Donovan Dwight Simms v. State

gj September 31 / 2015

Donovan Dwight Simms

c/o 9601 SPUR 591 (NOT A DOMOCILE)

Amarillo, Texas Republic [near 79107-960$] 1srcou"~e°IN

To: First Court of Appeals of Texas Hoosro°;^Ls

tJMs

Office of the Clerk SEP %£ ?f].

301 Fannin St. c U/i

Houston, Texas 77002-20^6 RIStophEr a

Re: INFORMATION/CLERIFICATION REQUEST^..cMjSE No. 01-15-00763-CR,

(Trial Court No.: 1056045, 230th Dist. Court, Harris County)

Dear Clerk;

Hello, I am the above named person and cause (Simms v. STATE). In a letter

from this office (see attached), your office gave all parties concearned a

'Notice of Appeal' being filed on 8/21/15 and did instruct that "the complete

record is due within 60 days, or August 07, 2006."

Would you please clarify for me the reason for an "or" date that is already

nine (9) years pat due?.-, or. . is this a simple clerical error?

Futhermore, your office stated in the 9/8/15 letter that, "The Court's

records do not reflect that a post judgement motion was filed."

Would you please clarify this for me, whether or not this court already

has some kind of "incomplete" record filed with the office by the Harris County

District Clerk's Office?

Or, is this office now calling for the complete record to be sent?

If this office already has some kind of record would you please send me

a 'Table of contents' of what is already in your possession, as to the instant

action?

And, please notify me, as to what all is filed with the court. I am

presently pro per and imprisoned and am completely unable to review the "record"

in your office-

I look forward to hearing from this office, thank you for your time and

patience, Good Day.

/Vk/e tJ /we e.Jse euclesd *Ccfyoffa /cesJj^gweAJ-l- Sincerely,

T&he fJ'kJ ;hj Me eiLoVe <^«^^ ///^ieve.. W ,Donovan Dwight Simms^

Pro Per

cc: File

encl...

DDS/CAP

Sherry Radack Christopher A. Prine

Chief Justice Clerk of the Court

Terry Jennings Janet Williams

Evelyn Keyes Chief Staff Attorney

Laura Carter Higley

Jane Bland

Michael Massengale

Court of Appeals Phone: 713-274-2700

Fax: 713-755-8131

Harvey Brown

First District www.txcourts.gov/lstcoa.aspx

Rebeca Huddle

Russell Lloyd 301 Fannin Street

Justices

Houston, Texas 77002-2066

September8, 2015

Alan Curry Donovan Dwight Simms

Chief Prosecutor, Appellate Division TDCJ #1375638

Harris County District Attorney's Office Clements Unit

1.201 Frankiin Ste 600 9601 Spur 591

Houston, TX 77002-1923 Amarillo, TX 79107-9606

* DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 01-15-00763-CR Trial Court Case Number: 1056045

Style: Donovan Dwight Simms v. The State of Texas

The Court has received a copy of the notice of appeal in this trial court case.

The notice of appeal was fijed August 21, 2015. The Court's records do not reflect that a post judgment

motion was filed. Therefore, the complete record is due within 60 days, or August 07, 2006.

The official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter's

record if: the party responsible for paying for the preparation of the reporter's record has paid the

reporter's fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal

without paying the fee. Tex. R. App. P. 35.3(b)(3). If you are not the court reporter in this case, or additional court

reporters took testimony in this case, please advise the Court in writing immediately. The Court may consider an

appeal without a reporter's record if no reporter's record is filed due to appellant's fault. Tex. R. App. P. 35.3(c).

Counsel must forward the docketing statement as required by Tex. R. App. P. 32.4. For your convenience,

the docketing statement form is posted on this Court's website listed above. If the website is not convenient, you

may phone the Clerk's Office and it will be provided upon request.

