported by more than a 'mere modicum' of the evidence," with such

evidence "being viewed under the Jackson light." Muniz v. State, 851 S.W.2d 233

246 (Tex.Crim.App.l993)("we do not reevaluate the weight and the evidence

credibility, but act as only to ensure that the jury reached a rational and

clear decision.").

The fact finder, as the exclusive judge of the facts, the witnesses

credibility, and the weight given their testimony, is free to believe or

disbelieve the testimony or reject any or all the evidence on either side.

18

Adelman v. State, 828 S.W.2d 412, 418 (Tex.Crim.App.1992). The fact-finder do

not need to believe even uncontroverted testimony. Johnson v. State, 571

S.W.2d 170, 173 (Tex.Crim.App.1978). Conflicts in the evidence, then, are

for the for the jury to decide and resolve, and a mere conflict in the evidence,

without more, is not enough to render the evidence insufficient to support

a verdict. Upton v. State, 853 S.W.2d 548, 552 (Tex.Crim.App.1993).

Practically, the corrsct standard of review requires the reviewing

court to resolve inconsistencies in the testimony in favor of the verdict.

See Turro v. State, 867 S.W.2d 43, 47-48 (Tex.Crim.App.1993). The Court's

to review the evidence "as it is already weighed by the jury's verdict to

determine whether any rational trier-of-fact could have found the essential

elements of the offense beyond a reasonable doubt." Moreno, supra at 867; Turro,

supra at 47. In testing the sufficiency of the evidence, "a reviewing court

must not focus on what the State's evidence failed to show, instead [its]

focus is on the evidence actually introduced." Billey v. State, 895 S.W.2d

417, 419 (Tex.App.-Amarillo 1995).

The applicant would like to show the court as follows:

A person committs the offense of aggravated robbery, if he commits

the offense of robbery as hereinafter defined, and he uses or exhibits a

deadly weapon. A person ciommits the offense of robbery if in the course

of committing theft as hereinafter defined and with the intent to obtain

or maintain the control of property, he intentionally or knowingly threatens

or places another in fear of imminent bodily injury or death. T.P.C. §29.03(a)

(1)(2)(3).

Now bearing in mind the foregoing instructions, if you believe from

the evidence beyond a reasonable doubt, that the defendant, Robert Lee Brown,

on or about the 1st day of October, 1999, in the county of Travis and the

State of Texas, did then and there, while in the course of committing theft

of property, intentionally, or knowwingly threaten or place Pete Arevalo in

fear of imminent bodily injury or death, and Robert Lee Brown did then and

there use or exhibit a deadly weapon, to-wit: a firearm, that in the manner

or means of its use or intended use, was capable of causing death or serious

bodily injury, you will find the defendant guilty of the offense of aggravated

robbery and so say you by your verdict, but if you do not believe, or if you

have a reason to doubt thereof, you will acquit the defendant and say by your

verdict "Not Guilty".

The quoted paragraph is sufficient to charge the offense and must be

19

proved. Wray v. State, 711 S.W.2d 631 (Tex.Crim.App.1936). In the instant case,

the State relied only on the victim and the accomplice witness to convict

him of the charges on the indictment. The indictemnt states that the Penal

Code they used was 29.03, 2(a) stating that the victim was 65 years of age

or older during the commission of the offense-

Detective Gay testified that he interviewed the victim several days

after the offense. DurinG this conversation, the victim related how Sonya

Holder and three black males had come to his home and robbed him. (RR4: 131-

134) The victim brought in pieces of a handgun 3 days after the occurrence

which the robbers allegedly had used to beat him with and which had broken

during the assault. Gay testified that after that this weapon, State's exhibit

#22, was a deadly weapon. (RR4: 138-144).

Sonya Holder (accomplice witness) testified that she went to the home of

Pete Arevalo on the 29th of September. She also testified that the gun belonged

to Quincy and he had the gun going in to Arevalo's home and Sean had the gun

coming out of Arevalo's home. She testified that there was only one pistol.

She later testified that they took both guns, the .22 and the shotgun to some

other home and stashed them. (RR4: 45-90).

Pete Arevalo stated in his testimony that he found the gun and brought to

Detective Gay 3 days after the incident and that it was in pieces and he could

only describe the pearl handle. He also testified that the shotgun misfired on

him twice and it misfired on the Applicant once and also that the .22 misfired

and jammed.(RR4: 193-208). the applicant avers that a pistol of the revolver

type does not jam, it only misfires when it has dead ammunition in it's chamber.

