# Brown, Kenneth Ray

> Court of Appeals of Texas · February 23, 2015

URL: https://www.frixlaw.com/law-library/cases/4052846

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** February 23, 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/4052846

## Opinion text

33 /53(/0’11

FEBRUARY 17, 2015

KENNEI‘H RAY BROwN #334618
M©T"@N DE HE ED JAMES v. ALLRED UNIT

DATE: 5 2101 FM 369 N
BY- 9 c IOWA PARK, TX 76367
RECENED lN
COURT OF CR\M|NAL APPEALS
CLERK OFFICE
COURT OF CRIMINAL APPEALS [FEB 23 2015

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

Ar@@v Awsua, Gf\@v‘k

Re: TRIAL COURT NUMBER 34845555F EX PAKI'E KE:NNEIH RAY. BROWN.
wRIT NUMBER wR-33,336-11

cLE:RK ,

ENCI_DSED IS A MOI`ION FOR RELIEF FROM TI~IE ADJUDICATION JUDGMENT TO BE F`ILED
FOR T[-IE COURT'S CONSIDERATION.
PLEASE INFORM ME UPON THE F.I_LING OF THE ENCLOSED MOTION THEREPO THE ABOVE STYLED

/Maé/M{ )
@-%“

chILED `:

ONE OF ONE PAGE

,-'\' '\(

IN THE
COURT`OF CRIMINAL APPEALS

EX PARTE § wle NUMB]::R--wR-33,336-11
, § TRIAL coURT NUMBER_-3481»55-F
KENNEI‘H RAY BRowN, - § - .

Movant.

MOTION FOR RELIEF FROM THE ADJUDICATION JUDGMENT

This motion is brought Pro Se by KENNETH RAY BROWN a State Prisoner of Texas
herein called "BROWN or MOVANT" and submitted this motion pursuant to the Rules
of Texas Courts.

The PRECISE JUDGMENT that this motion concerns to the above styled and numbered
is the Adjudication Judgment under cause number 10-83-095-CR. Although this motion
for relief and the 11.07 habeas corpus concerns VIOLATIONS of State and Federal
constitutional rights to counsel representation at all_critical stag§_of the
~ criminal process. And, evidence of facts and circumstances from the OFFICIAL COURT,
RECORDS that reflects/revers;s §§ GOUNSEL provided for Brown following a State's
requested and granted Petition for Discretionary Review (PDR). Therefore, by law
all preceeding following the granted State's PDR where the records are void of
counsel representing Brown, by State and Federal Law such void of counsel represent~
_ation CONSTITUTES A VOID RESULIING JUDGMENT. As such is presented in Brown's current
11,07 application for relief; However, since the DISTRICT AITORNEY and PRESIDING
JUDGE both of Harris County, Texas dogs got recognizes the UNITED STATES CONSTITUTION
SIXTH AMENDMENT RIGHT TO COUNSEL, and/or the denial of counsel is the EXCEPTION to
any procedural bar. See State's Original Answer and Recommendation. lt is through
this motion for relief from the adjudication judgment where previous filed 11.07

habeas corpus, the District Attorney and Presiding Judge, same as the Sixth Amendment

QQ§§ not recognizes the defendant/appellant's rights to DUE PROCESS pursuant to the
FOURTEENTH AMENDMENT. This HONORABLE COURT has always considered and recognized
clear facts and circumstances from the OFFICIAL COURT RECORDS that reflects/reveals
violations of constitutional rights pursuant to the Sixth and Fourteenth Amendments
may result in any obtained judgment, A VOID JUDGMENT. Thereby, any resulting judgment
from an 11.07 habeas corpus filed [AS IN BROWN'S CASEl to a void.judgment, is also
considered by law a void judgment.`

Therefore, this motion for relief concerns violations of the Sixth.Amendment as
presented in Brown's current 11.07 application, and therewith violations of the
Fourteenth Amendment where facts and circumstances from the court records reflects/
reveals Brown was deprived of his liberty without the DUE PROCESS OF LAW. Thusj this
Court according to justice and the fairness of justice, and the fairness of Texas'

Courts7 THIS HONORABLE COURT OF CRIMINAL APPEALS CANNOT REFUSE THE REQUESTED RELIEF

IN THIS MOTION AND IN BROWN'S CURRENT 11.07 APPLICATION. For reasons of the following.