The First Court of Appeals follows the Standards of Conduct adopted by Order of the Texas Supreme Court

and the Court of Criminal Appeals on February 1, 1999. All attorneys, parties and pro se litigants appearing before

the First Court of Appeals are expected to fully comply with these standards of conduct as well as all applicable

Texas Rules of Appellate Procedure, Texas Rules of Professional Conduct, Texas Rules of Disciplinary Procedure,

and the Code of Judicial Conduct. A copy of the Standards of Conduct may be found on the Court's website.

Sincerely,

Christopher A. Prine, Clerk of the Court

cc: Court Reporter 230th District Court (DELIVERED VIA E-MAIL)

Harris County District Clerk's Office - Criminal (DELIVERED VIA E-MAIL)

Judge 230th District Court (DELIVERED VIA E-MAIL)

rac Sim us

>t>3o

IR 591 (idOI A DOMOCILB)

:xas Republic [near 79107-9606]

MAIL RECEIVED

IAL MAIL Christopher A. Prine

Clerk of The Court

iR HOUSTON, TEXAS First Court of Appeals

301 Fannin Street

SEP 25 ^ Houston, Texas 77002-2066

CHRISTOPHER A. PH«*

ICLERJ^

77G02S20&2 CO 16 i'-]li>)^>iIi>li!i>i'iill'f'>J''!iii'ini,^Pni»!'*iv']il>)i1

—g^g ••v:^w;^UIi^^^^»».PiAl.tJl,.4^^^MS4Wl!i.lU.^ I

Trial Court No. 1056045 ^^.X^

re*s **ts

THE STATE OF TEXAS CRIMINAL DISTRICT COURT NO. 23<$Ep 9 - ~**s

Respondent HARRIS COUNTY, TEXAS \<&tk^ ^/5

v. PETITION FOR PRODUCTION AlSf^JSPECT^tf^e

OF GRAND JURY PROCEEDINGS AND/Q^TESTIMONY

DONOVAN DWIGHT SIMMS TEXAS CODE OF CRIM. RKOC ARTICLE 2o7b"2tTdO /

Cestui Que Trust, (e)

Petitioner

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, DONOVAN DWIGHT SIMMS, Petitioner in the above styled and num

bered cause, Pro per, Respectfully moves the court pursuant to the Texas Code

of Criminal Procedure (T.CCr.P) Article 1.26, Article 20.02 (d), (e), Article

20.19 and Article I Section 10 and 19 of the Texas Constitution. The Petitioner

shows the following:

1.) Petitioner, DONOVAN DWIGHT SIMMS, without counsel is relying on Haines v.

Kerner, 404 U.S. 519, for less stringent pleading standards-

2.) Petitioner is incarcerated in the Texas Department of Criminal Justice

Institutional Division - Bill Clements Unit. In this present incarceration

Petitioner is at a disadvantage due to not having access to legal reference

materials in prison on par with those of the District Attorney's office and

any other Persons answering this Petition.

3.) This Petition is in accordance with (T.CCr.P.) and the Laws of Texas upon

which Petitioner relies, same binding as promised performance, a benefit due

to this Petitioner, an entitlement to Equal Protection of the Law under ad

ministration of Justice Procedures.

4.) DONOVAN DWIGHT SIMMS, the Petitioner herein is the Cestui Que Vie Trust

unless otherwise evidenced. See SeaBBBTexaa Rules of Civil Procedure Rule 52.

5.) Petitioner request that he be permitted to examine any and all testimony

of each witness that testified before the Grand Jury. Particularized need

for the Grand Jury witness testimony, is a strong interest in ensuring

accuracy of testimony outweighs government interest in secrecy. In re Grand

Jury, 490 F.3d 978, 988, 990(D.C Cir. 2007). Petitionee contemplates that

a particularized need for the testimony can be shown as follows:

a.) To discover impeachment evidence;

b.) To discover prior inconsistent statements - Washington vT Texas, 388 U.S.

14 (1967);

c.) To discover mitigating and exculpatory evidence - Brady v- Maryland,373

U.S. 83 (1963); and

d.) All witness that testified in Grand Jury testified on direct examination

pursuant to the Jenks Discovery Act, 18 U-S.C §3500.

