# in Re Robert Lee Brown > Texas Court of Appeals, 3rd District (Austin) · February 13, 2015 URL: https://www.frixlaw.com/law-library/cases/4048988 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** February 13, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4048988 ## How later opinions describe it (automated extraction) - holding, "that counsel may be found ineffective for failing to consult and expert where "there is substantial contradiction in a given area of expertise," or technical subject matters...to conduct effective cross-examination" ## Opinion text 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 .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. ™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- . 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. 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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 against the applicant in trial. The State of mind required to violate that statute is knowledge that the thing of value is given for or because of testimony. U.S. y. Campbell, 684 F.2d 141, 150 (D.C. Cir. 1982) The prosecutor in the instant cause was acting on behalf of the State and is within the statutory languag of "whoever" by promising Sonya Holder ten (10) years probation for her testimony. In the case at bar, the prosecutor is the representor of the State of Texas which acted in violation of 18 U.S.C. §201(c)(2), by the promise of leniency in return of her testimony against the applicant, for without her perjured testimony the State could not have a conviction obtained in the case at bar. In Hamilton v. General Motors Corp., [citation omitted] the policy in §201(c)(2), has long been expressed and enforced at common law when the court held, "The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money because prosecutors bear a weighty responsibility to do justice and observe the law in the course of a prosecution and it is particularly appropriate to apply the structures of §201(c)(2) to their activities. The Court also held: "The attorney is the representative of an ordinary party to a controversy, but of a svereignty where obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense, the servant of the law, and the two fold aim of which is that the guilty shall not escape, nor the innocence suffer. Hamilton v. G.M.C., supra. The State made an offer to Sonya Holder due to position as an accomplice by matter of law to the instant case. The statute's "for or because of" language it does not require a Quid Pro Quo relation between the testimony and the 37 promises, though Sonya Holder admitted to being promised probation by the State. (RR4: 39-40, 72, 88), but merely requires that the promises be motivated by the testimony, even though the testimony might have been given without promises. U.S. v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980). In the applicant's case, however, the record indicates that the testimony and the promises are mutually induced by one another, a relation stronger than the "for or because of" requirement by section §201(c)(2). U.S. v. Sun Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998). In U.S.A. v. Sonya Evette Singleton, [citations omitted], the appellant Singleton, filed a motion to suppress testimony allegedly obtained in violation of 18 U.S.C. §201(c)(2). This reviewing Court is faced with a similar situatuion where here at the case at bar, the applicant filed a motion to reveal agreements with Sonya Lee Holder with the prosecution filed April 26, 2000. The Applicant submits that the only appropriate remedy for this error is reversal of this conviction and a new trial ordered, or in the alternative, allow the applicant to bring this second application for writ of habeas corpus and conduct and evidentiary hearing to give the applicant an opportunity to prove by the preponderance of the evidence that had it not been for the perjured testimony of the State's witness Sonya Holder, and show that no jurist of reason could find the applicant guilty beyond a reasoanble doubt. GROUND FOR REVIEW NO. 8 THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE OF TRIAL COUNSEL 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. ARGUMENT AND AUTHORITIES: A. FACTS The applicant contends that he can show this reviewing court through the following complaint that his trial counsel was not reasonable and his actions were no the function of sound trial strategy. Trial counsel in his performance was deficient in that it fell below the prevailing norms of his profession, and the deficiency prejudiced and harmed the applicant, that is, but for the deficiency there is a reasonable probability that the result of the proceedings would have been different in which caused an actual and substantive disadvantage for the applicant to recieve a fair trial. 