Greer, David AKA David Duane Greer

1 ,~ _ mm uo. 1_2-033-24-an-272-A l’\\ w t 02

APPL’ICAN|" S AITACHED MEMORANDUH OF LAH FOR HIS 11_.'07 " 1'

(§RUUND UF ERROR NU. 1: RPPLICANT 15 BElNG UENIED HIS UUE PRUCESS RIGHI TO A

CUMPLE|E CUPY OF THE TRIAL RECORD TO PREPARE HIS POST- CONVICTION COLLATERAL

ATTACK.

Applicant is "N_O_T" seeking _’a _f__ree copy of the trial record. lhe Court`Reporter

refused and failed to properly record word for word every thing that was said during

trial. Specifically by trial counsel, prosecutor and judge and jury. Additionally

failed to include the jury notels) to the judge, whether trial counsel was present

during the decision making process as to how to respond to the note. Additionally

there is a total absence from the record as to what steps were taken to secure

Applicant' s presence during this critical stage of the proceedings.

The present trial records clearly verifies there was three off the record

discussi.ons. This vital and potential vital information was not recorded. This

failure insured that the transcription of the proceedings is fatally incomplete. The

first discussion occurred immediately after the venire panel was seated. Vol.3 P. 5

L‘._3, Applicant was present and 'now will recite to the best of his ability what was

said`. The trial judge the llonorab"le Trav'is Bryan llI called AlTENTwN: to the

distinguished Mr. Robert Cessna veniremenber No. 6. lwho was selected as juror

No.Z. Vol.3 P.162 L'.B.) As being a famous sport writer who works for the local

newspaper. The Bryan Eagle. Then the judge launched into a short speech about his

:highly acclaimed friend's more distinguished accomplishments; then asked the entire

courtroom to _give him around dr of applause for his` close and dear friend

Mr.Cessena. The entire courtroom did in fact give him a loud and long round of

applause. All these vital events were not recorded as such they are not a part of

the transcribed record. The lack of this recorded evidence has denied applicant the

necessary record to establish that counsel was ineffective for not questioning this

juror about his relationship with the judge, if said relationship would effect his

decision making, process. lhis is the most vital and primary function during voir

dire. See Cadoree v. State, 810 S.w.Zd 786,789 (TeX.App.-Houston [l4th Dist.j 1991).

Additional off-the-record discussion took place. vol.3 P.142 L24, P.165

L.25.'lhis missing word for word conversation involved the judge, D.A. and trial

counsel. This missing record is potentially vital.

Another "off-the-record discussion." Vol'.3 P.1x73"L'.2"l)'. Applicant, overhea-rd~z.-=»€§

portions of this open court proceeding. Counsel revealed his representation of

applicant against the actions of the Bai:zos County Sh vE wi h entail

f w ne s. Counsl revealed that

all on the state' s it sse e §§M'NALRP£ Barzos

.- TNOV 03 2015

1

AbelAc@sia,©lesi<

Co. Sheriff's Dept. as a ride along, at times he participates in armed raids during

which his very life is entrusted in the hands of the county's deputies. Therefore,

it was in the best interest of counsel to not subject his co-workers» to ridged

v cross-examination. Exposing them to possible disciplinary actions, civil suits or

criminal charges being filed against them. Thereby creating a hostile work

environment. white v. Reiter, 640 S.w.2d 586,599 (Tex.Cr.App. 1982).

This lack of this recorded evidence has denied applicant the evidence he needs

to establish his counsel's conflict of interest, and that the judge was aware of

this~ conflict of interest. Applicant is now left with the ball assertion in state

and federal court, post-conviction proceedings§ The Supreme court has long ago ruled

in its landmark decision this is insufficient. Cuyler v. Sullivan, 100

S.Ct. 1708,1719 (1980)("[u]ntil a defendant shows his counsel representation

represented a conflict of interest, he has not established the constitutional

predicate for his claim of ineffective assistance of counsel.

' See Vol.¢l P.183 L.15 which unambiguously establishes that there was a jury

note, that a discussion was held then a reply was sent vby the judge. Also that the

record does not include this note, nor if counsel and or applicant was present and

consulted before a reply was sent, also what steps were taken to secure applicant‘s

presence. It is mandatory lthat. the record reflects these levents. See_

Tex.C.C.P. 36.27. See also U.S. v. Smith, `31 F.3d 469,473 (7th Cir.1-994)._

This rule is setup to guard against Ex Parte communications between the judge

and jury. Now what is the most disturbing portion of the missing records is the ex

parte communications between the judge, prosecutor and jury. As noted in the record

Vol.4 P.183 L.15 the juror(s) during deliberation the jury requested to view the

video._ Applicant has now submitted a notarized affidavit. Ex. A. The judge ran

everybne out of the courtroom except the prosecutor. The judge then summoned the

jury panel into the courtroom", the prosecutor set up the video on his person lap top

and served as the on scene operator. Trial counsel nor Applicant was

present. Shortly after this viewing the jury returned a verdict of guilty. None of

these highly illegal, highly prejudicial events are on the record. This in itself

requires a new trial. See Revell v. State, 885 S.w.2d '206,211 (Tex.App.-Dallas

1994). Ex parte communication limited to the jury foreman and judge alone‘was

, prejudicial enough for the Supreme Court to agree a new trial was warranted. United

` §i_;_aw, v. Unitgi Sta@ Gprn Co'., 98 S.Ct. 2864,2885-86 ("Fina_lly, the absence of

counsel from the meeting and the unavailability of the transcription of full report

of the meeting aggravate the problems..."). This secret meeting between the judge,

prosecutor and the entire jugy_ panel's private extended viewing of the inculpatory

video' orchestrated by the-prosecutor,~far exceeds the ex parte communication(s) the

Supreme Court requires for reversal. Id at 2885-86.

In the event that this court should attempt to rule that this error needed to

be objected, to, to preserve` error will only highlight that these ex parte

communications and events took place without counsel being present, in violation of

36.27 supra., u;s. v. smith, supra at 471. 4 '

Applicant has a due process right to these records without unnecessary

delay; DeLancy v. Caldwell, 741 F.2d 1246,1247 (10th Cir.1984). Applicant has

suffered harm but not limited to: Being forced to file an incomplete 11.07 in

efforts to stop the running of the one-year statute of limitation pursuant to 28

U.S.C §2244. Also the continuing incarceration of an innocent person. Triestman

v. U.S., 124 F.3d 361,379 (2nd Cir. 1997). Applicant request `that he be provided a

complete copy of the trial record, and the-opportunity to supplement his 11. 07.

GROUND OF ERROR NO. 21 APPLICANT wAS DENIED HIS SIXTH AMENDMENT RIGHT T0 j

CROSS- EXAMINE THE wITNESSES AGAINST HIM.

Officer Ficke prepared the Vehicle Inventory Report which is testimonial the

linch-pin (evidence) that was used to prove the gun and jacket was legally

obtained. Thereby allowing it to be used as evidence during trial. As such the

manner in which the report was prepared is the nexus of the entire case. Because of

' these facts applicant had a Sixth Amendment right to cross- -examine this witness.

Meledez- Diaz v. Massachusetts, 129 S. Ct. 2527 (2000):

"The Sixth Amendment of the United States Constitution, made applicable to the

State' s via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403, 85

S. Ct. 1065, 13 L. Ed. 2d 923 (19655, provides that '[I]n all criminal

prosecutions, the accused shall enjoy the right...to be confronted with the

witnesses against ' him.' In Crawford, |v, washington, 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004 after reviewing the Clause's historical

underpinnings, we held that it guarantees a defendant's right to confront

'those ‘who bear testimony' against him... A witness testimony against a

defendant is thus inadmissible unless (Pg. 321) the witness appears at trial

or, if ‘the witness is unavailable, the defendant had a prior opportunity for

cross- -examination 1d. at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177."

The fact in question 4is whether the Vehicle Inventory Report compiled by Brazos

Co. Sheriff's Deputy Ficke is testimonial. It represents the same testimony he is

expected to provide if called at trial. See Meledez-Diaz v. Massachusetts, supra at

321: ("The fact in question is that 'the substance found in the possession of

Melenda-Diaz-the precise testimony the analysts would be expected to provide if

called to trial.").