Applicant contends that the manufactured evidence that Pete Arevalo did

present to the Detective was legally insufficient to support the conviction and

this court is required to hold and.evidentiary hearing and investigate the gun

evidence and compare it with the testimony given above and reverse this illegal

conviction and vacate the sentece-

GROUND FOR REVIEW NO. 4

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO OBTAIN A CONVICTION

BASED ON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT THE PERJURED

AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT" S FIFTH AND

FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUUE PROCESS OF LAW.

AUTHORTIES AND ARGUMENT;

The United States Supreme Court has expressly recognized that when

20

confronted with perjurious and false testimony the prosecutor has duty

to correct it. Giqlio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed-2d

104 (1972); U.S. v. Aqurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Further, if the prosecutor had actual knowledge of the falsity of the

testimony is then irrelevant, if the prosecutor should have known is sufficient

enough. Giglio, supra at 152. Thus, tne Supreme Court has endorsed the imputation

of knowledge at least from one prosecutor to another, however, the extent

of this imputation of knowledge has been expanded. In Adams v. State, 768

S.W.2d 281, 291 (Tex.Crim.App.1989), the Court noted that for purposes of

imputing knowledge to the prosecution, court's have "declined to draw a

distinction between different agencies under the same government, focusing

instead upon the 'prosecution team' which includes both investigative and

prosecutorial personnel. See Duggan v. State, 778 S.W.2d 465, 568 (Tex.Crim.App.

1989)("it does not matter whether the prosecutor actually knows that the

evidence is false; it is enough that he or she should have recognized the

misleading nature of the evidence").

To summarize, the State violates a applicants rights to due process

when it actively or passively uses perjured and flase testimony to obtain

a conviction. Mooney v. Hoiohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed.2d

791 (1935); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

Such violation occurs whenever the prosecutor has actual knowledge

or imputed knowledge of the perjury. In the instant cae, the applicant urges

that this reviewing court adopt the findings after review of the record that

he be granted relief based upon this claim that the State used perjured

testimony.

The Court will find that the State's witnesses used perjured and false

testimony which violates his due process rights and the applicant would

like to show the Court that the deception is apparent and would like to show

the court through the following exerpts from the record.

Sonya Holder:

Q: Now I want to direct your attention back to September 29th, 1999.

Did you go to Mr. Arevalo's house that day?

A: Yes, sir.

Q: And why did you go over there?

A: So we could rob him.

21

Q: Did you go over there that day to rob him?

A: Yes, sir.

Q: Was he there?

A: No, sir.

Q: Did you go back to his house that day?

A: Yes, sir.

Q: Did you take anything from the apartment?

A: Yes, sir, I did.

Q: And what did you take?

A: Drugs.

Q: And then on the next day, on September 30th, were you with Robert?

A: Yes, sir.

Q: Before the robbery, during the day, on September 30th, who were

you all with...

A: Robert Sean and Quincy.

Q: Were you all talking about doing something?

A: Yes, they were talking about robbing him...

A: Yes, they would ask me did I know where he kept his money and drugs.

(RR4: 45-48).

Q: And when you walked out of the bathroom, what did you see?

A: I saw Robert have Mr. Arevalo by his neck against the well and Quincy

had the gun in his head.

Q: Did anyone have a pistol?

A: Yes.

Q: Who had the pistol?

A: I believe Sean had it.

Q: Did Robert tell you that he tried to kill him?

A: Yes, sir.

Q: And what did he say about that?

A: He said he tried to shoot the .22 (revolver) but it jammed, and that

he tried to shoot the shotgun but it got jammed. We went to somebody's

house and wiped blood and they were putting away the guns. He wiped blood

from his shoes and he—they were trying to figure out what to do with

the .22 and the shotgun.

Q: Was there more than one pistol?

A: No, sir.

Q: Okay. So you didn't see it after the robbery?

22

A: No, sir, I didn't know what kind of condition (the pistol) was in.

Q; Describe the pistol for the jury please.

A: It was silver. That's all I know.

Q: Silver handle, silver—

A: It was a black handle with silver.

Q: Black over silver?

A: Uh-huh.

(RR4: 60-63, 77-78).

Detective Roy Gay:

A; October 4, 1999, he brought in fragments of the handgun, it was left

behind at the scene. He said that it was the handgun they tried to sell

him.

A: I believe he said he found it in his bed or in the covers of his bed.

A: Well, it had blood on it, you know, presumably from Mr. Arevalo. It was

broken in several pieces where the handle of the gun broke off.

A: Sort of a Western Style Revolver, pretty cheap.

(RR4: 138-143).