38 Trial counsel Hon. Charles Hineman failed to investigate the facts of the case and failed to formulate a comprehensive understanding of the facts sufficient enough to present an adequate defense for his client- Trial counsel failed to investigate the crime scene, he failed to have an expert witness appointed, failed to preserve error in multiple instances, he failed to object to extraneous offenses, he failed to request instructions for the court's charge. These are the errors that the applicant contends that will help the court to determine reasonableness of the trial counsels representation. The performance of counsel fell below the professional norms and a reasonable probability exits that the outcome may have been different had he been aware of the facts of the case. Applicant's main argument is that on review, trial counsel's representation is highly deferential and it may be presumed that counsel's actions were not within a wife range of professional asssistance. Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001); Tonq v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). When the record is silent on the motivation underlying counsel's tactical decisions, the applicant usually cannot overcome the strong and overwhelming presumption that counsel's conduct was reasonable. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Tong, supra at 714. The court in Strickland, held that trial counsel has a professional duty to present all testimony and any other evidence to support his client's defense. Strickland v. Washington, 466 U.S. 668 (1984); U.S. Const. Amend. Six and Fourteen; Art. I §10 Tex.Const.; Tex.Code.Crim.Proc.Ann. Art. 1.05. Attorney for the defense has a responsibility to seek out and interview any witnesses and investigate any viable deenses available to his client, and a failure to do so is ineffective assistance of counsel, if that defense is not advanced. Ex Parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App.1982). Texas follows the standard brought forth by the federal court in Supreme Court case, Strickland v. Washington, supra, in deciding whether the applicant did recieve effective assistance of counsel. Williams v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). B. FAILURE TO CALL EXPERT WITNESS In the instant case the victim brought fragments of a handgun in which was alleged to be the weapon the applicant used to beat him with. This took place 3 days after the incident,' the detective Roy Gay did no tests on the gun 39 fragments. There was no D.N.A. testing on the allegede blood and there was no latent prints lifted to see if there could have been someone else who committed the offense. The applicant contends that there was pieces from several different weapons which brings into effect the discrepincies of the evidence. The trial counsel could have had an expert to examine State's Exhibit #22. This intum will help to determine if that weapon did infact break apart during the assault of the victim in his home, especially when there is testimony that show that the gun went in the house and came out of the house by the assailants. In Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60 L.Ed.2d 158 (1932), the Court held, "it is not enough to assume that the counsel thus percipitated into the case though there was no defense, and exercised his best judgment in the proceeding to trial without preporation. No one can say what a prompt and thorough investigation which is ongoing might disclose as to the facts." Applicants counsel should of investigated the crime scene of the offense charged. Then also try to interview and investigate the State's witnesses, also, he should of been aware of any surprises. The failure to investigate will not be considered sound trial strategy because no strategy can begin to be a formulation of strategy until counsel has investgated facts and the witnesses. See Ex Parte Lilly, 656 S.W.2d at 493; Smith v. State, 894 S.W.2d 876, 880 (Tex.App.-Amarillo 1995), unless the applicant who is charged, has a competent counsel able to invoke procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial and when the State obtains a conviction through such a trial it is the States action that unconstitutionally deprives the applicant of his liberty. See Cuvler v. Sullivan, 466 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); U.S. Const. Amend. VI. The applicant's trial counsel's failure to prepare a defense and call all witnesses be it character or expert of fact, prejudices the applicant especially in light of the weakness of the State's case. Applicant is charged with aggravated robbery with a deadly weapon and was denied effective assistance of counsel and as a result of counsel failing to conduct and adequate and thorough investigation and present a forensic expert to rebut testimony of the victim and the Detective. 