This report prepared by officer Ficke is considered on the same plane as the

report prepared by the analysis in Meledez supra each are not entitled to the

exception of business 'records. See M, supra L;Ed.2d at 328:

"The` analysts' certificates-like police reports generated by law enforcement

officials do not qualify as business or public records for precisely the same

reason. See Rule_803(8)(.defining Public records as "excluding, however, in

criminal cases matters observed by police officers and otherflaw enforcement

personal"). At 329 "Business and Public records are generally admissible

absent confrontation not because they qualify under an exception to the

hearsay rules, but because-having been created for the administration of the

entity's affairs and not for the purpose of establishing or proving some fact

_ at trial they are not testimony..."

»For this reason applicant has a Sixth Amendment right to cross-examine officer

Ficke, so he could test the reliability of the report. Meledez, supra at 326: ("To

be sure, the Clause's`ultimate goal is to ensure reliability of 'evidence, but it is

a procedural rather than a substantive»guarantee. It commands, not that evidence be

reliable, but that reliability be assessed in a particular manner by testing in the

crucible of cross-examination."). Additionally it's the prosecutor~'s responsibility

to ensure Ficke is present and not applicant‘s. Because it» is the prosecutor's job

to produce adverse witnesses. Meledez, supra L.Ed. 2d at 323 ("Const. Amend 6. The

text of the Amendment contemplates two classes of witnesses-those against the

defendant and those in his favor. The prosecutor must produce the former.)“.` Because

applicant was denied his Sixth Amendment right to cross-examine officer-‘Fic`ke` this

writ should be granted and a new trial order.

Next` is the matter of being denied the right to cross-examine the witness that

gave evidence against applicant for a past crime, a description of the vehicle and

the sole witness to provide-a description and identification of applicant as the

driver of the vehicle. The State was allowed to prove this key element by hearsay

testimony without allowing applicant to test the reliability of said testimonial

evidence. Matz v. State, 14 S.w.3d 746,747 (Tex.Crim.App.ZOOO)("The gravemen -of the

general exclusion of hearsay __is that such testimony is not subject to testing

through cross-examination.")..All testifying witness agreed they could not identify

applicant as the driver until after applicant was forcefully pulled _over and

simultaneously arrested at gun point. Vol.4 P.75 L8-14. Officer Terry Young

testified that" I may have been about a block or'so behind everybody else. Vol.4

P.58 L18-19. Officer Ledesna testified he was in the vehicle at the very back I came

in after--right after the stop. Vol.4 P. 82 L.2-3. Even though this witness was

alleged to be a CI him/her was still subjected to cross-examination because he/she

gave evidence against applicant that he was the driver of the vehicle without said

testimony the forceful stop, arrest and inventory search also the confiscation of

the gun was illegal. Therefore, applicant had a Sixth Amendment right to cross

examine this witness. ' .

, Even the judge was concerned by the lack of "any direct testimony by stating:

That they never identified him before they'pulled him over. Vol. 4 P. 108

L.12-17, Applicant had a right to test the credibility of the CI's description.

Because this very information through out trail and specifically to deny appli,ant's

motion to suppress. Vol.4 P.108-111. _ See §r_‘awford1 v. washington, 124

s.ct. 1354,1364 (2004): ~ " _

"The test of the Confront`ation Clause reflects this focus. lt applies to

'witnesses' against the accused-in other words, those who 'bear testimony' 2

N. webster, An American Dictionary of the English Language

(1828). "Testimony.' in turn, is typically .'[a] soleman declaration or

affirmation made for the purpose of establishing or proving some fact. Ibid."

This witness's testimonial evidence was used to identify both the vehicle and

applicant as the driver. Before the CI's information, Brazos Co. Sheriff's Dept. had

-no ideal applicant had an arrest warrant by the city of Bryan police Dept., his

location nor what he was driving. Vol. 4 P.88 L.3-11. This detailed information

provided by this alleged witness is of the paramount importance because only this

witnesses' identification of the truck and applicant 'as the driver provided

authority for the deputies to- forcefully pull applicant over arresting him at gun

point." This vital evidence can not be overstated. without it there could have£_ been

no stop, no arrest and no search, no trial much less a convict'ion.`

Because 4the State failed to produce this witness for cross-examination

applicant was denied his Sixth Amendment right to subject this witnessesinfo'rmation

to adversarial testing. Meledez, supra at 326. For this reason this writ should be

granted and new trial ordered.

GROUND OF ERROR NO. 3: THE PROSECUTOR DENIED APPLICANT A FA!R TRIAL IN

VIOLATION OF THE SIXTH AND FGURTEENTH AMENDMENTS OF'THE U.S. CONST. BY USING '

HYPOTHETICAL SITUATIONS WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE »TO

COMMIT JURORS TO THE STATE‘S THEORY OF CONVICTION BEFORE`ANY EVIDENCE BEING

PRESENTED BEFORE THE ACTUAL TRIAL BEGIN.

GROUND OF ERROR NO. 4: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL IN

' VIOLATION OF THE SIXTli AND FOURTEENTH AMENDMENTS OF THE U.S. CONST. BY USING

HYPOTHETICAL SITUATION WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE TO STRIKE

THE JURORS THAT NERE UNWILLING TO CONVICT APPLICANT BASE_D UPON THE EVIDENCE

AND LEGAL THEORY TH_AT THE STATE WAS GOING TO PRESENT WHEN THE TRIAL BEGIN.

The prosecutor used the exact facts of the case that they were going to use to

convict applicant to find jurors that would convict applicant and s_truck the ones

that would not commit themselves. `

The state's theory to convict is that the truck belonged to him and any thing

that was in his truck'belonged to him. e.g.' gun and jacket. .

During voir dire the prosecutor set forth the exact facts and legal theory to

all venirepersons: vol.3 P. 41-42 MR'.' CALVERT: Did--you drove `your truck to the

courthouse today---No. 37 Yes, sir, MR. CALVERT: It's parked out in the parking

lot? No. HJ: Yes, sir...You didn't bring you tools into the courtroom, did

you?...No, sir--okay. And you said those tools,_ even thought they're in your

'vehicle, they're in your possession, right? Yes, sir, they are--why? do you think

so?--Because they're under my care. I can_»manage those tools. The prosecutor then

when row by row P. 42 L.22-24 Jury member Mr. Cobes agreed. The jury foreman agreed

P. 57 L.6. All jurors that disagreed were struck; e.g. P.45 L.3 Mr. Bernal.

The prosecutor even selected jurors that were willing to convict applicant even

if they did not prove he owned the gun (exact facts of the case). P. 65. Jurors that

refused to convict based upon these facts were struck. e.g. Ms. Ford~ (P.'65 L. 23)_

Ms. welsh P. 66. _

_ The prosecutor first set forth the facts and legal theory (the gun was in

applicant's truck, even if someone else (Ms. Campbell) claims they own it,'it is

still in applicant's possession.' Vol.3 P.65-68 L.5-8 Mr. CALVERT: Are you okay with

what we were talking about, that somebody could not own something'and not even

physically be in possession; but they can still be i-n possession of it? you okay

with that? This represents the exact facts and exact lack of evidence the state was

fixing to present. For' the verinemembers were asked how they felt about convicting

someone based upon these facts. Any juror that refused to convict based upon this

lack of evidence or legal theory were struck.' This clearly violated Applicant' s 6th

and 14th -Amendment right to a fair and impartial jury and trial. U.S. v. webster,,.v

162 F.3d 308,341 (5th Cir. 1998)(The 'Sixth Amendment right to a fair trial includes

the right to an impartial jury Mrg_ag_v_._gl_ing_ii, 504 U;S. 719, 727, 112

S.Ct. 2222, 119 L.Ed.2d 492 (1992)"'). Because the jurors were already conmit_ted to

convict applicant based upon this particular set of facts they"were no_ longer

impartial. M, 810, S.w.2d 786,789 (Tex.App.-Houston "['14th»111»'st1 _1_991):

"The Court of Appeals in affirming the trial court stated: "the policy behind _

the above rule is that voir dire is designed to insure impartial jurors, but"

if jurors are forced to commit themselves prior to the trial as to how they:_,

would consider certain facts or testimony, then the case is being tried on 1

voir dire and the jurors are no longer impartial." _

For sure the prosecution' s questions were designed to bring out the jurors

views on the facts of the case that was fixing to be trial. Atkins v. State, 951

s,w.zd 787,789 (Tex.cr.App.1997):