Pete Arevalo:

Q: How hard was he hitting you with the pistol?

A: Well, at that time they were just hitting me. They really hit me when

I was in bed, when I ran into the bedroom and get my shotgun.

A: It surprised them that I had a shotgun right next to the lamp. I had

it covered with a towel. At that time Sonya walked passed the doorway

and I asked Sonya to help me.

A: It means it misfired, because the shotgun misfired on me—misfired on

me twice while I was held down.

Q: And then each time after you fired it while they were stuggling—while

you were struggling with them, did you do anything to try to clear the

jam?

A: I reloaded—I cocked it again and reloaded it you know, twice, still

wondering why it misfired.

(RR4: 199, 201, 206-207).

Q: Did you pay her in cash or did you pay her in crack cocaine?

A: No, I would always pay her in cash or take her to buy some.

Q: You would take her someplace to buy some crack cocaine?

A: Yes.

Q: You never gave her directly yourself crack cocaine?

A: Na_

(RR4: 227).

23

Q: And then you found pieces of the pistol that was used to beat you ove

the head?

A: Yes.

Q: And where did you find that sir?

A: In my bedroom.

Q: And could you describe what pieces you found?

A: A bunch of broken pieces is all I can say.

Q: Part of the handle?

A: Yes.

Q: Do you recall what it looked like, the handle?

A: It was a pearl-pearl handle.

Q: And it was one of those cheap Saturday Night Special pistols, you think,

that was used to beat you over the head?

A: It had to be.

Q: I want to show what has been marked as State's Exhibit #22, can you

look in that bag and tell me what's in the bag?

A: This is the part that I found in my bedroom.

Q: And where in the bedroom did you find those?

A:.1 found some on the bed, some on the floor, and under the bed.

(RR4: 229-231).

Officer Surei Zamont-Knightner:

A: From there we requested a Crime Scene Unit to come out, and we allowed

very few individuals to enter into the building. We started a Crime

Scene Log.

A: ...It definitely looked like there had been some sort of struggle or

a fight. Things were very disarrayed. Things were all over the place,

and there was blood—there was blood on the floor, blood on the bed

and the pillows.

(RR4: 99-100).

The applicant contends that the testimony listed above shows the State

blatantly used perjured testimony and false evidence during the trial process.

It was evident that the prosecutor v/anted a conviction of the applicant when

he went clearly outside of jurisprudence to secure this conviction that he

himself brought out in testimony.

Fittingly, the prosecutor had Sonya Holder testify that she helped

rob the victim on the 29th and the 30th of September. She testified that one

pistol went in the home and one pistol came out of the home. She testified that

she recieved drugs and money from the victim.

24

Detective Gay said that the victim brought him pieces of a handgun

three days after the incident in which the Crime Scene Investigator just

walked over when they processed the crime scene.

Pete Arevalo testified that he did not give her drugs and he did not

keep them in his apartment. He also testified that the gun pieces he found

were on the bed, on the floor and under the bed. Sonya Holder testified that

the gun had a black handle, when Arevalo testified that it was a pearl handle.

In Texas, a person who swears falsely to facts in a affidavit or recording

or an affiramtion on belief can be indicted for perjury. Griffin v. State,

128 S.W.2d 1197 (1939). The victim and the accomplice is analogous to facts in

which were stated in their statements nade on a affiramtion on belief. A person

who willingly swears falsely to a belief in existence of a fact which she

knows does not exist is guilty of perjury as if she had sworn directly to

the existence of a fact which she knows did not exist. Brasher v. State,

715 S.W.2d 827, 831 (Tex.App.-Houston[14th Dist.] 1986).

The applicant had three witnesses who testified to his alibi and further

shown the court of the perjury that was invloved in prosecuting the applicant

and the trial court never considered the following testimony along with the

jury.

Margaret Walker, the applicant's girlfriend at the time testified on direct

examination that on September 30, 1999, applicant worked all night on her

car installing a new engine. The new engine was delivered at around 9:00

p.m. on September 30th and applicant was still working on it when she went

to work the next morning at 4:00 a.m. (RR5: 6-19). On redirect examination, she

amended her testimony and said that the engine had actually been delivered

on the evening of September 29th and applicant had worked on it on the 29th,

30th and on October the 1st. (RR5: 25-28).

Steve Michaelenko, applicant's neighbor, qalso testified that around September

29th or September 30th, 1999, applicant was installing a new engine in his

girlfriends car. He related that the engine was delivered at around 9:00

p.m. on the 29th or 30th and applicant worked on the car all night long.