40 The United States Supreme Court characterized these failures as on of the two "[more]" compelling sets of errors that will support the Court in concluding that the applicant's trial attorney had provided constitutionally ineffective assistance. In the instant case, the only witnesses to the alleged evidence of aggravated robbery if the victim and the accomplice-witnesses and there is substantial circumstantive evidence that the applicant was involved with the offense. When a case hinges all-but-entirely on whom to believe, an experts interpretation of relevant physical evidence (or lack of it) is the sort of "neutrally disinterested" testimony that may help in tipping the scales and sway the fact-finder. Because of the importance of physical evidence should be a focal point of defense counsel's pre-trial investigation and analysis of the matter, such pre-trial investigation and analysis will generally require some form of consultation of an expert. It is difficult to imagine a aggravated robbery w a deadly weapon...where the defense would not be aided by the assistance of an expert. In summary, trial counsel's failure to consult an expert knowing there was no test done to support the evidence and testimony that the applicant did infact hold the weapon and beat the victim with it. Then by not conducting relevant research and talking to the witnesses or even request underlying studies relied on by the evidence given by the State, contributed to the trial counsel's ineffectivensess. See Holmsback v. White, 133 F.3d 1382, 1387-89 (11th Cir. 1998); Knott v. Mabry, 67 F.2d 12-13 (8th Cir. 1982)(holding, "that counsel may be found ineffective for failing to consult and expert where "there is substantial contradiction in a given area of expertise," or technical subject matters...to conduct effective cross-examination"). For this error this reviewing Court should be compelled to hold a evidentiary hearing and search the record and see that there is evidence to sustain this complaint. C. FAILURE TO CALL EXCULPATORY WITNESSES The accomplice witness Sonya Holder testified that she gave the names of the other two assailants who were allegedly with the applicant during the robbery to the Detective Roy Gay, but there was no charges filed on those two individuals and their names were in the file and if the trial counsel did infact read or go through the D.A's records he could of called those 41 other two co-defendants and used their testimony to exculpate the applicant. (RR4: 69). Brown is entitled to reasonably effective assistance of counsel, thus a right established by the Sixth Amendment to the United States Constitution, applied to the States through the Fourteenth Amendment, and recognized in Art. I §10 of the Texas Constitution and Art. §1.05 of the Texas Code of Criminal Procedure. State v. Thomas, 768 S.W.2d 335, 336-37 (Tex.App.-Houston [14th Dist.] 1989); Ex Parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980). ~ Texas follows the standard ennuciated in Strickland, in deciding whether the applicant has recieved effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986). Under that standard the applicant must establish two things: (1) Counsel's performance was deficient; and, (2) the deficient performance prejudiced the applicant, if either of the lements is not established, the contention fails. Rico v. State, 707 S.W.2d 549, 556 (Tex.Crim.App.1983). An attorney has a professional duty to present all testimony and other evidence to support the defense of his client. Ex Parte Ybarra, supra at 946. A criminal defense attorney has a responsibility to seek out and do an interview of potential witnesses and the failure to do do is to be considered ineffective where the result is that any viable defense available to the accused is not advanced and the decision to call a witness is generally a matter of trial strategy, but the failure to interview a witness will be considered ineffective assistance of counsel when inaction precludes the accused from advancing a viable defense. There were these two witnesses that could testify that the accomplice witness lied to the court about the applicant's invlovement in the offense in which he was charged, and that testimony at trial would of helped to arrive at a different outcome. This reviewing Court will hold that if trial counsel would have secured the other two individuals he could have discredied the victim's and accomplice witnesses testimony. He never spoke to them or tried to have them subpeonad during the course of the trial and never sent anyone to talk to them. This reviewing court will then characterize that the failure to call any potential witnesses as a failure to adequately prepare for trial, and not as a strategic decision. Berry v. Morton, 100 F.3d 1089, 1100-01 (3rd Cir. 1996); and see also 42 Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3rd Cir. 1990). D. FAILED TO OBJECT TO EXTRANEOUS OFFENSE TESTIMONY The applicant contends that the record is full of extraneous offense testimony as announced in Ground For Review No. 6, in which there was never an objection by the trial counsel and this action caused an actual and substantial disadvantage of the applicant into recieving a fair trial. Extraneous offenses are inherently prejudicial and when counsel fails to object to numerous extraneous offense and prejudicial matters, counsel's is ineffective. See Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App. 1983); Cude v. State, 588 S.W.2d 895 (Tex.Crim.App.1979); Wenzy v. State, 855 S.W.2d 52, 58 (Tex.App.