The need for all witnesses that testified is hereby reqested by Petitioner.

In the alternative the specific testimony that Petitioner requests is as.follows:

?. Martinez, who testified in Grand Jury examination/hearing;

Peter Effah, who testified in Grand Jury examination/hearing;

Scott Gill, who testified in Grand Jury examination/hearing;

Marcus Kinnard, who testified in Grand Jury examination/hearing;

Ron Morrison, who testified in Grand Jury examination/hearing;

David Papa, who testified in Grand Jury examination/hearing;

:J-E. Sims, who testified in Grand Jury examination/hearing;

Shane McCoy, who testified in Grand Jury examination/hearing;

R.O'Bannion, who testified in Grand Jury examination/hearing;

M. 3ova, who testified in Grand Jury examination/hearing;

Jessica Limas, who testified in Grand Jury examination/hearing;

Fernando Moncada, who testified in Grand Jury examination/hearing;

Jorge Landaverde, who testified in Grand Jury examination/hearing;

•C Banks, who testified in Grand Jury examination/hearing;

J- Hutcfinson who testified in Grand Jury examination/hearing;

V- Brasher, who testified in Grand Jury examination/hearing; and

H. Dun, who testified in Grand Jury examination/hearing.

In the interest of iustice, Petitioner is further pursuing relief from

his final conviction in a Habeas Corpus Petition under the "Gateway Claim" -

Scrilup y. Delo, 115 S.Ct- 851 (1995). In his claim, Petitioner is asserting

trial counsel was ineffective. Upon such assertion, in order to find that

counsel was ineffective, an inquiry must be made according to Tex- Code of

Crim. Proc. Article 27.03. Accordingly, Petitioner was relviha on trial .r

counsel to know the law and represent him to the best of counsels knowledge.

The law states. "All objections and exceptions to the charging instrument

must be made in writing (T.CCP-) Art. 20i70: a motion to set aside, dismiss.

or quash an indictment should be made at the first opportunity and must be

presented to the trial court prior to party's announcement of ready." Neal

v.State, 150 S-W-3d 16 (Tex.Crim-App- 2004); where counsel is to Motion to

Set Aside Indictment counsel must do so based on the following:

1. That it appears by the^rscord of the-"court, that the: indictment wasmot" founded

2.

by at least nine Grand Jurors, or that the information was not based upon

a valid complaint;

2. That some person not authorized by law was present when the Grand Jury was

deliberating upon the accusation against the defendant, or was voting the

same;

3. That the Grand Jury was illegally impaneled;

Provided, however in order to raise such questions on a motion to set aside

the indictment, the Petitioner must show that he did not have an opprtunity to

challenge the array at the time the Grand Jury was impanelled. As required by

Article 19 and 20 (T.CCP). Petitioner was in fact incarcerated.

Futhermore. In Vasquez v> Hillery* the Supreme Court held, "that evidence

of racial discrimination in the Grand Jury selection process compromises the

structural protections because such abuses leave the reviewing court incapable

of determining if a properly "constituted: Grand Jury would have indicted

defendant, id. at 474 U-S. 254, 264 (1986). In the interest of justice Petitioner

finds a particularized need for the Grand Jury proceedings.

7.) The Petitioner requests the production of all the above* In the alternative

Petitioner requests the review of that which the court may order in part.

&.) Under Article 20.02 (d) (T-CCr-P.), Petitioner nay petition a court to

order the disclosure of a recording or typewritten transcription under

Article 20.012 as a matter preliminary to or in connection with a judicial

proceeding. The court may order disclosure of information, recordings, or

transcription on a showing by the defendant of a particularized need.