(RR5: 28-34), Michaelenko testified on redirect examination that applicant did

work on the car for four or five nights in a row. (RR5: 37-38).

Stefan Michaelenko, Steve's son, also testified that he remembered applicant

working onnis girlfriend's car all night long one night towards the end of

September 1999. (RR5: 43-49).

25

The State's knowing use of perjured testimony and false manufactured

evidence in a criminal prosecution violates due process when the perjury

could decieve the jury unjustly convicting the applicant. The State also

has a duty to inform the Court of it's knowledge of false evidenceand perjured

testimony at trial. Failure of prosecutor to correct the perjured testimony

and false manufactured evidence of witnesses is ground for reversal. Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959); U.S. v. Thomas, 987 F.2d 1293

(7th Cir. 1993); Demarco v. U.S., 928 F.2d 1074 (11th Cir. 1991).

In the federal system, a constitutional error is harmful on collateral

review only if it had a "substantial and injurious effect or influence in

the determination of the jury's verdict- Brecht v. Abrahamson, 507 U.S. 619,

113 S.Ct. 1710, 123 L.Ed-2d 353 (1993), the State bears the burden of proving

this error to be harmless. O'Neal v. McAnnich, 513 U.S. 437, 15 S.Ct. 992,

130 L.Ed.2d 947 (1995).

The applicant asserts that from the totality of the record that the

perjured testimony and manufactured false evidence harmed him and that the

minds of the jury were persuaded by this evidence that the applicant was

guilty. This reviewing court should determine, as a matter of law, whether

the false statements and evidence can have a affect on the course of the

proceedings. Materiality is distinguished from other elements of the crime

the State typically must prove in a criminal trial. The question of the

materiality of the evidence does not depend on the probative value of the

evidence but it's prejudicial effect and impact. It has also been held that

a factual evidentiary showing establishes the basis for the materiality of

a statement, but the 'ultimate finding of materiality on any interpretation

of substantive law-'

•[Materiality1 refers to 'misstatements having some substantial potential

for obstructing justice.' This includes 'ulter trivial fabrications.* State v.

Rosenbaum, 910 S.W.2d 934, 937 (Tex.Crim.App.1994); Mitchell v. State, 608 S.W.

2d 226, 228 (Tex.Crim.App.1980).

The deliberate presentation of false evidence violates a applicants

right to due process. The failure to correct false evidence also encompasses

the same concerns- To obtain relief, the applicant has established that the

evidence was material and there is a reasonable likelihood that the false

evidence and perjured testimony did have an affect on the jury's verdict-

Generally, that the showing is made by establishing a reasonable likelihood the

26

false evidence was considered. As such, proof of the claim has encompassed

the Brecht standard of harm, and no such proof of prejudice is necessary.

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995).

This reviewing Court apparently can make an exception in the use of

"knowingly and intentionally use of perjured testimony and false evidence"

without holding that "when such is shown the Rule 44.2(a) harmless error

standard applies. See Tex.R.Evid. Rule 44.2(a).

The applicant contends that a evidentiary hearing on the evidence of

the allegation on this claim of perjured testimony and false manufactured

evidence shows that he is entitled to a new trial. "[A] new trial should

be granted when:

(1) the court is reasonably well satisfied that the testimony given

by a material witness is false;

(2) that without it the jury might have reached a different conclusion;

and,

(3) that the party seeking the new trial was taken by surprise whether

false testimony was given and was unable to meet, or know of its

falsity, until after trial.

Larrison v. U.S., 24 F.2d 82 (7th Cir, 1928); U.S. v. Nixon, 881 F.2d 1035 (5th

Cir. 1989).

Before the applicant is entitled to a new trial under the Larrison

standard there is also the 'plain error standard' which asserts that the

applicant must further establish that he 'probably would have been acquitted'

but for trial error, and hopefully with the testimony noted above and the

totality of the trial record the applcaint can recieve a reversal and remand

for a new trial and ask for the perjured testimony to be corrected.

GROUND FOR REVIEW NO. 5

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING QUESTIONS

DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE CONVICTION.

ARGUMENT AND AUTHORITIES:

A. FACTS

The State used leading questions in a especially egregrious manner that

was permitted throughout the direct examinations of their witnesses until

the defense counsel was then forced to object.

27

Q: And then on the next day. on September 30th, were you with Robert?

(RR4: 41).

Q: Before the robbery, during the day, on Spetember 30th, who all were you

with?

(RR4: 47).

Q: And what was your intention—

A: Mine?

Q; at Mr. Arevalo's? As a group, what was you all's intention?

A: To rob him.

(RR4: 52).