- Houston[14th Dist.] 1993). Generally drug evidencce has no relevance in a non-drug prosecution. See Couret v. State, 792 S.W.2d 106, 108 (Tex.Crim.App.1990). Drug evidence and threats as testified to in the instant case was .. then irrelevant. The first mention of drugs was by the accomplice witnesses testimony during the presentation of the State's case in chief. And that extraneous an prejudicial testimony was in direct violation of Tex.R.Evid., 404(b) and 403. It is a general rule that an accused may not be tried for some collateral crime of being a criminal in general. Tex.R.Evid., 404(b). Not every allegation of inefective assistance of counsel, in this case would justify a reversal. However/ then, the totality of the defense counsel's representation undermines the court's confidence in the conviction. The Court of Criminal Appeals has held that counsel is ineffective when he failed to object to extraneous offense testimony. In Montez v. State, 824 S.W.2d 308, 310 (Tex.App-San Antonio 1992) the Court held, that applicant did not recieve a fair trial, and the totality of trial counsel's assistance undermined the court's confidence in the outcome of the trial. Many of the factors exist in the present case. Specifically, trial counsel must be aware of the impact of the extraneous offenses and their admission should not be taken lightly. Even under the strict standard in Strickland, the court has no choice but to find defense counsel's ineffective assistance led to the introduction of damaging extraneous evidence such that the court's confidence in the result of the trial is undermined to the extent that the Court cannot state with reasonable certainity where the applicant was found guilty of the crimes charged or the extraneous bad-acts offered by the State. 43 Evidence of extraneous offense was improperly admitted, and reversal is required, where the probative value of the evidence was minimal and the prejudical impact high, the required intent for the offense could be infered from the content, so the State did not need to show the intent and the trial counsel was infact ineffective for not objecting to the testimony that was given. Castillo v. State, 910 S.W.2d 124 (Tex.App.-El Paso 1995). The rule excluding evidence of extraneous offense is based on the belief that although such evidence shows the applicant's propensity to criminal conduct, and generally its prejudicial effect overwhelms its probative value in determining whether the accused committed the crime for which he is on trial. In the face of a proper objection, evidence of other wrongful acts is not admissible to prove character of the person to establish that he acted accordingly regarding the alleged offense, "but in the instant case there was no objections vocalized." See Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Criro.App.1991); Lazcano v. State, 835 S.W.2d 654, 657 (Tex.App.-El Paso 1992, pet. ref'd). The applicant asserts that an extraneous offense may be admissible, however, if it has relevance apart from its tendency to prove character conformity therewith. Evidence which logically serves apart such purposes that are not objected to the jury will paint a picture in their mind that the applicant is common criminal with no future rehabilitation. The applicant's attorney at trial was ineffective for not objecting to the improper use of extraneous evidence where the applicant had no prior convictions for the offenses ttestified to and this error was not harmless. See e.g., Vetelo v. State, 8 S.W.3d 164 (Tex.App.-Waco 2000) Webb v. State, 36 S.W.3d 165 (Tex.App.-Houston[14th Dist.] 2000). The State did not give any notice of extraneous offenses and the applicant's attorney at trial did not object and harm is shown because the extraneous offenses improperly bolstered the the testimony of the accomplice witness and the danger is too great that the jury would give upward departure on the character evidence of this type and that is because the applicant might have commited extraneous bad acts before...he should be givne a larger sentence of the instant charge. This then created a actual and substantive disadvantage against the applicant and for it not being objected .to caused the trial counsel to be ineffective. E. FAILURE TO PRESERVE ERROR. 44 An exception to Strickland's presumption of strategy exist when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct of omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992); Weeks v. State, 894 S.W.2d 390, 392 (Tex.App.-Dallas 1994); Chavez v. State, 6 S.W.3d 66, 71 (Tex.App.