I.

Brown/Movant moves and urges this Honorable Court to grant the relief sought in
the current 11.07 habeas corpus filed in the Court under WR-33,336-11. Which is
xfiled pursuant to the VOID JUDGMENT EXCEPTION TO THE GENERAL RULE. Thereby, as to
this motion, granting relief from the adjudication judgment under cause number
10-83~095-CR. For it is clear from the court records, the reliance of the affirmed
adjudication judgment as presented in the 11.07 application is clearly repugnant,
and the affirmed judgment is clearly¢jnconsistent with this Court's holdings as to

what constitutes a void judgment..See §§§,664 and SPAULDING,687 S.W.Zd at 745.

II.

AS in Brown's cause where an arguable alleged VOID JUDGMENT is presented and

WHEREBY BROWN IS INCARCERATION FOR LIFE UNDER SUCH VOID JUDGMENT. Ihis Honorable

f Court should be compelled, as a matter of public policy, and for the sake of justice
as to providing sufficient openly rulings [law] on the facts and circumstances from
the official court records to ensure that State and Federal constitutional rights, or
protections are give effects pursuant to the Sixth Amendment right to counsel and the

Fourteenth Amendment Due Process and Equal Protection.

III.

As presented in Brown's current 11.07 application where there are no proof of
counsel appointed for him either on papers of his case, or on docket sheet following
the granted State' s PDR. lt is presumed there was a denial of Brown' s right to
counsel representation as being an indigent defendant/appellant§ However, it is
without any doubts from the official court records as in Brown's direct appeal process
that the State was allowed to challenge his successful reversal of trial court's
conviction without Court of Criminal Appeals, or Tenth Court of Appeals nor 248th
District Court (trial court) providing him with counsel after discretionary appeal
was granted to the State. Brown as being indigent at the time and without the benefits
of counsel clearly was unable to make any kind of reasonable decisions as to the law
concerning the consequences of his reinstated conviction and innocence as to defend-

ing his liberty against the State resource. See BLANKENSHIPleS F.3d 312 at 317.

IV.

Brown/Movant moves and urges this Honorable Court to grant his current 11. 07 writ
and/or grant relief according to this motion from the adjudication judgment that
affirmed the trial court' s conviction. For reason(s) the APPELLATE level thereto the
first direct appeal as a matter of right. See Texas Code of Criminal ANN. Article¥é
44.02. The right to Counsel, both at trial and appellate level, is recognized not

for it own sake, but because of the effect that it has on the ability of the accused

to receive a fair judgment.
V.

Evidence from the court records indicates same as following the State's granted
PDR. There are np_p£ggf_of counsel appointed either on papers of the case, or on
decket sheet following a £gman§_by the Court of Criminal Appeals of the successful
direct appeal reversal of trial courtis conviction. Same as following the State's
granted PDR. lt.is presumed there was a_d§nial of Brown's right to appointment.of
counsel representation whereby State law the Court of Criminal Appeals' r§m§nd of
the conviction reinstated the appeal process back to the first level of the appeal.
At Such Appellate level clearly entitled Brown to appointment of counsel due to his
indigent status. See Tex.Code Crim.Proc.Ann. art. 44.02, 1.051
that affirmed the trial court's conviction. By law, Brown would show from the exhibits
(court records) attached to this motion VOILATIONS of State Law (STATUTES) that
'protects, provides and ensures the defendant/appellant with the FOURTEENTH.Amendment
Due Process and Equal Protection. Which violations of these constitutional rights
would render any resulting judgment, a VOID_JUDGMENT. Therefore, evidence from the
OFFICIAL COURT RECORDS INDICATES: l