Q: So he was hitting you pretty hard out there?

A: Oh, yes.

Q: Could you hear anything when you were hit?

A: 0, yes. I could hear the solid hit.

(RR4: 199).

Q: Do you recall how many rounds you had in the shotgun?

A: I had four rounds—four rounds in the shotgun.

Q: Was there one in the chamber?

A: Yes.

Q: Okay. Now, when you grabbed the shotgun, what happened?

A: They knocked me on the bed, both of them did-

(RR4: 202).

Q: Okay. So at that point you were laying across—when they grabbed you,

they knocked you down across the bed?

A: Yes.

Do you recall—how were you holding the shotgun?

A: Laying on the side.

Q: So you had the —barrel was in your left hand?

A: Yes, was in left hand, and I was trying to point towards the fellow in

doorway, in other words, in front of me.

Q: And the fellow who was in front of you was the fellow with the pistol?

A: Yes.

Q: Which hand was the individual that was holding the shotgun—which hand

was he using to hold the shotgun?

A: Do what/ now—

Q: Do you recall—the individual—the man with the pistol that was also

holding the shotgun—

28 .

Q: —which hand was he holding the shotgun with?

A: I guess I don't remember...

Q: But he had it by the barrel?

A: Yes.

Q: So how many times did he hit you on the head?

A: About four times, maybe five time.

Q: So he hit you several times on the bed?

A: Oh, yes, while I was down on the bed..

(RR4: 203-204).

The applicant avers that at this juncture the defense attorney was

forced to object to the massive amount of leading questions by the prosecutor.

The prosecution went as far as pointing out who the applicant was with the

victim:

Q: When you were struggling with the guys in your house, you said that you

saw the person that had the pistol?

A: Yes.

Q: Do you see that person in the courtroom today?

A: Yes.

Q: Can you point him out?

A: (indicating).

Q: Can you tell me something's he is wearing?

A: Can I tell you what?

Q: Can you tell me something that he's wearing?

A: At that time he didn't have—what do you mean?

Q: Can you tell me something he's wearing today, just so we can put it on

the record that you've identified that person?

A: No, I couldn't tell you what he's wearing.

Q: Describe an article of clothing. What color is his shirt today?

A: What color is what?

Q: What color is his shirt today?

A: It's white, you know.

Texas Rules of Evidence Rule 611(c) states: "That leading questions should not

be used on the direct examination of a witness except as may be necessary

to develop the testimony of the witness. The trial court has discretion in

deciding whether to permit leading questions. The trial court finally had

to admonish the State in the use of leading questions. See Hernandez v. State,

29

643 S.W.2d 397, 400 (Tex.Crim.App.1982)(en banc).

Although it is recognized that in cases dealing with children the rule

against leading questions is somewhat relaxed, it should not be entirely

disregarded, as was with the case at bar. Clark v. State, 952 S.W.2d 882,

886 (Tex.App.-Beaumont 1997). It cannot be disputed that the entire direct

examination of the State's witnesses demonstrated impermissiable leading

questions in almost every detail of the robbery allegations. Not one- answer

was witnesses or from their own recollection and memory without the prompt

from the prosecutor.

The examples are numerous as listed above, as the entire testimony is

riddled with impermissible leading questions. Although the courts may be

relaxed in this area with a child witness, we are talking about a 21 year

old and a 60 year old. Such slackness in the rules of evidence should not

rise to such a egregrious level that it challenges the very basis of the

applicant's due process right and questions whether he recieved a fair trial

given such blatant violation of the rules-

Applicant's ultimate right to a fair trial and the due process right

given to him by the U.S. Constitution and by the Texas Rules of Evidence

were violated by allowing such a blatant violation of Rule 611(c) and the

trial court erred in allowing almost the entire direct-examination of the

State's witnesses to be proceeded by the prosectuions leading questions and

applicant request that his case be remanded for a new trial.

GROUND FOR REVIEW NO. 6

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO PRESENT

EXTRANEOUS OFFENSE TESTIMONY AND FAILED TO PRESENT SUFFICIENT EVIDENCE THAT

THE JURY COULD FIND BEYOND A REASONABLE DOUBT. THAT THE APPLICANT COMMITTED

THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.

ARGUMENT AND AUTHORITES:

Extraneous acts are qenerally inadmissible at the quilt/innocence staqe

of a trial. See Tex.R.Evid. 404(b)("statinq that evidence of other crimes,

wronqs, acts, is not admissible to prove the character of a person in order

to show action in conformity therewith"). A applicant is entitled to be tried

on the accusation made in the State's pleadinq and he should not be tried

for some collateral crime or for beinq a criminal in qeneral-" Wilkerson

v. State, 736 S.W.2d 656, 659 (Tex.Crim.App.1987); Ex Parte Varies, 45 S.W.3d

627, 630-31 (Tex.Crim.App.2001).