"'...By asking the veniremembers if they could convict ~ based on the

hypothetical given, the State was not explaining the law but was seeking to

commit the venire to a particular set of facts.'"). See also Paustian v. State,

992 S.w.2d 625,627-28 (Tex.'App.El Paso 1999)(,"while it is proper to use

hypothetical fact situation to explain the application of the law, it is NOT

proper to inquire how a venirperson would respond to a particular

circumstances presented in a hypothetical question...The State was NOT

explaining the law, but was seeking to commit the venire to a particular set '

of facts. Atkins, spura., 789'. Every veniremember who ultimately served on the

jury was asked individually that same question by the State. This type of

question using hypothetical or otherwise, is improper-and serves NO PURPOSE

OTHER TllAN to commit the jury to a specific set of facts prior to presentation '

` of any evidence at trial.“ Id at 789");

There should not remain any doubt that the prosecutor used the exact facts of the

case. He asked all veniremebers row by row how they felt and the ones that did not

agree to convict were struck. These questions were specifically designed to bring

out th_e veniremembers views on the facts of the case,that was going to tried. See

Paustian v. State, supra. at 627:

"Although it is proper to question juror‘s views and sentiments on social and

moral subjects generally, lthe courts do not permit a hypothetical cases to be

submitted, nor do they allow questions designed to bring out the juror‘s views

on the case to be tried." ` `

The prosecutors questions did in fact bring out the juror‘s views not only on

the case to be tried `but also of the evidence the state was going to present and how

the juror‘s viewed this evidence. The record verifies that the prosecutor used the

voir dire to question, interrogate and investigation the jurors views of this

specific case. Thereby handpicking a jury to convict appellant upon the evidence and

lack of evidence the State was going to present. Brandborg v. Lucas, 891

F.Supp. 352,358 (E.D.Tex.1995): l

"However, jury selection is 'not to afford individual analysis in depth to

permit a party to choose a jury that fits into some mold that he believes

g¢i)pr<))pri:te for his case.' Shclinsky v. llnited States, 379 F.2d 735',_ 738 (1st

Applicant will now set forth the facts in the record establishing how the

prosecutor capitalized on his unconstitutionallycommitted jurors. The prosecutor

from the start of trial "Opening Statement" started reminding jurors of their

commitment by` letting them know "its applicant truck." P. 23 L.6-7 Mr. Greer and

Ms. Campbell -- were located together. they were in Mr. Greer's pickup. HE OllNS I»T. The

prosecutor had his very first state witness Terry Young testify it was applicant's

truck P.34 L.24-25 "...you said earlier, there was nobody else in the Defendant's

truck, right? P. 35 L.1 A. That's correct, sir. The prosecutor continued to argue to

the juror‘s it was ~appl‘i'caht's truck even though he "knew "it fwas not'~'. ;"Be,cause trial

counsel _ had this very witness admit it was not applicant's truck.-Vol. 4 P.72

L.24-25 P.73 L.1-5. "Q.' Now, the vehicle that Mr. Greer was driving; that is

actually registered to a Kenneth Greer, is that right? A. Yes, sir. Q. And so, that

would be--that would be David's dad, and not actually David, it that

correct? A. Yes, sir.

At this point the prosecutor knew it was not applicant‘s truck, to obtain a

conviction he had to convince the jury it was applicant's truck because they had

already committed themselves to do so. The prosecutor reminded jurors of their

commitment during voir dire that they would convict applicant if the gun was in his

truck but was not physically in his possession. Vol.4 P.177 L.20-21. The prosecutor

pounded this point into the jurors minds until it was literally the last words they_

heard. "Its his trick, Its his truck." Its his truck before they begin to

deliberate. Closing arguments P. 178 L.24-25v "...It's his vehicle. .There is no

question. NONE.’ we are beyond a shadow of a doubt. The vehicle was h'is. P. 179

"...It's registered to his parents', but it's his truck. That's his truck (remember

the jury committed to convict if the gun is in his truck)... Because it was in his

vehicle that he was driving..the gun was_ in his truck. P. 180 L. 25 Its his

truck.` P.182 Driving his truck, within one minute of the jurors being excused to

begin deliberation.

Because of these actions of the prosecutor, applicant was denied his 6th and

14th Constitutional Amendments- right to a fair and impartial trial and jurors. For

these reasons this writ should be granted and a new trail ordered.

HR'OUND OF ERROR NO. 5: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL BY

PAINTING A FALSE PICTURE, USING FALSE TESTIMONY AND, EV_IDENCE TO GBTAIN A

CONVICTION wHICH DENIED APPLICANT A FAIR AND IMPARTIAL TRIAL IN VIOLATION OF

APPLICANT'S 6TH AND 14TH AMENDMENT RIGHTS OF THE U.S. CONSTITUTION.

STANDARD OF REVIEw: PYLES Vs JOHNSON, 136 F.3D 986,996 ('STH CIR. 1998) TO OBTAIN A

REVERSAL BASED UPON PROSECUTGR'S l|SE OF PERJURED TESTIMON¥ OR

FAILURE vTO CORRECT SUCH TESTIMONY A HABEAS PETITIONER MUST

DEMONSTRATE THAT 1) THE TESTIMONY wAS ACTUALLY FALSE, 2) THAT

STATE KNEw IT wAS FALSE AND 3) THE TESTIMONY wAS MATERIAL.

In this case the State had the burden to prove three essential elements beyond

a reasonable doubt. 1) that applicant was a convicted felon within the last five

years .or still on parole; 2) that he was in possession of a gun; 3) the gun was a

firearm. The first element was self proven because applicant signed a stipulation

that he was a convicted felon still on parole at the time of'the offense. Vol. 6

P. 17 Ex. 14. Accordingly the state only had to prove the two remaining elements to .

'be entitled to at guilty verdict. The record verifies the prosecutor used false

testimony and false evidence to prove them. Then maximized the effect of the false

evidence had on the verdict by informing the jury they were not required to base

their verdict on proof beyond a reason doubt. Vol. 4 P. 165 L.12-15.

As previously shown the prosecutor had hand picked his jury to fit his mold. A

jury that had committed themselves to convict applicant if the gun was found in

applicant' s truck. Vol.3 P.41- 44. Additionally committed themselves to convict

applicant of possession of the gun in his truck if someone.else testified it was

their gun. P.65-70;

l Now to establish the prosecutor knew each time he stated or a witness testified

the truck or vehicle belonged to applicant was false.' The State's first witness

Deputy Terry-v Young testified on cross-examination v(Vol.4 P.72-73 L.24-25,1-5) that

applicant's father was the registered owner and not applicant. Because this witness

knew before trial it was not applicant's truck the prosecutor is legally accountable

for this same knowledge. See Carriger v. Stewart, 132 F. 3d 463, 480 (9th Cir.1977).

Therefore the prosecutor knowingly and intentionally had officer Young commit

aggravated perjury by carefully manipulating his testimony, by having him testify

that the registered owner was Greer and it was applicant's truck. Vol.4 P.31. L.1-2

P.32 L.10-14,P.33` L.7-8 Q. weapons drawn pointed at the Defendant's truck? A. Some

did, yes sir. P. 34 L.24-25 you said earlier, there was nobody else in Defendant's

truck, right? P.35 L.1 That's correct sir. P. 56 L.13-16.

On cross-examination the false statements'of~the prosecutor and perjured

testimony was fully exposed by proving the truck was owned and registered to

applicant's father 'M' applicant. F.72-73 L.24-25,1-5. Not to be impeded by the

truth, the prosecutor once_ again had Young confirm the truck was applicant’s. Vol.4

P.154 L.21-25 P.15_5 L.1. The prosecutor also had officer ware confirm under oaths

that the truck was applicant's. Vol.4 P.158 L.1-3. The prosecutor begin to embed and

multiple the impact this false evidence would'have on the verdict by compiling

credibility for this lie, by falsely stating applicant's only witness testified that

it was applicant's truck. Vol. 4 P. 179 L.1-2. "Monishia told you that. It‘ s

registered to his parents, but that' s _lis_ truck. That-' s h_i_§ truck." The record is

"_v_O_IL'L! This testimony does not exist. A classic example of telling one lie to cover

up for another lie. The prosecutor then maximized the vital and key role this false

testimony and evidence would have on the jurors' deliberation to secure a guilty

verdict. By simultaneously reminding the jurors of their commitment during voir dire

and how this false evidence has decided this for them that applicant is

guilty. Vol.4 P.179 L.10-15 “.’..the lone issue in front of you 'is _M po_s_sg;i_grl.