(1), Following the State's requested and granted PDR. The records indicates the

Court and/or Clerk of Court of Criminal Appeals fail§d to send ngti§§ of the granted
PDR pursuant to TtR.A.P. 69.4(b). Records indicates the Court and/or trial court
'fail§d to appoint counsel for Brown pursuant to Tex.Code Crim.Proc.Ann. art. 1.051
(d)(Z) and Court fail§d to require Brown and State to resubmit briefs pursuant to
v T.R.A.P. rules 70.l, 70.2 and 70.3 before remanding the cause.
Each above stated state law or State Statutes are designed and designated by `
Texas Legislators under facts and circumstances as to a granted-PDR by the Court in
order to protect, provide and ensure the defendant/appellant-with Sixth Amendment

right to counsel and Fourteenth Amendment due process of the law as to notice and

the opportunity to place before_the»court'any objections, and the equal protection

6 .

under similarly situated.

(2), Following the remand by Court of Criminal Appeals. The records indicates §§
§§f§f filed on Brown's behalf within 30 days after the remand. Thusy Tenth Court of
bAppeals and/or Clerk faff§d to comply with the provisions of T.R.A.P. 38§8(b). Also,
records indicates the Appellate Court and/or trial court failed to appoint counsel
for Brown pursuant to Tex.Code Crim.Proc.Ann. art. 1.051(d)(1) and 1.051(c) where
the remand reinstated the direct appeal. See article 44.02. And, court records
indicates, Tenth Court of Appeals f§fl§d to require Brown and State to resubmit
briefs in the court pursuant to T.R;A.P. rules 38.1(h) and 38.2(a)(1) before the
Court affirmed the adjudication judgment under cause number 10-83-095-CR.

` Each above stated state rule or State Statutes are designed and desigated by
Texas legislators under facts and circumstances as to any remand by Court of
Criminal Appeals in order to protect, provide and ensure the defendant/appellant
with the Sixt Amendment right to counsel and Fourteenth Amendment due process of

the law as to notice and equal protection under similarly situated.

IX.

,,

As To EACH ABovE sTATE PROCEEDING THEREWITH stair LAw oR_sTATE sTATUTEs THAT RE-

_ PRESENTS PRocEDURAL DUE PROCESS AND EQUAL PROTECTION As To NoTIcE AND A MEANINGFUL
_oPPoRTUNITY To BE HEARD`IN A coURT oF LAW IN oRDER To DEFEND oNE's_INNocENcE. BUT,
THE RIGHT To BE HEARD onLD BE, IN MANY cAsEs, oF LITTLE AVAIL iF IT DID NoT coM-
PREHEND THE_RIGHT To BE HEARD BY coUNsEL. sEE PowELL v. ALABAMA, 237 U.s. 45, 68-69,

58 s;ct. 55, 64, 77 L.Ed. 148(1932).
x.

In support of this motion for relief from the adjudication judgment- The United
States Supreme Court ruled: "That a person cannot incur the loss of liberty for an

offense without notice and a meaningful opportunity to defend." Concluding that

7

these principles applied on appeal as well as trial. See JACKSON,99 S.Ct§ 2781 at
2786 (1979). .Under the facts and circumstances that are supported by the
official court records. The stated above ruling by the Supreme Court is directly
related to this motion for relief as to all the many failures thereto the Court(s)
before Brown was deprived of his liberty without the due process of law§

This HCNORABLE COURT OF CRIMINAL APPEALS' integrity, and the fairness of Texas
Judicial System would not allow this Court to intentionally or inadvertently
overlook, misplace or disregard facts and circumstances from the court records that
reflects/reveals Brown was imprison for life; or his fate was determined pursuant
to a new state law [at the time] of rules that Brown never, as to this date, have
had the opportunity to be heard as to defending himself from the new state law that
actually deprived him of liberty and imprison him for life. Thus, as proof from the
records, Brown incurred the loss of his liberty without notice and a meaningful
Qppoi~tunity to defehd. THIS HoNoRABLE coURr~oF cRIMINAL APPEAis' CoMPLEI'ENEsS, ~
UNIMPAIRED CONDITION OF FAIRNESS AND SOUNDNESS THERETO ITS HONESTY AND SINCERITY,
etc. cannot refuse Brown the requested relief in his current 11.07 writ of habeas
corpus application and as to this motion for relief. Whereby all submitted EXHIBIIS
of court records indicates the new state rule of law pursuant to the harmless error