"(e) A Petition for disclosure under (d) must be filed in the District

court in which the case is pending- The defendant muse file also a copy of

the petition with the Attorney representing the State, the parties to the

Judicial Proceedings arid any other required by the court to receive a

copy of the Petition** All persons receiving a Petition under this subsection

are entitled to appear before the court. The court shall provide in

terested parties with an opportunity to appear and present arguments for the

continuation of or end to the required secrecy-

9.) Finally, "In felony cases, filing a sufficient indictment invokes a

court's personal jurisdiction over the Defendant. Fairfield v. State, 610

S.W.2d 771, 779 (Tex.Grim.App.1981). The indictment also gives the District

Court Subject Matter Jurisdiction. "Subject-Matter Jurisdiction is never :'

forfeited or waived." U-S- v- Cotton. 535 U.S. 625, 630 (2002). "Jurisdiction

may be challenged at any time. Once State and Federal jurisdiction has

been challenged, it must be proven - Texas Dept- of Public Safety v. Styron,

226 S.W.3d 576 (Tex.App.[1st Dist-] 2007^); Estrada v• State, 148 S.W-3d 506;

"Subject-Matter jurisdiction is a power that exist by operation of law only,

and cannot be conferred upon by any court by consent or waiver, and thus judge

ment will never be considered final if the court lacked subject-matter jurisdic^

tion" Dubai Petroleum y- Kazi, 12 S.W.3d 71; "When a cause of action is

derived from a statute, tne statutory provisions are mandatory and exclusive

and must be compelied with in all respects or the action is not maintainable

for lack of jurisdiction." - Grounds y- Taylor independent School Dist., 707

S.W.2d 889; ''A plea to the jurisdiction is a dilatory plea, its purpose is to

defeat a cause of action without regard to whether the claims asserted have

merit", Nueces County v- Dale Hoff, 105 S.W.3d 208.

The Petitioner hereby asserts that the indictment is founded on fewer

than the required number of Grand Jurors voting in favor of a true bill, the

actual foreman failed to deliver the bill.

"Accordingly, foregoing of the foreman's signature or even inadvertent

signing and returning of a bill in a case not reviewed by a Grand Jury are all

fundamental defects in a charging instrument's process which would vitiate the

instrument, vitiate trial court jurisdiction, and be subject to first com

plaint on appeal, despite tne failure to present objections prior to trial on

the merits." Aguilar v. State, 810 S.W.2d 230. Petitioner asserts the "cause

of action" (Grand Jury Proceedings) ."derived from a statute", in specific

Texas Code of Criminal Procedure, Article 19 and 20. "The statutory provisions

are mandatory and exclusive and must be complied with in all respects". When

the Grand Jury Proceedings are not in compliance with these, the cause of action

is not maintainable tor lack of jurisdiction.

For the reasons shown above, Petitioner has asserted a particularized

need for the disclosure of the Grand Jury Proceedings and/or Witness Testimony

pursuant to Art- 20.02(e).

WHEREFORE: Good Cause Shown and in the interest of justice, the Petitioner

respectfully prays that this court GRANT this Petition in all things.

Executed this the Twenty-Sixth Day of the Fifth Month in the

Year of Our Creator, Two Thousand and Fifteen, A.D.

Respectfully Submitted,

For:DONOVAN DWIGHT SIMMS-Cestui

Que Vie Trust, Petitioner

#1375633 - Bill Clements Unit

9601 SPUR 591

AMariiio, texas [7 9107-9606]

4.

uit Simms

't)3u

IR 591 (ijjOX A1 DOMOCILD')

:xas Republic [near 79107-9606]

MAIL RECEIVED

IAL MAIL Christopher A. Prine

Clerk of The Court

First Court of Appeals

301 Fannin Street

SEP 25Z0« Houston, Texas 77002-2066

CHRISTOPHER A. P«l*

ICLERJL

T7Gef2S20&2 GG1& i«ili»i»l*»ilWil»>»'iill'M»J«i!liiii«l»»Vm»!»»f»'li»'ii1

mou.wiu.ji. ijijmj.,,. 57^- . ... . . r^feg^BwB^^wijiwjF^H^