There can be' no dispute. Again, we are there beyond a shadow of a doubt that`this

man was exercising care, custody, control or management over that pistol. w_e _I_<____now

embed this false evidence into the hearts, minds. and souls of each juror to

exacerbate the influence it would ultimately have on their verdict. The prosecutor

pounded it until the very last minute.v P.180 L.25.` P.181L.1 "It's his truck. P.182

L. 22 "...driving his truck..." The fact that it was applicant's truck was still

ringing in the jurors ears when they were released.

Additionally the record verifies the prosecutor painted a false picture of the

evidence that he used to prove the second element of the offense, which is the gun

was `a firearm. The prosecutor stated to the ljury this elements is self

proven. Therefore, you need not concern yourself with this element. By stating the

defendant signed a stipulation that it was a'firearm. Vol. 4 P. 164 L.5-7: "Because

you k__now that was a firearm because that was stipulated to..."

Once again the record verifies this evidence does not exist. The prosecutor

painted a false picture of the evidence to prove his entire case. e. g. possession of

a firearm. See Pearson v. State,_ 649 S.w.2d 786,789 (Tex.App.Forth worth

1983)(“Certainly, we know reversal must follow where the prosecutor deliberately

presents a false picture of the facts by knowingly using perjured testimony. Citing

Means v. State, 429 S.w.2d 490 (Tex.Cr.App.1986).").

The jury had sworn to follow the law and was left but one choice to vote

GUILTY, GUILTY, GUILT¥---12 times unanimously! There can remain no doubt that using

false evidence to prove the only two remaining elements rendered applicant's trial

fundamentally unfair. Also that there exist a reasonable probability that this

wealth of false evidence effected the judgment of the jury.

Prosecutor next painted a false picture of the evidence for two reasons: The

first reason: lTo cover up the fact that there was three jackets in the truck, a red

flowery satin jacket, 2) -a camouflage jacket 3) a black leather jacket. . The

second reason:-To inject his own opinion that applicant's only witness was a

liar. Vol. 4 P. 180 L.‘13-14 why? And we know beyond any shadow of a doubt Monishia

lied and -lied and lied. Daggan v. State, 778 S.w.2d 465,469 (Tex.Cr.App.1989)("Nor

does it matter that the falsehood goes merely to an issue of credibility. See N_aLe,

surpa ("A lie is a lie no mater what its subject...").

There was three jackets in the truck applicant's camouflage jacket with hood on

10

it Vol.4 P.128 L.12-13. The red flowery ‘satin jacket Ms. Campbell was -

wearing§ P. 128 L.8-9. Also the black leather jacket the gun was allegedly

in. Prosecutor needed to prove there was only two jackets in efforts to hedge the

evidence to secure a conviction. Therefore, prosecutor repeatedly had his witnesses

falsely testify that the jacket Ms. Campbell was wearing was

camouflage. R. Ledesna. P.83 L.1 P.144. L.19. '

During closing arguments the`prosecutor used this false evidence to persuade

the jury that applicant's only witness was a liar. P¢166 L.17-19 _"...she said she~

was wearing a different jacket that day. She wasn't, she in fact was wearing a

camouflage jacket._" To establish tha-t the aforementioned testimony is false simply

view the video which establishes the state knew the witnesses'_testimony and the

prosecutors arguments were false. _ `

Any reasonable likelihood of the effect of`this overwhelming false evidence may

not have had an injurious effect on the judgment of the jury was placed beyond

reproach by the prosecutor committing the structural error of falsely telling the

jury their verdict did not have to be based on proof beyond a reasonable

doubt. Vol.4 P.165 L.12-15. The chance of a fair trial disappeared like one drop of

water on a red hot skillet "poof."

' what really makes the prosecutor's_ action so intolerable is the fact he had the '

evidence (that the truck did not belong to applicant) which destroyed his theory of

conviction and he had a duty to not mislead the jury but chose to repeatedly paint a

false picture to secure a conviction. Brow v. Borg, 951 F.2d 1011,1015 (9th

Cir,1_991); "see also U.S.-v. Blekey, 14 F.3d 1557,1560 (11th Cir.1994)("[A]

prosecutor must refrain from improper methods calculated to produce a wrongful

conviction."). Actually there is more than the required reasonable doubt that the

false evidence effected the jury verdict to require'reversal. westly v. Johnson, 83

F.3d 71`4,726 (5th Cir. 1996). ' -

The prosecutor use of false testimony to prove all the remaining elements then

falsely telling the jury that the proof did not have to be beyond a reasonable doubt

denied applicant his right to a fair and impartial trial in violation of the 6th and

14th Amendments of the U.S. Const. Therefore, this_ writ should be granted and a knew

trial ordered. `

GROUND OF ERROR NO. 6: THE PROSECUTOR DENIED APPLICANT A FAIR TRAIL IN`

VIOLATION OF THE 6TH AND 14Tli AMENDMENTS OF THE 'U.S. .CON_ST. BY MAKING

MISSTATEMENTS OF THE LAw. 4

STANDARD -OF REVIEW: ROSE V. JOHNSON, 141 F.SUPP.Zd 661,707 (S.D.TEX.ZOOl): "IN

DETERMINING wHETHER THE PROSECUTOR'S REMARKS PREJUDICF.D

11

DEFENDANT'S SUBSTANTIVE RIGHTS, THE COURT ASSESS (1) THE,

MAGNITUDE OF THE STATEMENTS (2) THE EFFECT OF ANY CAUTIONARY

INSTRUCTIONS GIVEN, AND (3) THE STRENGTH OF THE EVIDENCE OF THE

DEFENDANT'S`GUILT."

The prosecutor misstated the law during voir dire regarding applicant's 5th

Amendment right to remain silent and not tes'tify. Vol.3 P. 85 L.7-9. MR CALVERT: You

might incriminate somebody else right? Can anyone think of another one? Then the

prosecutor misstated the law which involves applicant's most substantial structural

right which is so pre`cious that it violates the very foundation of American citizens

right vto trial by jury is based upon. That the state must prove their guilt "beyond

a reasonable doubt". Vol.4 P.165 L.12-15. '...you are the finders of fact. You can

find these facts and add them up. It does not have to be beyond a reasonable

doubt‘..." Bear in mind mat this point in the trial the jury charge had already been

read. Also that the judge gave this is seal of approval by not correcting it.

3 Applicant will concede at this point his counsel did not object to either of

,these misstatements of law. But because these remarks of the prosecutor are

manifestly improper and violates mandatory statutes that the prosecutor will not

misstate the law to the jury or engage in improper conduct to obtain a wrongful

conviction, as such this error was not waived.l wills v. State, 785 S.w.2d 378, 385

(Tex.cr.App.1989): b t '

"That is, jury argument error will not be waived»for failure to object where

the argument is manifestly improper, or violates some mandatory statute, or

injects some.new fact harmful to the defendant‘s case. Mathews v. State, 635

S.w.2d 532,539 (Tex.Cr.App.1982); walthall v.State, 594 S.w.2d 74

(Tex.Cr.App.1980). In making the determination of whether a statement is

manifestly improper, harmful prejudicial, courts are to look at the record as

a whole." '

By the prosecutor seeking the jury to base their verdict on less evidence and

proof than beyond a reasonable doubt is an illegal method to secure a wrongful

conviction. See U.S. v. Blakey, supra. at 1560; United States. v. Rodriguez, 765 F.2d

156,159 (11th Cir.1985). It's manifestly improper to falsely state the law regarding

applicant's U.S. 5th Amendment. This violation in conjunction with the request that

the jury can base its verdict on less than reasonable doubt are manifestly

_improper. These remarks and the closing arguments were not only objectionable but-

were clearly improper, For these comments to be considered harmless the evidence

against applicant must be overwhelming. U.S`. v. .»B'-l:~akey,- supra. at 1560-61. As

thoroughly explained in ground of error~-No._£`;. The evidence is a far cry from

being overwhelming. This error of the prosecutor should be considered a structural

error due to the fact it effects the framework within which 'a trial must proceed

12

rather than simply an error in the trial process itself. Pyles v. Johnson, supra. at

993 ("Structural error is error 'effecting the framework_within. which a trial

proceeds itself.’ Fulminante, 499 U.S.' at 310, 111 S.Ct. at 1265. By it's very

nature, structural error 'def[ies] analysis by 'harmless error' standards. Id at

309,* 111 S.Ct.at 1265.'"). Furthermore this error (violation of Texas Penal Code

2.01) was reasonably calculated to injury applicant by denying him his due process

rights to a fair trial in violation of the 14th Amend. of the

U.S. Cons'titution. Moore v. State, 848 S.w.2d 920,922 (Tex.App.-Houston [1st Dist.]