rule standards that decided Brown's fate came into effect some gf_months after

Brown filed-the original APPELLANT'S BRIEF on direct appeal. Which brief by law;
several months before the new state law of standards for harmless error came into
effect, the brief accomplished the original reversal of trial court's conviction by
the Tenth Court of Appeals. All court records indicates Brown filed the Appellant's
Brief on MARCH 21z l983 in the Court of Appeals at Houston, Texas. On MAY..Az 1983;
The Court transferred the appeal to the Tenth Court of Appeals at Waco, Texas. This
Court of Appeals on DECEMBER 27, 1984 reversed and remanded the trial court's l
conviction. ¢*”?_¢»’/t
EHH RAY BROWN

Service has been accomplished by sending a copy of this motion to the following

address:
DISTRICT ATTORNEY OFFICE

HARRIS.GOUNTY, TEXAS
1201 FRANKLIN, sUITE 600
HoUsIoN, TEXAs 77002

sIGNED this 17th day Of February, 2015.

Respectfully submitted,

" /Mz/
KENNETH RAY BROWN #334618
JAMES v. ALLRED UNIT
2101 FM 369 N ,
lowA PARK', TX 76367

ccfiled:

10

SUPPORTING EXHIBITS SUBMITTED AS EVIDENCE

A. TEXAS COURT OF CRlMINAL APPEALS DOCKET SHEET PD-0182-85.

B. TEXAS COURT OF`CRIMINAL APPEALS' OPINION ON STATE'S PETlTl0N
FOR DISCERTIONARY REVIEW.

C. TEXAS TENTH COURT OF APPEALS DOCKET SHEET 10~83"095?CR_

D. TEXAS TENTH COURT OF APPEALS' OPINION THAT AFFlRMED THE
ADJUDICATION JUDGMENT UNDER CAUSE NUMBER 10-83-095-CR.

E. 248th DlSTRlCT COURT'S ORDER APPOINTING COUNSEL ON APPEAL.
F. TEXAS TENTH COURT OF APPEALS CLERKFS LETTER.

G. TEXAS TENTH COURT OF APPEALS'.ORIGINAL OPlNlON THAT REVERSED AND
REMANDED CAUSE NUMBER 10-83-095-CR.

R. APPELLANT'S BRIEF ON APPEAL---THAT ORIGINALLY REVERSED THE
TRIAL COURT'S CONVICTION.

L. STATE'S PETITION FOR DISCRTIONARY REVIEW.

Respectfully submitted;

CCFILED:

H§" case search Resulzs on case # PD-0132-85

Add to CaseMaif

f Case In_formation:_

case number: -Po~oisz-ss

~~ ~ né‘te wear _ " 7 ' ."2115/1985‘ *
Casé Type: . . PDR .
Stvi€= ` Brown, Kennet#\ Ray ‘
\l-l

' ;'Case Events:

` - Date` "_""-` " ` EventType` ' 4 7
‘ § 12/12120'03 . com REQUEST PDR
§ ' -5/20/2008' . `ooPY-REQUEST.-»PDR»
§ 1 515/2008 .Mzsc,oocuMENT FoRAPDR -
§ 12/11/1987 MANDATE lssD
§ _ 11/2511937 oeiNonlsso - ¢~
§ _ 2/5;1986 sosa/men ` __ .- -` "
§ 1/5;1986 » sET Foa susmzs k .
§ _ 1/2¢1986 _. _ No BR!EF FILED . » - Appenan:
§ 1212/1 935 No BR;EF Fu_ED state
§ . 1012/1985 E)GRAREMARKS '
§ 1050/1985 P:JR olsP _ ’ j State ,
§ 9;25/1985 woRKuP coMPLETE state
§ 517/1985 ' 4404H BAIL _ 7 Pro se
§ 5/6,'1985 ms BAxL miss , Pm se
l § 3/19/'1935 No REsPoNsE ntsb ' » Appaan:
§§ 2}’15!1985 f 'PDRHF!LED ‘ ; State Pmsecuii'ng Attumey
"C`afé?`rid`ax"s':""*' , k `” ~“ "
__ same ~ ' '-':'F¢alehdéélt§pe- " -»
- §` , 1201/1987 ` ' " sToRED'
Parties: 1
,_ Party ‘ . - ~ Party Type '
§ ' Bmwn, Kennem say ' Appéce\f{wds)prpe!*ani--
§ ’ sYATE oF nims state