30

The applicant contends that the followinq testimony were extraneous

acts that were admitted in testimony with the failure of objections by his

counsel. There was no rulinq or in-camera hearinq to determine the validity

of the bad acts that were testified to by the accomplice-witness- The charqe

aqainst the applicant was Aqqravated Robberv and the extraneous offense that

was unadiudicated were admitted and should be viewed under an abuse of iudqes

discretion to have them testified before the iury panel.

SONYA LEE HOLDER:

Q: Have you ever seen Robert deal druqs?

A: Not see him, but I know of him doinq it?

(RR4: 43)

Q: Did you all do anythinq prior to qoinq to Mr Arevalo's?

A: Yes, sir. When Mr. Arevalo was not at home, thev went ridinq around

lookinq for other victims.

(RR4: 48).

A: Yes, sir. Thev had~thev had stopped—I don't know what street and

where at but they stopped somewhere and Sean, robert, and Quincv qot

out and went to somebody's house, but nothinq happened.

A: They were qoinq to rob somebody.

(RR4: 50-51).

0: Did Robert do anvthinq else that night?

A: Yes, he did.

Q: What did he do?

A: He threatened me.

0: How did he threaten you?

A: He said if I say anythinq, he was qoinq to kill me.

Q: Did he do anythinq physically to you?

A: Yes, he did.

Q: What did he do?

A: He qrabbed me by the neck.

(RR4: 65-66).

The Tex.Code.Crim.Proc.A.. Art. 37.07 §3(a), provides that the extraneous

offense mav not be considered in assessinq punishment until the fact-finder

is satisfied beyond a reasonable doubt that these prior acts are attributable

to the applicant.

Art- 37.07 §3(a) does provide that: "reqardless of the plea and whether the

31

punishment be assessed by the iudqe or the iurv, evidence mav be offered

by the State and the Defense as to anv matter the Court deems relevant to

sentencing, including but not limited to the prior criminal record of the

defendant, his general reputation or his character, an opinion regarding

his character, the circumstances of the offense for which he is beinq tried

and notwithstandinq Rules 404 and 405, Tex.R.Evid-, and anv other evidence

of an extraneous crime or bad act that is shown beyond a reasonable doubt

by the evidence to have been committed bv the defendant or for which he could

be held criminally responsible and reqardless whether he has previously been

charged with or finally convicted of the crime or bad act").

This rule posed several problems for the Courts until the Court of

Criminal Appeals decided that when the State attempts to introduce evidence

of extraneous offenses, the trial court must make an initial determination

that a jury could reasonably rind beyond a reasonable doubt that the applicant

committed the extraneous offense before admitting such evidence. See Mitchell

v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996). In Mitchell, the Texarkana Court

of Appeals, held that interpreting Art. 37.07 §3(a), that a preliminary

requirement that the State must prove beyond a reasonable doubt that applicant

is criminally responsible for the unadjudicated extraneous offense to be then

admitted. Mitchell, supra at 215. However, the Texas Court of Criminal Appeals

reversed and remanded Mitchell, stating that the Court of Appeals interpretation

of Art. 37.07 §3(a) was incorrect.

The Court of Criminal Appeals explained that the trial court is the

exclusive judqe on matters of law and decides the "threshold of admissibility"

on the admitted unadjudicated offenses. Mitchell, supra at 954. Thus, when

the State attempts to introduce evidence of extraneous offenses, the trial

court must make an initial determination that a jury could reasonably find

beyond a reasonable doubt that the applicant committed the extraneous offenses.

Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App.1994). It is only after the

trial judge resolves the "threshold admissibility" of the extraneous offense,

the jury, as "the exclusive judge of the facts" rather than the trial court

determines whether or not the State has proved the extraneous offense beyond

a reasonable doubt. See Mitchell, supra at 954.

This ruling makes the trial judge therefore, exclusively responsible for

determinging the "threshold admissibility" of any extraneous offense.

32

The trial court must first determine that the evidence is relevant

and that the jury could reasonably find beyond a reasonable doubt that the

applicant committed the extraneous offense. Harrell, supra at 953. If the

State fails to adduce the sufficient evidenc, the trial court should not then

admit the evidence. Stewart v. State, 927 S.W.2d 205, 208 (Tex.App.-Fort Worth

1996); U.S.C.A. VI and XIV.