1993). Additionally bear in mind g cautionary instructions M given. Because the

error instructed the jurors they couldn based their verdict on less proof than the

law requires, there is a reasonable probability that the results of the proceedings

would have been different absent this error. Therefore, th=is writ should be granted

and a new trial ordered.

GROUND OR ERROR NO. 7: THE PROSECUTOR ILLEGALLY COMMENT-ED ON APPLICANT'S RIGHT

TO REMAIN SILENT WHICH DENIED APPLICANT HIS UNITED STATES‘ CONSTITUTIONAL 14TH

AMENDMENT RIGHT TO A FAIR TRIAL. '

GROUND 0F ERROR NO. 8: THE PROSEC\ITOR'S MISSTATEMENT OF THE LAw REGARDING

APPLICANT'S RIGHT -T0 REMAIN SILENT wAS ILLEGALLY USED TO POISON VENIREPERSONS

TO DENY APPLICANT 6TH AND 14TH AMENDMENT RIGHT TO A FAIR TRIAL.

This is the very unique case in which Applicant's Fifth Amendment right to

remain silent (not testify) is placed in a real peril. Because the venirepersons

(jury) will be informed before trial begins that applicant is a convicted

felon. Therefore, applicant is in grave danger of being tried and convicted for

being a criminal in general. Vol.3 P.90 L.5-13: "VENIREPERSON NO. 43~: I think where

I struggle with it is that each--each on its own, I probably could; but when you put

the two together, you know, having the past felony and then choosing to not speak

for himself, each one erodes the credibility. So, I think it becomes easier in my

mind to prove the--without reasonable doubt, that there was a law broken because

each one promotes a little bit more on top. so, it becomes a little more difficult."

P.91 L.3-9. VENIREPERSON NO. 39: I just couldn't say. I would try very hard not to

hold that against him; but, especially, you know, having a past felon; and if_

- he's---it would be very--psychologically, I don't think I can. It would--I'm afraid

1 might tend to hold it against him. And if his lawyer is telling him that, get a

new lawyer."

As such any comment by the prosecutor that applicant may have other felony

conviction(s) or have something to hide would be highly prejudicial thereby denying

applicant a fair trial. when judging the actions of the prosecutor bear in mind by

13

his own admission he is both a seasoned attorney and prosecutor. P.91 L.12-13

"...Ms. Nelson, because I'm somebody who's been--I've done both'jobs. I've been a

criminal defense attorney, too."

Therefore, the prosecutor was well trained in the effects his direct comments

and alluding to others would have on this jury panel. Because of his training his

actions were strategically designed to achieve the desired results.

Ironically just seconds before the State begins speaking on the Fifth Amendment

a venireperson starts speaking._`_.about his roommate having a firearm in his possession

and he knowns 'he is not suppose to have a firearm it's his fault for not

telling. Because appellant did not tell his is guilty of‘possession of the

firearm§ P. 81 L.18-21. VERIREPERSON NO. 48: "...if I know my roommate has a gun in

the house and I' m not suppose to have a firearm in my possession, the that's on

me. I know that he has it in the house."

The prosecutor knew before trial that applicant's main defense was going to be

his girlfriend was going to testy the gun that was in the truck was hers. Vol.4

P. 26 L. 5- 6. The prosecutor quickly seized upon this belief that if you don' t tell

on someone then your guilty. P. 81 L. 22- 23. MR. CALVERT: Sure. Sure. At this point,

through -- and that' s Fair.'}' The prosecutor then pounced_ upon this opportunity vto

strategically implant into the minds of all venireperson's that the 5th Amendment

includes the right to not tell on someone else. P.82 L.8-13. "MR. CALVERT: I

understand. Okay. Can anybody tell me what that is? The Fifth Amendment to the

United States Constitution? The Fifth Amendment is protection against self--"

VENIREPERSONS: Incrimination. This fact and misinterpretation of the law was

solidified and cemented into all lvenierpersons by the prosecutor. P. 85

L.7-8. MR. CALVERT: You might incrimination somebody else, right? Can anybody think

of another one? This soliciting lead to a verireperson to come up with the ideal

that the reason applicant would not testify is he had something to hide. P.84

L.17-18. VENIREPERSON NO. 5: And as a juror, I would look at, okay, what is that

person afraid to say on the stand? what are they hiding?

The prosecutor quickly gave this ideal his seal of approval. P.84

L.20-21. "MR. CALVERT: Sure. And absolutely. That's a fair way to feel. This ideal

that applicant had something to hide and the prosecutor would bring it out on

cross-examination, -was hopelessly embeded into all venireperson".s minds by seizing

the moment to implant into~ their minds a real world example of some things that

applicant may wish to hid'e. (Bea'r in mind at this point the prosecutor had secretly

recorded his interview with Ms. Campbell Vol.4 P.126 L.2-5 as such he knew that

14

Ms. Campbell was going to testify that ~her and applicant were having a heated

argument). The following " event took place Vol;3 P. 86 L.18-15 P. 87

L.1. MR. cALvERl;v L'et me--that's absolutely let me kind of give you a real world

example. we_tried a case in here, I guess just a week or two ago where a guy was

charged with the offense of assault, okay, on a girlfriend. And he assaulted--or had

been accused of assaulting not one, but two other girlfriends previously, right? And

there was a real danger that if you testify and say something, it might open the

door to us getting into these other girls right. The prosecutor knew that the

evidence was going to reveal this heated argument. The prosecutor capitalized and

carefully implanted this seed into the jurors' mind that applicant may_have also hit

his girlfriend and this is the reason 'he may not testify. He was scared this may

come out on cross-examination.

_ At this point in the jury selection the entire jury pool was hopelessly

poisoned beyond rehabilitation, no amount of objections or curing instruction(s)

could have insured applicant would receive a fair trial. No court has better made

this clearer than in the opinion ill greg v. Frgghagf Corpgration, 554 F.2d 1304;

1310 (5th Cir. 1977): ("Furthermore, the cleansing effect of the cautionary

instructions in the case is dubious for, as the trial judge himself observed during

‘trial, ‘[Y]ou can throw a skunk into the jury box and instruct the jurors to not

smell it but it doesn't do any good."). See also Hicks v. State, 815 S.w.2d 3299,

303 (Tex.App.-Houston [1st Dist.] 1991).

The prosecutor's comments and lack of any curing instructions which by the way

would have been totally worthless which combined to deny applicant a fair trial. As

such these errors of the prosecutor's denied applicant his 6th and 14th Amendments

right to a fair trial. Therefore, this writ should granted a new trial ordered.

GROUND OF ERROR NO. 92 PROSECUTOR MISCONDUCT MAKING IMPROPER JURY ARGUMENTS

DENIED APPLICANT A FAIR TRIAL IN VIOLATION 0F THE 6TH AND 14TH AMENDMENT 0F

THE U.S. CONST. '

STANDARD 0F REVIEw: U.S. V. INSAULGARAT, 378 F.SD 456,461 (5TH CIR. 2004):

"IF AN IMPROPER REMARK wAS MADE, WE MUST DETERMINE wHETHER THE REMARK

"PREJUDICED THE DEFENDANT'S SUBSTANTIAL RIGHT." MUNOZ lUNITED STATES V. MUNOZ,

150 F.30 401 (5TH CIR.1998)] 150 F.SD AT 415. THE PREJUDICE DETERMINATION

INVOLVES "(1) THE MAGNITUDE 0F THE STATEMENTS PREJUDICE, (2) THE EFFECT 0F ANYA

CAUTIONARY INSTRUCTIONS GIVEN, AND (3) THE STRENGTH 0F THE EVIDENCE 0F THE

DEFENDANT'S . GUILT." UNITED STATES V. TOMBLIN, 46 F.ZD 1369, 1389 (5TH

CIR. 1995). "THE DETERMINATIVE QUESTION IS wHETHER THE PROSECUTOR'S REMARKS

CAST SERIOUS DOUBT ON THE CORRECTNESS OF THE JURY VERDICT." UNITED STATES

V. IREDIA, 866 F.ZD 114,117 (5TH CIR. 1989)."

Permissible areas of jury arguments have been well established. See Mayberry

15

v. State,` 830 S.w.2d 176,178 (T'ex.App.-Dallas 1992)("Proper subjects of jury

argument include (1) summation of the evidence, (2) reasonable deductions from the

evidence, (3) answer to arguments of opposing counsel, and (4) pleas for law

enforcement. Alejando v; State, 493 S.w.2d 230,231-32 (Tex.Cr¢App;1973);"