Court of 'Appeals Case Information:

coA case Nu;_nber: 10-83-00095~CR
coA~Dispasmo¢i: _ ». 4 _
opinion cite: Rev & Rem\12-27-84 \
\
`\
\`.

NO. 182-85, v. ' _ v ' unnic£aw€ulstrict or rexas

THE sTATE 012 TEXAS, , (Harr~is:county) , ;;_,

'Appellee A\ Q/fl’ 1};:§1;;;
§L,H 15 ' `

PINION 'ON STATE'S
PETITION FOR DISCRETIONARY REVIEW

The jury was charged on nurder'an&;£h§¢iesse§;ingig§g; ;; ;;;i;
offense of voluntary manslaughter. AEter“deliberating,vthe~gury §a:_ g

found appellant guilty of murder. Bisdpunishmentrwenhanced-by_a;e---_ w;

|-1l
i.]

‘_On_December 27, 1984, the Waco Court;o E~Appealsfreve ed :§i §§5@
'appellant's conviction after finding§§pg§§g§§tal@errc&£§& th&:z §in:ig
jury 'charge. Specifically, the appeal;s.;;_b_a_'§>: r~;:»;z.z;--"-_:_-z
rubio v. State, 675 S. W. 2d 749 (Tex_ Cr;App.:l984), foun&¢theems:: ;¢;
ac asgsw§e£ecti@ because it failed to require the state to -
disprove the lack of sudden passion in the paragraph of the

charge which applied the/law of murder to the facts of the case.

\

cber~BG:lJSBS: we granted the State' s petition for
discretionary review to consider the issue.- Since the Court of `
prpeals handed down its opinion in this_case, this Court decided
Aimaxiza v. state; 686 s.w.zd 157 ('fex.cr'.App. 1,985)(op,inion on
'Rehearing). In Almanza, we'set out tests to be used.when there
was_ either objected- to error or llnobjected to error» in the
court's charge to the jury. See also Castillo-Fuentes v. State,'
707 S.W.Zd 559 (Tex;Cr.App. 1986); Lawrence v. State, 700
S.W.Zd 208 (Tex.Cr;App,,lSSS); Moore v._State, 694 S.W.Zd 528
v_('Z_l‘e);.Cr.A___p,._1985).,,,,.,_____...1,,. A k

Because the Court of Appeals did not have the benefit cia

Almanza when it revie ed appellant' s case, we will remand this

.cause`to that court so that.it may.apply Almanza to appellant s.

`Brown - 2

4 ?T ””””””” enntention concerning the allegea `unobjected§?to¥HerIor€ifp ?the-e§? ;H

: court's chérgei* Shenks v. State, 7t&zS:W§ZdEBSSEJTex§Qn£Kng

1986).

w |
H:h
Hfls

"”It is so otdered; _e n
)
vPer Curiam

(Delivered November 25, 1987) ‘=H;eev=;ee _v-“-e~

En Banc'

Do Not Publish

Presiding Judge Onion and Judge Teague dissent to the remand

‘ F',";}"-`F~v _

¢..o:E.:.”_~:". _. '1_:

Permaueot Record PreSBWB¢I%FEN-m
BIKBUIRIE)

- Amount of Appea| Bond:
` Y€$ lncarce`rated

11 §§

couRT oF APPEALS "
SUPREME JuchlAL DlsTRlcT--___

'Punishmer_lt Assessedf` L`1_1:e " _`

»» _ v:__\r__\r__~

- » _- _€"¢€_§_!