It the trial court errs in making its preliminary determination that

the extraneous offense was admissible, then a harm analysis must be conducted.

The Reasonable Doubt Standard for consideration of extraneous offenses in

the guilt/innocence phase or in the assessment of punishment is neither

constitutionally required nor based on a constitutional mandate. See Fields

v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999). The court must disregard

any error not of constitutional magnitude unless it has affected the substantial

rights of the applicant. See Tex.R.App.Proc. Rule 44.2(a); Johnson v. State,

967 S.W.2d 410, 417 (Tex.Crim.App.1998); Couchman v. State, 3 S.W.Sd 155, 160

(Tex.App.-El Paso 1999).

A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury's verdict. King v.

State, 953 S.W.2d 558, 561 (Tex.App.-San Antonio 1998). The Supreme Court

has construed the nearly identical federal harmless error rule as follows:

"If, when all is said and done, the [court's] conviction is sure that the

error did not influence the jury, or had but very slight effect, the verdict

and the judgment should stand...but if one cannot say, with fair assurance,

after pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by the error,

it is impossible to conclude that the substantial rights were not affected.

The inquiry cannot be merely whether there was enough to support the

result, apart from the phase affected by the error. It is rather, even so,

whether the error itself had substantial influence. If so, or if one is left

in grave doubt, the conviction cannot stand. O'Neal v. McAnnich, 513 U.S.

432, 437-38 (1995); Vega v. State, 32 S.W.3d 897, 905-06 (Tex.App.-Corpus

Christi 2000); Kotteakos v. U.S., 328 U.S. 759, 776 (1946).

"Grave doubt", means "in the judges mind the matter is so evenly balanced

that he feels himself in virtual equipose as to the harmlessness of the error.

O'Neal, supra at 435. The trial court erred in admittinq testimony of the

extraneous offenses against the applicant when absolutely no evidence was

presented by the State that the applicant committed such acts. No rational

33

trier of fact could have found the applicant had committed the extraneous

offenses as testified to by the accomplice witness beyond and reasonable doubt

as required under Art. 37.07 §3(a). Under the "threshold admissibility" and its

requirement the trial court should not have admitted the extraneous offenses.

In a similar case in Stewart, the State offered evidence of an extraneous

offense with three witnesses, includinq the victim, who all testified to

extraneous offenses in the punishment phase, but did not qive adeauately then

identify the defendant durinq the voir dire examination. Stewart, supra at 208.

Although this was considerably more evidence offered than in the instant

case, the court held that based on the record of the voir dire examination,

no rational trier-of-fact could have found the elements of the offense bevond

a reasonable doubt, and had held that the trial court erred in makinq its

preliminary determination that the extraneous offense was admissible. Id-

at 208. However, in Stewart, the court held that the error harmless when

the subsequent testimony of the victim and the witness before the jury did then

establish that the offense could have be found by a rational trier-of-fact

beyond a reasonable doubt. The victim's testimony before trial court was

considerably stronger than the evidence provided in the voir dire examination

Stewart, supra at 208.

Although, in the instant case, Sonya Holder's testimony cannot amount

to an overwhleming amount of substantial evidence for the trial court to

have made a determination that the iurv could have found the elements of

the extraneous offense beyond a reasonable doubt. There was absolutely no

evidence proving that the applicant committed the extraneous offenses and

it's admission was undeniably harmful to the applicant qiven the sentence

imposed bv the trial court. At the very least, it should leave this court with

"grave doubt" as to whether one can say with fair assurance that it did not have

some impact on the jury's decision on the finding of guilt of the applicant.

Given the egregrious error of admittinq the extraneous offenses bv

the trial court, and the obvious harm to the applicant in sentencinq. it

is then anticipated that the respondent will try to disquise the admission

of the evidence as impeachment evidence of the applicant's character under

rules 404 and 405 of the Tex.R.Evid., thus, this issue must be addressed.

Applicant asserts that the trial court erred in admitting the extraneous

offenses testified to at trial in violation of Rules 404(b) and 403 of the

Tex.R.Evid., and it is a qeneral rule that an accused may not be tried for

34

some collateral crime or beinq a criminal in qeneral. Williams v. State,

662 S.W.2d 344, 346 (Tex.Crim.App.1983). Evidence of extraneous offense was

improperly admitted, and reversal is required, where the probative value

of the evidence was minimal and the preiudicial impact was hiqh, the reauired

intent for the offense could be infered from the content, so the State did

not need the testimonial evidence to show intent. Castillo v. State. 910

S.W.2d 124 (Tex.App.-El Paso 1995). The rule excludinq evidence of extraneous

offenses is based on the belief that althouqh such evidence shows the applicant's

propensity to criminal conduct, and qenerally its preiudicial effect overwhelms

its probative value in determininq whether the accused committed the crime for

which he is on trial.