The first jury argument Vol.4 P. 164 L.'4-7: "So, what does this all boils down

to a whole day spent on possession knowingly or intentionally possessing a

firearm. Because you L_n_o_w th_at _v@ g firearm because L_U stipulated tp..." The

,.next involves the burden of proof the State must sustain ton prove its case. P. 165

L.12-15 "You are the finders of fact. You can find these facts and add them up. g

A)_ei pgt__hpg g g beyond _a_ reasonable doubt..=." Additionally the prosecutor

instructed the jury that the vehicle (truck) was applicant's Vol.4 P. 178 L.24-25,

179 L.2,14-15,20-21; 180 L.25; 181 L.1; 181 L.1; 182 L.22. The prosecutor went so

far as t~o- lie to the jury as to what applicant's witness testified to by stating she

witness confirmed twice that it was applicant's truck. P.179 L.1-2.

The State Additional ly instructed the jury on the issue of possession _in that it

_ has already been decided solely based upon the fact the vehicle was

applicant's. P. 179 L.10-15. "...the lone issue in front of you is M_t

possession. There can be pp dispute. Again, we are beyond a shadow of a doubt that

this man was exercising care, custody control or management over the pistol. we know

that. why? Because lt _U _i_rl his vehicle that he ppg driving." None of the,

prosecutor's arguments fits within the- four permissible areas. The first argument is

totally false, there exist m stipulation that applicant consented that thg_gpn w§

a firearm. This first argument was designed and used to lower the State's burden of

proof. F'That the appellant did possess a firearm. The second argument was clearly

prejudicial as it was designed to unconstitutionally lower the State's burden of

proof "beyond a reasonable doubt." This statement denied applicant his substantial

right to fair trial by having a jury base their verdict on L§_S_S LOOF

'(e.g. preponderance of the evidence) than the law requires "beyond a reasonable

doubt". U.S. v. wise, Supra at 152. Also it violated state law; Texas Penal Code

§2.01. There is no escaping the fact that these two arguments were both designed and

did in fact lower the State's burden of proof thereby effecting the jury verdict.

k The last two arguments will be grouped together. These two arguments are

false. The State's very first witness testified on cross-examination that the

vehicle (truck) was owned by applicant's father-and not applicant. Vol.4 P.72

L.24-25 P.73 L.1-5. As stated by the prosecutor because the gun was found in

applicant's truck it was in his possession. As such these two arguments used false

16

evidence to prove yet one more essential.element. The 4only remaining element was

stipulated to. Therefore, the only two remaining elements the prosecutor's arguments

proved them to the jury based upon false evidence. The harm was sealed by informing

the jury the state did not have to prove their case beyond a reasonable doubt.

` The state's arguments injected new non-existing evidence into the case and

instructed the jury this false evidence and testimony proved their case. As

such these comments cast doubt on the verdict. Each argument nms improper, the

,evidence is unambiguously clear that the cumulative effect of these errors were

designed and did effect the verdict which denied denying applicant a fair trial in

violation of the 6th and 14th Amendments of the 0.$. CONST,

The State's case was extremely ueak. Even .the trial judge agreed that applicant

was never identified (by any officer) before he was simultaneously forcefully

stopped and arrested» at gun point. Vol.4 P.108 L.12-17. The gun and jacket were

illegally not listed on the required inventory sheet. There was no eyewitness. The

gun was not in applicant physical possession. The truck it was discovered in did not

even belong to applicant. The passenger in the truck testified at court `the gun

belonged to her. Then explained why she had it e.g. for protection as she was

recently the victim of kidnapping and rape. Therefore, the prosecutor's remarks were

prejudicial.l MS. v. Insaulgarant, Supra. at. 461. As such this writ should be

granted and a new trial ordered. ` '

GROUND OF ERROR NO. 10: PROSECUTORIAL MISCONDUCT DENIED APPLICANT HIS 6TH AND

14TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE 0F COUNSEL ON APPEAL.

Applicant is entitled to effective assistance of counsel on direct appeal by

the 6th and 14th Amendments of the U.S. CONST. Lofton v. whitely, 905 F.2d 885,887

(5th Cir¢ 1990); Evitts v. Lucey, 105 S.Ct. 830 (1985). The number one requirement

of presenting any issue on appeal is to be able to point to the record that supports

to the error. Also it's appellant's/applicant‘s responsibility to provide sufficient

record on appeal. Ex Parte Chandler, 182 S.w.2d 350,353 (Tex.Cr.App.ZOOS)("It is the

applicant's obligation to' provide a sufficient record that support his factual

allegations with proof by a preponderance of the evidence.). See' also lgpg;

v. Director, TDCJ-CID, 550 F.Supp.2d 639,642 (E.D.Tex.2005):

"The Fifth Circuit has held that "[a]bsent evidence in the record, a court

cannot consider a habeas petitioner's bald assertions on a critical issue in

his pro se petition (in state and federal court), unsupported and

unsubstantiated by anything else contained in the record, to be of probative

evidentiary value."

Furthermore, see Duggan v. State, 778 S.w.2d 465, 468 (Tex.Cr.App.1989)“

17

"It shall be the primary duty of all prosecutors...not to convict, but to see

that justice is done." Art. 2.01 V.A.C.C.P. This overriding duty falls upon

the prosecutor in' his capacity as the State's representative.in criminal

matters. As a trustee of the State's interest in providing fair trials, the

prosecutor's is ...more than a mere advocate, but a fiduciary to fundamental

principles of fairness.' See Berggr‘ v. Unite_d Sates, 295 U.S. 78,88 55

S.Ct;.'_629, 633, 79 L.Ed. 1314,1321 (1935)." - -

Additionally the Texas appeals courts have consistently ruled on the problem

they face in trying to rule on claims of ineffective assistance of counsel on direct

appeal is the underdevelop'ed record. Goodspeed ' v. State, 187 S.w.2d 390_,392

(Tex.Cr.App.2005). Even when the appeals courts have reversed cases on direct

appeals only to have their decision overturned by the court of criminal appeals due

to the_ record being undeveloped. Bone v. State, 77 S.`w.3d 828 (Tex.Cr.App. 2002);

k by Rylander v. State, 101 S. w. 3d 107,110-111 (Tex. Cr. App. 2003)(In this case, like'the

majority of cases, "the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel' s actions."). :

For these reasons and courts decisions verifying that a undeveloped record is

insufficient to obtain a`reversal on appeal. Therefore, the lack 'of the record of

the conversations of the judge, prosecu`tor, trial counsel and jurors has insured the

denial of an adequate record on direct appeal and now post-conviction proceedings.

By not having an adequate record to support these issues. Tamez v. Director of_

TDCJ-CID, Supra. at 642. '

There are several critical times during the proceedings-that events were not

recorded. The first being, Vol 3 P.5 L.3 (venire panel seated). The trial judge

called ATTENTION: MR. ROBERT CASSENA' Veniremember No.6. As a fellow student and

class member of Texas .A&M University. Additionally a famous sports writer f`or the

local mews paper. The Bryan `Eagle. The judge made a special speech regarding Mr.