:§S Exhlblts § '_" § §

Appea!s> Consolidated Under This Case:

APPELLANT/THE APPLchNT; §

D '
Percy F.or‘eman

_ _Foreman & DeGeur~in

Fann1 n, Su1te l-l-H-_z»"§@

: _Houston, Texas "7‘?'602_770/?

Rl§na"ld G. Mock
rchett° a Mock

Houston, Texa$ 77004 3_203 Aust1'n St. _

ATroRNEYs ,¢_/ _,
APPELLEE/THE sTATE:

/71>\D

~- John B. Ho1 mes, dr _ » - -
D1str1ct Attorney -~~-~~--»~- ~~
201 Fahnin, Suite 200

_-Houston, Texas 770_02_

` _\J_, $1dn¢y C§@w~Tey, Ass..~t_;.'? 1313’¢y _Atty`

:_\_

L.C"S/-

ear 7]`!!-'~

____- __ _ t _, __»_~_;»¢ " ~"~MEMoRANDuM ENTRlEs'

Date

__ ' _ _ 1 - ' § ::: DATE
FluNGs AND oRDERS . _ _ ~ _ M'NUTE _ PARTlEs

"NOT|

__ ._,ENTR_Y _
61" me
o ' me
o _
' or

t of Facts 7 Vo1umes
Mtn for Ext of Time to _ e
Mtn for Ext of Time to F e
or t.o me
_ r' men
ant s

._S a__

n r scre- 7 ew y
ubm1 . ocket end_ 1a

AFFIRMEo 21._dANuARY 1988
, No. 10-83-095_cn a
Trial Court ' \ ”'\D
# 348,455 » é/}/A

31,__ ~~c\ _\.;. _…m_

' \UPER’s oA'rH oN APPE_»""x

. _ ,/ - 1
CAUSE NO; e.__%_“i\_§”>"\_§>_ oFFENsE; K\\\-\§\\)\
THE sTATE oF TEXAS ' 12 §§LA/msrnlc'r COURT
vs. oF

\MM RC~"\ \:)\Jd’~§'\ HARRIS COUNTY, TEXAS

TO _THE HONORABLE JUI§.§ oF SAID CoURT-
Now CoMEs N\N\\§~R/Q\ §§@~1§\@¢&\ ,Derendant in the above styled and

n\lmbpred r\al_]$e_and .re Spentfnll.v petitions thé§\ rf_ te_annr_unf .Cnun$nl__ fr\ repr:l:cer\t_ him. ln Said felgn\l __

__ `~. ...-.. - rvr .... v

cause and would show othe Court that he ls too poor to _employ counsel, on appeal.

Defendant further states under oath that defendant is without funds, property or income; that
because of his poverty he is unable to. pay for a transcript of the evidence which is necessary to be
filed with the'Court of Criminal Appeals of the State of Texas;

WHEREFORE, he prays that the Court appoint counsel to represent him on appeal and that
the Court direct th_e Court Reporter to prepare a statement of facts, as provided by law, in question

and answer form, for use on appeal.
%/ ,>¢~///M

DEFENDANT

sUBSCRIBED AND sWoRN 10 before me, this `;\_DISTRICT coURT
6a 410.]__’ 91 11 ' HARRIS COUNTY TEXAS
_W{$S)_ __90°~;:`;` "£:>

pOIN'I`ING COUNSEL ON APPEAL

- ' `:" \%’\->`3` 19% l,-it- appearing
to the Court that the above n§in§d defe nt has executed an affidavit statinAg that he' ls without counsel
and is too poor to employ counsel, it is orde ed that the attorney listed below is appointed to represent
the above named defendant 1n said cause, on appeal.