-San Antonio 1999), holding counsel ineffective in light of such a record is not speculation becuase the deficient performance is confirmed by the appellate record. Vasquez, supra at 951; Weeks, supra at 392; Stone v. State, 17 S.W.3d 348, 350 (Tex.App. -Corpus Christi 2000). In other words, Strickland does not require deference when there is no concievable strategic purpose that would explain a trial counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 535 (5th Cir. 1985). In the exception stated earlier the court holds that when there are "certain exact circumstances that are so egregriously prejudiced...ineffective assistance of counsel will be presumed." The presumed prejudice is where there has been an actual breakdown in the adversarial process at trial it then becomes highly prejudicial and very harmful to the applicant. See Toomey v. Bunnell, 898 F.2d 741, 744 (9th Cir. 19990). The Supreme Court has held that [t]he adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate. Anders v. California, [citations omitted]. The right to the effective assistance of counsel is thus, the right to the accused to survive the crucible of a meaningful adversarial testing. [l]f the process loses its character as a confrontational match between adversaries, the constitutional guarantee is violated, [emphasis added]. In United States v. Cronic, [citations omitted], the Court recognized that there are "circumstances...so likely to prejudice thwe accused that the cost of litigating thier effect in a particular case is unjustified." Cronic, supra at 658. Th» Court identified that the complete denial of counsel or the deprivation of effective representation at a critical stage of an accused: "circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial the likelyhood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct at the trial. * 45 Cronic, supra at 659-660. Texas Rules of Appellate Procedure Article §33.1 provides: "that in order to then preserve a complaint for appellate review, a party must present the complaint and obtain a ruling." It is incumbent upon counsel to object at the earliest possible opportunity. Butler v. State/ 769 S.W.2d 234 (Tex.Crim. App. 1989). In order to effectively preserve error after objection is sustained, counsel must ask for an instruction to disregard and move for mistrial after the instruction is given. Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App. 1985). The applicant asserts that the trial counsel failed to preserve error in the record. Objection to Hearsay Objection to Hearsay Sustained Sustained Failed to ask for instruction Failed to ask for instruction Failed to ask for mistrial. Failed to ask for mistrial (RR4: 55). (RR4: 56). Objection to Hearsay and Specualtion Objection to leading questions Sustained Sustained Failed to request for instruction Falied to request for instruction Failed to request for mistrial. Failed to request for mistrial. (RR4: 53). (RR4: 202-204). The applicant avers that generally, an isolated failure to object to improper evidence in itself does not necessarily constitute ineffective assistance of counsel, but multiple instances to object and have the objection sustained and failed to get a ruling or ask for mistrial is ineffective assistance of counsel. See Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1985). It has been held that isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or then seperating out one portion of the trial counsel's performance for examination. Bridge/ supra at 571; Johnson v. State, 629 S.W.2d 731, 736 (Tex.Crim.App. 1981). Also/ representation is not ineffective simply because, in hindsight the attorney could have or even should have done something differently. Goodin v. State, 899 S.W.2d 387, 392 (Tex.App.-Houston{14th Dist.] 1995). Allegations of ineffective assistance1of counsel must be firmly founded in the record. See 46 Beheler v. State, 3 S.W.3d 182, 185-86 (Tex.App.-Fort Worth 1999). Applicant takes the position that the record is firmly founded in the record with many instances of ineffective assistance of counsel, i.e., in accordance with the above errors of cokmplaints which is so inherently prejudicial that so specific prejudice need be shown. In the instant case, it is clear that trial counsel was capable to properly preserve error, he failed in that duty as shown in the complaint above, and this created an actual and substantive disadvantage of applicant to recieving a fair trial and trial counsel should be found that h= denied his client a fair trial. F. FAILED TO REQUEST SPECIFIC INSTRUCTIONS IN THE JURY CHARGE The applicant avers that the trial counsel failed in his duty to request or raise the issue of alibi. Applicant had three (3) witnesses who testified at trial that stated that the applicant was at his residence at the time the crime was committed, and the trial counsel did raise the issue or even request and instruction on the alibi defensive theory- when the evidence is inconsistent and supports more than one defensive theory, the applicant is entitled to an instruction on every theory raised, > even if the defenses themselves are inconsistent and contradictory. Booth v. State, 679 S.W.2d 498, 501 (Tex.Crim.App.1984); Johnson v. State, 715 S.W.2d 402, 406-07 (Tex.App.