Cessena's renowned accomplishments, then asked the "entire courtroom" for a round of

applause for his close and dear friend that he obviously thought the world of. which

the courtroom gave him. This unrecorded event clearly demonstrated the highly

likelihood this friendship could effect the impartiality of this veniremember that

was seated as juror No. 2 Vol. 3 P. 162 L. 8. This juror was "never" questioned by

counsel or the prosecutor. This is a key inquiry during voir dire. Cadoree v. State,

810 S. w. 2d 768, 789 (Tex. Cr.App.-Houston [14th Dist. ] 1991).

Additionally a critical off-the-record discussion. Vol. 3 P.173 L.20. Applicant

overheard portions of it:.Counsel openly revealed his representation of applicant

represents a severe conflict of interest. Counsel revealed he works with the Brazos

Co. Sheriff's Dept.', as a ride along which entails all of the State's witnesses as

'18

or potential Co-workers. This obvious critical evidentiary support is missing from

the record. This critical evidence would have unambiguously verified counsel's

representation was forcing counsel to serve two masters simultaneously. The-best

interest of his co-workers who's hands he must entrust his very life in. The best

interest of applicant (who interest ends upon the" completion of trial). In which

case to prevail he would‘be forced to creditably expose his co-workers actions were

corrupt, wrong or illegal. These missing records would have alerted appellant

counsel to file as a ground of error ineffective assistance for not questioning this

juror about his relationship with the judge. Montez v. State, 824 S.w.2d 308, 310

(Tex.App.-San Antonio 1992, no prt).. Also file a motion for new trial with

supporting affidavit to fully develop the record of this conflict of interest. which

_' would have been granted. Lucero v. State, 246 S.w.3d 86,94 (Tex'.Cr.'App.2008). The

denial also_ has prejudiced applicant in his post-conviction proceedings. Because he

is force to make bald assertions for ineffective assistance of counsel on these two

issues and the Supreme Court has stated that is inadequate. Cuyler v. Sullivan,

supra. at 1709.

Additional off-the-record discussions took place Vol.3 P.142 L.24 P.165

L.25. This missing word for word conversation involved the judge, prosecutor and

trial counsel. Applicant did not over hear any portion of these conversations yet

this missing records are potentially vital.

Additionally there is the matter of the missing jury note (Vol.4 P.183 L.15-16)

which must be in the record also whether counsel was present and what efforts were

made to secure applicant's presence. It is mandatory that this must be in the

- record. 36.27 supra. see also U.S. v. Muraj, 947 F.2d 520,525-26 (1st Cir.1991).

Now for the most disturbing event that is totally missing from the record. 0nce

the jury begin deliberating they sent out a note requesting to see the video. Vol.4

P.183 L.15. Applicant has included Ex.A. which is an affidavit which basically

states the judge and the Prosecutor remained in the courtroom all spectators were

cleared the judge then sulnmoned all jurors into the cleared courtroom the prosecutor

re-set up his personal lap top with his power point presentation and they all

engaged in a ex parte viewing of the critical inculpatory video with the prosecutor

being their personal operator. Applicant nor applicant's counsel was present. we

know this much that once this private viewing with the Judge and prosecutor was

concluded the jury quickly returned a verdict of guilty. Exactly what all the judge

and the prosecutor said to the jury for sure some words were spoken between them

during this exclusive meeting, all of which are considered illegal ex parte

19

conmlunications. This is an extreme violation of applicant's 6th and 14th Amendment

right to a fair trial. See U.S. v. Smith, supra. at 471:

"It's well-settled that once the jury has begun to deliberate, counsel llll$T be

given an opportunity to be heard before the trial judge responds to any jury

inquiry Rogers v.. United States, 422 U.S..35, 95 S._Ct. 2091, 45 L.Ed.2d 1

(1975); united States v..widgery, 778 F.2d 325 (7th Cir.1983). This rule is

grounded in.Fed.R.Crim. Proc.43(2)'s [this same requirements is codified in

Texas State Court‘s Tex.C.Crim.Proc. 36.27; Revell v. State, supra.,at 211 and

is mandatory noncompliance is reversal errorl requirement that a criminal

defendant be present "at ever stage of the trial-', the Sixth Amendment's

Confrontation Clause, and the Due Process Clause of the Fourteenth

l Amendment. Thus, unless waived discussion concerning the jury inquiry and

court response must take place on the record in the presence pj_ _tg defendant.

Id. lU.S. v. widgery, supra.] g 327."

Applicant has established~both harm and prejudice due `to these instances of

prosecutor misconduct therefore, either`these missing portions of the _record be

supplemented and applicant be granted an ou‘t-of-time appeal or a new trial be

ordered.

GROUND 0F ERROR N0. 11: THE TOTALITY 0F THE ACTS 0F PROSECUTORIAL MISCONDUCT`

DENIED APPLICANT HIS 6TH AND 14TH U.S.CONST AMENDMENTS RIGHTS T0 A FAIR TRIAL.

STANDARD OF REVIEw: wESTLEY V. JOHNSON, SUPRA AT 726:

' "[t]HE EN BANC COURT RECOGNIZED AN INDEPENDENT CLAIM BASED ON CUMULATIVE ERROR

ONLY wHERE “(1) THE INDIVIDUAL ERRORS INVOLVED MATTERS OF CONSTITUTION

DIMENSIONS RATHER THAN MERE VIOLATIONS OF STATE LAw; (2) THE .ERRORS wERE NOT

PROCEDURALLV DEFAULTED FOR HABEAS PURPOSES; AND (3) THE ERRORS 'SO INFECT_ED

THE ENTIRE TRIAL THAT THE RESULTING CONVICTION VIOLATES DUE PROCESS. ID.,

[DERDEN V. MCNEAL, 978 F.20 1453 (5TH CIR. )] QUOTING CUPP V. NAUGHTENM,

414 U.S. 141,147, 94 S.CT. 396, 400, 38 L.ED.ZD 368 (1973). MERITLESS CLAIMS

OR CLAIMS THAT ARE NOT PREJUDICIAL CANNOT BE CUMMULATED, ’REGARDLESS OF THE

TOTAL NUMBER RAISED. DERDEN, 978 F.20 AT 461."

1). Before the trial started the prosecutor with held brady material, and

inclusion of the same in the record. e.g. dispatch log, and audio recording of his

interview with Ms. Campbell. This evidence could have\been used to not only to

impeach the creditability of the State's witness, but also to prove the initial stop

was illegal and resulting confiscation of the gun was illegal "n_o_qup case“. Also

this secret recording could have been used to further establish by record references

that the prosecutor used the facts of the case to handpick a jury and commit them to

convicting applicant based upon his mold.

2). The above error was compounde'd“by the prosecutor not producing Officer

Ficke and the CI for. cross-examination. Meledez, Supra, at 328. This is'true because

Officer Ficke prepared the vehicle Inventory Report, therefore, applicant had a

right to cross-examine him. Id. at 326-328. No testifying witness personally

20

identified applicant before he was stopped and arrested at gun point. Only the CI

identification was introduced at trial and then only by hearsay. Therefore,

applicant had a right to cross-examine the Cl. Id. at 328. ` _

3). Additionally the acts of misconduct by the prosecutor were exacerbated by _

the effects`these cumulative errors by misstating the law dealing with applicant's

5th amendment right to remain silent. "he might incriminate someone else." Also by

implanting into they jurors mind to consider evidence that does not exist e.g. that

applicant may not testing because he beat up his girlfriend and he is scared this

might come out on cross-examination if he testifies. Vol. 3 P.86 L.18, P..87 L.1.

4). The prosecutor unconstitutionally used void dire to hand pick a jury to

convict applicant based upon: If the illegal item was found in his truck and is not

in his physical possession and it did not even belong to him (someone else claimed

ownership) it was still in his possession. Vol.3 P.40 L.18. These are the exact

facts of the case. Also bear in mind that the prosecutor hadn already investigated

and secretly recorded his investigative interview with the only defense

witness. Vol.4 P.126 L. 2-5. Therefore, he knew she was going to claim ownership of

the gun. Also that she was going to state that her and defendant had a heated

argument. The facts of his real world example. vVol. 3 P.86 L.18. All jury members

were committed to convict applicant based upon the state's theory and mold of

conviction. The ones that were not were struck. Vol.3 P.46 L.3.