@Ql\ w®'\_\§ ;"\§

ATTORNEY
LQ §§ Q\ )§ed~»~\.n\>~h’\% (D`\ D`CK l'
ADDRESS
Q»R\ §§ _77@@§\
CITY _ STATE ZIP

};b~a©ek

l
1

ORDER TO PREPARE STATEMEN'I` OF_ FACTS ON APPEAL

This the \\Q§§\ay 'of ‘ W 19 after hearing .

testimony on the above affidavit and it appearing that the defendant ls entitll:d to the relief prayed for,
it is _ORDERED that the Court Reporter of this Court prepare a statement of facts in question and _
answer form of the testimony in said cause. lt is further _ORDERED that the clerk of this Court mail __

a copy of this Order to the Court Reporter: ' \" Texas767?§`132?'5.~_-:‘?¢=*-"5}2111')~}2;93. l ‘
. Bill Vmwe , z - ' . Ph'ci<‘*'*'k‘k*i**

`From 24Sth audi¢iai nistri¢t.court
` Harris County, Texas

0 P l N I-O N
* * * f t
This is an appeai by defendant Brown from conviction for murder for
which he was asses$ed iife imprisonment in the Texas Department_of Ccr'
rections.
Appeiiant appeais on 3.Grddnd$ of Error.
' Ground.l asserts the indictment iS fundamentally defective in nqi
aiiéging a generéi cnipabie'denta]'state in the second par;graph.
This does not render the indictment defective, LugO-Lugo v. State,
Ct. Crim. Appis, 650 S.N.Zd 72.
§r€wr@ 3 i?»nvcrru?ed.
Ground 3 asserts error in the charge permitting Cdnviction nn iess
pr:ci than required by the indictment.
`The charge uses the phrase “Shoot at“ whereas the indictment states
“shot“. There was no objection id the charge, and the comn]aint was

\

»~ -`.~.`

V.@;

63

Moreover, the inclusion of the word "at" was not error calculated to
injure the rights of appellant nor was trial rendered unfair thereby-
pierscn v; state, 644 s.w.zd 31 (Tex,npp.--Houston [14th oist.] 1932,
review ref‘d). we find no error. v

Ground 3 is overruled.

'Sroend 2 asserts the court“s charge is fendamentally defective for

»failing to require she State to disprove lack of Sudden passion in the

paragraph of the charge when applying the law of murder to the facts of the
case. t
The appellant relies on Cobarrubio v. State, Ct. Crim. Appls, 675
S.N.an 749, pending (at time of-filing of appellantls briefj-on-State’s
motion to grant leave to file motion for rehearing, in support of his
contention that the complained of portion of the charge was iundamentelly
EFY`OF?€OUS. _ l
The State in its reply_briei states: "The final decision-of the Court
of Criminsl preals in such case will be dispositive of this ground of
error$‘ y " l _ n n j n
*Sn September.Z$,'lSS¢, the Court of Criminal-Appeals denied the
tate's motion ior leave to file motion for rehearing in Cobarrubia.
_ Ground 2 is sustained which requires a reversal.

REvERsEp a REMANpED

` FRANK G. MCDONALD
00 NUT PUBLISH _ _ `Chief Justice

fe 10_-83- 0 9 5 -CR

THE COURT OF APPEALS
FIRST SUPREME-JUDICIAL DISTRICT

`HOUSToN, TEXAS
é\/l/Acié["(_\`

KENNETH RAY BROWN,
Appellant,

vs; ~ : `~APPEAL NOL 01-82-00453~CR

THE STATE OF TEXAS,
Appellee.

1 APPELLANT'S-BRIEF ON APPEAL

b

Appeal from Cause NO. 348,455 in &he
248th Judicial District Courtl
Houston, Texas g

FOREMAN a DeGEUREN
Percy Foreman
‘ State Bar NO. 07254000
/' . 609 Fannin, Suite 1111
Houston; Texas 57002
(713) 224-9321~§

""`j§IE-T¢_____ BONNEY a MOCK
couRToFIZ\pI,S}ALS Ronald'G. Mock ,
TEHN§FMH;WRHS ‘ State Bar NO{ 14@42700
‘ E '?: `609 Fannin, Suitp 2129
MAy 41983 Houst»on, Texas j77002