-Houston[1st Dist.] 1986). There is nothing in Brown's records to suggest that he was not entitled to instructions on defensive theories if it was raised by the evidence. This reviewing court must consider al relevant information revealed by the record, including the entire jury charge, the States of the evidence, and the argument of counsel. VanBrackle v. State, 179 S.W.3d 708, 714 (Tex.App.-Austin 2005). The defense of alibi arises where there is evidence that the accused is at a place where he could not have been found guilty of participating in the offense. Arney v. State, 580 S.W.2d 836, 840 (Tex.Crim.App.1979). A defendant is entitled to a defensive instruction on every issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or also uncontradicted. Villareal v. State, 821 S.W.2d 682, 685 (Tex.App.-San Antonio 1991). Even though the applicant contends that alibi is not the type of defense that entitles a defendant to an istruction. See Holliman v. State, 879 S.W.2d 85, 87 (Tex.App.-Houston[14th Dist.]1994); Green v. State, 928 S.W.2d 119, 125 (Tex.App.-San Anotnio 1996). However, applicant avers that he is entitled to a 47 defensive theory. Also, applicant may rely "on more than one defensive theory." In fact, a "applicant is entitled to submission of every defensive issue raised by the evidence. Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) Party v. State, 994 S.W.2d 215, 219 (Tex.App.-San Antonio 1999). Alibi is not a statutory defense and it is not an affirmative defense. Alibi is not a defense within the accurate meaning of the word, but is a fact shown in rebuttal of the State's evidence/ therefore, it does not demand a specific instruction from the court. Furthermore, this reviewing Court will hiold that failing to secure an instruction on alibi is not necessarily ineffective assistance of counsel. Zuniga v. State, 733 S.W.2d 594, 598-99 (Tex. App-San Antonio 1987). Therefore, in this case, defense counsel's failure to request an instruction on alibi was not, by itself, ineffective assistance of counsel. However, given that applicant's defense hinged on alibi, it is difficult to understand why any competent defense counsel would fail to ab least try to get an alibi instruction. The Court of Criminal Appeals has held for many decades that "when evidence of collateral crimes are introduced for one of the various purposes, the jury should be instructed that they cannot consider against the applicant such collateral crimes/ unless it has been shown to their satisfaction that the accused is guilty thereof." Lankford v. State, 248 S.W. 389 (1923). In other words, a jury should be instructed that they are not to consider any extraneous acts evidence unless they believe beyond a reasonable doubt that the applicant committed the act. See Harrel v. State, 884 S.W.2d 154, 157 (Tex.Crim.App.1994). "If a defendant, during the guilt/innocence phase, ask for a instruction to the jury on the standard of proof required for the admittance of extraneous offenses, the defendant is entitled to that instruction." Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996). Therefore, _if applicant's counsel had requested the jury to be instructed that they could not consider the extraneous act evidence unless they believed beyond a reasonable doubt that the applicant committed those acts, the requested charge should have been given. Likewise, when the State is permitted to introduce evidence of applicant's extraneous bad acts for a limiting purpose, the applicant also has the burden of requesting an instruction limiting consideration of those acts. See Abnor v. State, 808 S.W.2d 476, 478 (Tex.Crim.App.1991). Applicant has the burden 48 of requesting a limiting instruction at the time the evidence is admitted as well as requesting a limiting instruction in the charge. See Garcia v. State, 887 S.W.2d 863, 878 (Tex.Crim.App.1994). If a applicant so Request this instruction, the trial court errs in not giving the instruction. The state will argue that the extraneous acts were admissible for the limiting purpose of showing state of mind, intent, relationship, motive, and to rebut defensive theories. Therefore, if trial counsel had requested that the jury be instructed that they could consider the extraneous acts evidence only if for limiting purposes for which it was offered, the trial court would have been required to give the requested limiting instruction. See George v. State, 890 S.W.2d.73, 76 (Tex.GrinuApp.1994)(holds "if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offenses evidence that was admitted for a limiting purpose unless it believes beyond a reasonable doubt that [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4048988. Public record. Not legal advice.