In the face of a proper objection, evidence of other wronqs and acts are

not admissible to prove character of the person to establish that he acted in

accordance with the regards of the alleged offense, even though there was no

objection made durinq trial. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.

App.1991); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.-El Paso 1992).

An extraneous offense may be admissible, however, it has relevance

apart from its tendency to prove confomitv therewith. Evidence which loqicallv

serves apart such purposes as "proof of motive", "opportunity," "intent."

"knowledge," "preperation," "plan," "Plan," "identity," or "absence of mistake"

or "accident," is relevant far beyond itstendency to prove conforming character.

Montgomery, supra at 387; Lazcano, supra at 657; Hill v. State, 852 S.W.2d 769,

770 (Tex.App.-Fort Worth 1993); Kelly v. State, 828 S.W.2d 162 (Tex.App.-Waco

1992).

The law imposes upon the trial court the ultimate task of deciding

the "threshold admissibility" of admittinq evidence of extraneous offenses

before a jury durinq the trial process to prevent an abuse by the State of

casting before the jury every incident or extraneous offenses that may then be

concievably used against the applicant in effort to thwart the iurv into

believing the applicant may have done crimes for which they mav have no evidence

to prove to this court, in attempting to place a safeqaurd on such abuse, placed

a burden of this "threshold admissiblity" standard on the trial court to

determine if sufficient evidence exists before such extraneous offenses could

be used against the applicant. This case is classic example of such abuse,

where the trial court was inept in thier duty by allowinq a potentially harmful

35

detrimental extraneous offense to be submitted to the iury in its verdict,

when there was no evidence presented that proved that the applicant had then

committed the crimes at all. The harm was detrimental to the applicant and he

request that the court sustain this error after this court holds an evidentiary

hearinq to determine the facts on the merit and reverse and remand for a new

trial.

GROUND FOR REVIEW NO. 7

THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE PROSECUTION PROMISED

THE ACCOMPLICE WITNESS/CO-DEFENDANT SOMETHING OF VALUE FOR HER INCULPATORY

TESTIMONY AGAINST APPLICANT IN VIOLATION OF 18 U.S.C. §201(C)(2).

ARGUMENT AND AUTHORITES:

The applicant contends that Title 18 U.S.C. §201(c){2), prohibits giving,

offering, or promising anything of value to a witness 'for or because of

her testimony. Applicant argues that the State violated this one statute

by promising the State's witness and the applicant's co-defendant Sonya Holder,

probation, who had conspired with the complainant in this robbery case, in

return for her testimony against the applicant. Applicant was convicted for the

aggravated robbery in cause no. 002368 in the 167th District Court of Travis

County. The co-defendant and the victim had an unusual and questionable affair

and relationship. In trial testimony and in accordance with the county jail

records the victim visited and left money to the accomplice who was responsible

for the robbery against the victim. This evidence is supported by the trial

record that the State's witness Sonya Holder was recieving testimonial immunity

in exchange for her testimony against the applicant, by recieving probation for

tne response to the State and the defense. (RR4: 39-40, 72, 88).

Title 18 U.S.C. §201(c)(2) could not be more clear when it provides that:

"Whoever, directly or indirectly, gives, offers, or promises anything

of value to any person for or because of their testimony under oath,

or affirmation, given or to be given by such a person as a witness upon

a trial hearing or other proceedings before the court, authorized by

the laws of the United States to hear evidence or take testimony, shall

be fined under this title or imprisoned for not more than two years

or both.

This title is broadly construed to further it legislative purpose in the

detering of corruption. The prosecutor made Sonya Holder a promise of probation

for her testimony against the applicant and therby violated §201(c)(2). See

36

State v. Hernandez, 731 F.2d 1147, 1149 )5th Cir. 1984). The class of people

who can violate 18 U.S.C. §201(c)(2) is not limited when it avers "whoever,"

within the elements of the statute. First, the statute requires a gift, offer

or promise, either direct or indirect, to a person. Second, the gift, offer,

or promise must be of 'value'. Third, the gift, offer, or promise, must be

made 'for' or 'because of the person's sworn testiony at a trial, or other

proceedings before an authorized court.

The State in the case in chief promised Sonya Holder that she would recievc-

probation in return fcr her testimony

This text is long and has been trimmed here. Open the source document for the complete record.