(713) 223-2660

ROBERT '§
G'W“T“'CERK _ ATTORNEYS ON APREAL ONLY

I N D E X

Pagez

TABLE OF AUTHORITIES......w.............,...;;..... ..... ii
sTATsMENT oF THE NATURE oE THE CAsE..........¢.......... l21
sTATEMENT oF_FACTs...-.....§.................L.......... 2
GRoUND oF ERROR No. l;.;....s...,.......-....¢.......... 5

The conviction should be reversed because the

indictment is fundamentally defective in not

alleging a culpable mental state in paragraph

_twO.
GRoUND‘oF ERRoR No. 2;.......................§.........; 6

The conviction should be reversed because the

jury charge is fundamentally defective in that

it does not place on the State the burden of

disproving the lack of sudden passion in the

paragraph of the Charge applying the law of

murder to the facts of the case.
cRoUND or ERRoR No. 3....;...,...............L.......... 9

The conviction should be reversed because the
jury charge is fundamentally defective in that

it authorized a conviction if the jury found

from the evidence that Appellant did, with intent
to cause Steve`L. Binder serious bodilyiinjury,
shoot at Steve L. Binder, whereas the indictment
alleged in paragraph two that Appellant intended
to cause serious bodily injury to Steve L. Binder
and that he shot him with a pistol. '

CoNcLUsIoN AND PRAYER.;........;............,........-...1 10

t /'#
'"\ `;)z 1 »i

NO. 10-83#095-CR

TO THE COURT OF CRIMINAL APPEALS

oF THE STATE.oF TEXAS

KENNETH RAY BRowN, Appeliant
V.

THE sTATE oF TEXAS, appellee
Appeal from HARRIS County`

`ir~k'k**'k

STATE'S lPETI'I'ION FOR DISCRETTONARY'!REVTEW

TENTH SUPREME JUDICIAL DISTRICT O:F TEXAS

\

l

HH.ED lN

WUTMGMHMLHEMS
FEB 15l985

.Th¢md$ -§-Gwe, C§erk

AND "
BRIEF IN SUPPORT THEREOF l

****'k'k

FROM THE
AT wACO

ROBERT HUTTASH¢ c
State Proseouting Attorney
Bar I. D. No. 10363000`§

vALFRED WALKER 5
First Assistant State's Attorney
Bar I. D. No. 20693000

P. o. sex 12405
Austin, Texas 787ll
512-475-4581

FH£E)B§
coURonAPPEALs
Tenth District-Waco, Texas

rea : 2335

sonam <;. wAns, cLF.RK/z

'

I.

II'¢

III.

IV.

SQBQEQT INDEX

Statement of the case.........r........., ....... ......,l

Statement of the Procedural History...... ...... .......°2
Questions for Review....................J.... ...... ...12

(l) In a murder case, when the issue of voluntary
manslaughter is raised, i.e., when the issue of whether
the defendant was acting under the immediate influence
of sudden passion arising from adequate cause is
raised, does a trial judge commit fundamentgl_errgr by
failing to submit that issue as a part of the State s
burden of proof in the paragraph of the jury charge
which applies the law of murder to the facts?

. (2) Should this Court's decision in Cobarrubio v.
State, 675 S. W. 2d 749 (Tex. Cr. App. 1983, rehearing
denied Sept. 26,1984) be overruled or at least
modified and clarified with respect to the 'fundamental

'error' aspect of the case?

`(3) »Should this Court's decision in Jenkins v.
State, Nos. 64,000-64,004 (Tex.Cr.App., Feb. 16, 1983,

L§h§§;ing_pending) be set aside and/or overruled?

ReaSOnS for Review. . . l . . l . . l . . . l . ° . . . . . . l- l . . . l . l ' . . ' l ’ l3
Argument and Authorities...............................4
Prayer for Relief. I l I l ‘|I l . 1 I l l . l - . 1 l .. 1 . l l . l . . l . l . l . .-¢ . 04

Certificate of Service .................,..............6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4052846. Public record. Not legal advice.