These acts prejudiced applicant as it denied him) a fair and impartial

jury. Adkins v. State, Supra. at 789. lie reminded the jurors of their commitment

during closing arguments that they would convict applicant even if the gun was not

in his possession. Vol.4 P.177 L.20. _

5). The prosecutor not only failed to correct false testimony and evidence but

compounded its unconstitutional effects by actually using it to prove his case. Then

consistently reminding the jurors of the false evidence. Then exacerbated its effect

on the verdict by flat out lying to the jurors by telling them applicant's only

to convenience the jurors if she said its his truck then it must be his truck. Then

immediately explained to the jury that the gun was in his truck so possession has

been decided for you. P. 179 L.10-15. The false evidence was literally hammered into

_the' jurors minds until they were released for deliberation. The prosecutor knew if

he corrected this false evidence it would destroy his legal theory and his committed

jurors to so convict. Brow v. Borg, supra at 1015, Adkins v. State, Supra. at

789. T_he record verifies that he used false evidence to secure a wrongful

21

conviction. Blake , surpa.-at 1560. This error has a cumulative effect with the

other instances of misconduct. ` '

6). Next is the flagrant disregards for anything resembling ethical

conduct. The prosecutor lied to the jury: "[y]ou know that was a firearm because

that was stipulated to..." No such stipulation exist. In this case the prosecutor

'had to prove three elements: 1).Applicant was a convicted felony; 2) He possessed a

gun, and 3). the gun was a firearm. The first element was actually self proven by an

actually signed stipulation. _The last two were proven based upon false _and

nonexisting evidence. _ _

7). This instant of misconduct spotlights the malicious intent of the

prosecutor by abandoned his role as anl officer of the court and taking on the role

of a criminal by violating the Texas Penal Code 2.01. Leaving nothing to chance he

, told the jury your verdict does not have to be based on proof beyond a reasonable

"'_"doubt. Vol.4 P. 165 L.12-15. The cumulative effect of this errors insured that any

chance that applicant had at a fair trial by an impartial jury disappeared like

smoke in wind storm. . . » .

8). Now the matters of misconduct that has effected applicant's right to effective

assistance of counsel on direct appeal and now in his post-conviction proceedings in

both state and federal court. As thoroughly explained, numerous portions of the

trial records are missing. Also the recorded interview with Ms. Campbell that the

prosecutor used to coerce and intimate her into testifying the wayhis wished. This

is yet one more criminal violation (Tex.P.,C.36.05) the prosecutor used to secure the

conviction. Also the missing jury note. Additionally the most flagrant act of

misconduct, extensive ex parte communications with deliberating jurors. Vol.4 P.183

L.14-16. what was said by the judge and prosecutor to the jury after the begun

deliberation. while . the prosecutor and judge provided them an inclusive private

extended viewing. The prosecutor remained as the jury's personal video operator on

his person lap top. whether counsel was present and what steps were taken to secure

the presence of‘applicant. All this must be contained in the record. 36.27

Supra. Harm and prejudice is assumed and reversal must follow. Revell v. State,

Supra.'at "211; word v. State, 206 S.w.3d 646,650 (Tex.Cr.App.2006). The missing

vital portions regarding off-the-record discussions, denied appellant counsel the

necessary evidence and knowledge to file a motion for new trial to further develop

the record. Counsel would have been entitled to a hearing to do so. Lucero v. State,

Supra. at 94. Had this been done and a full and a fully developed record presented

on direct appeal there is a reasonable probability the results would have been

22

different. Stricklapg v. wa§hington, 104 S.Ct. 2052 (1984). Also this of lack the

mandated record is now prejudicing applicant's ability to prove his counsel's

conflict of interest. Cuyler v; Sullivan, Supra. at 1709, and other issues. lame;

v. Qj£gctor’ of TDCJ-ID, Supra. at 642. The totality of the cumulative effects of

these acts of prosecutor misconduct denied applicant's his right to a fair trial and

effective assistance of counsel on direct appeal and now his chance to present an

adequate record during post-conviction proceedings. All in violation of the 6th and

14th Amendment of the U.S. Constitution.

eRouND oF E"RRoR No. 12: THE TRIAL couRT DENIED APPLICANT HIS siu AND 14TH

AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL BY NOT PROVIDING

COUNSEL A COMPLETE COPY OF THE TRIAL RECORD.

As previously shown there was four off-the-record discussions. Also missing is

the sustained lengthy session of ex parte communications between the 'judge,

prosecutor and deliberating jurors. also the missing jury note, if trial counsel was.

present, and what steps were taken to secure applicant's presence. U.S. v.$mith,

Supra. at 471. The missing dispatch log(s) and secret audio recording of the defense_

witness. Vol.4 P.126 L. 2-51 These missing records denied appellant counsel the

knowledge and record references to file an adequate motion for new trial with an

affidavit in support, alleging but not limited to counsel's representation was under

a severe conflict of interest. Cuyler, Supra. why counsel failed to question Robert

Cessna about his relationship with the judge. Had counsel did so; a hearing on his

motion for new trial would have been granted. Lucero v. State, Supra. at 94. This in

turn would have provided appellant counsel the necessary record to raise these

issues and others. The appeals court with the necessary records to rule on these

issues and others. See R lander v. State, Supra. at 110-111.

Additionally missing is the stipulation that provided the prosecutor the right

to introduce the video. Vol.4 P.34 L.12-17. The stipulation that the gun was a

firearm Vol.4 P. 164 L.6-8; Also a copy of the alleged evidence sheet Vol.4

P.156.L.13-17. lt is well settled law that counsel on direct appeal can not argue

outside the record. Also that the state of undeveloped record often requires the

appeals court(s) to deny claims. Id at 110-111. '

Had appellant counsel- had these missing records he could have brought these

issues on direct appeal. Therefore, there is a reasonable probability the results of

the direct appeal would have been different. Strickland, supra.

GROUND 0F ERROR NO. 13: APPLICANT wAS DENIED HIS RIGHT T0 EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF HIS 6TH & 14TH AMEND. 0F THE U.S.CONST.

STANDARD 0F REVIEW: Strickland v. washihngton, 466 U.S. 668,104 S.Ct. 2052,2064-74,

80 L.Ed.2d 674 (1984):

23

Claims of ineffective assistance of counsel in a criminal case is evaluated

under the two-prong test set forth in the U.S. Supreme Court's decision in

Strickland. Strickland v. washington, 104 S.Ct. 2052 (1984). To succeed on a

claim of ineffective assistance of counsel, the defendant must shows (1) that

his attorney's representation fell below an objective standard of reasonable-

nes_s; and (2) that due to counsel's unprofessional errors the results of the

proceedings would have been different. Strickland, 466 'U.-S. 687-88. A court

must indulge a strong presumption that counsel' s conduct falls within the

wide range of reasonable professional assistance. 80 L. Ed. 2d at 682. Strategic

choices made by counsel after a through investigation of the law and facts

relevant to plausible options are virtually unchallengeable, and strategic

choices made after less than a complete investigation are reasonable precisely

to the extent that reasonable professional judgments support limitations on an

investigation. The Strickland standard applies to a claim of ineffective

assistance of counsel arising under 6th and 14th Amendment of the U.S. Const.

`as well as Article 1 §10 of the Texas Const. Hernandez v. State, 726 S.w.2d 53

(Tex.Crim.App.1986). while the courts normally looks to the "totality of the

representation" and "particular circumstances of each case." In evaluating the

effectiveness of counsel, Ex parte Raborn, 658 S. w. 2d 602, 605 (Tex. Cr. App.

1983), we have also found that under some circumstances a "signal error of

omission by ...counsel [can] constitute[] ineffective assistance of counsel.

Ex Parte Felton, 815 S. w. 2d 733, 735 (Tex.Cr.App.1991). "

Applicant will now by number set forth all the reasons counsel was ineffective.

1). Counsel's was under a severe conflict of interest the entire time he was

representing applicant. The evidence to establish counsel's divided loyalties was

revealed in an off-the-record discussion. Vol. 4 P. 173 L.20. The essence of this

discussion is set forth on Pages one and two of this memorandum. In short all the

State witnesses are counsel's co-workers and making them look bad or exposing them

to disci_plinary, civil or criminal charges in efforts to vigorously fight for

applicant rights would have created a hostile work environment. white v. Reiter,

supra.'at,599.

Applicant seeks an evidentiary hearing to develop the record on this aspect of

ineffective assistant so he can do more than make a bald assertion which is not

enough to be entitled to relief. Cuyler, supra. at 1719_. Accordingly when the'

record is supplemented with the evidence applicant will supplement this `issue.

2) ."Counsel failed to properly preserve applicant's motion to suppress or urge a

timely hearing before trial. To avoid duplication this aspect of counsel is fully

developed in attached grounds of errors 14-16. “

3). Counsel failed to object when the state failed to produce the video (DVD) 20 ‘

days before trial as the law requires. Counsel did not receive the video until

' 10-30-12 which was only 14 days before trial. The trial judge strenuously warned the

prosecutor if he did not provide this video to counsel in a timely manner he may not

allow it to be used at trial. Vol.2' P.5 L.20-22. Therefore, counsel was given

red flag to object to the untimely production. Had counsel objected. This objection

24

would have been granted if not it would have been an abuse of

discretion. T.C.C.P. Rules 38.22(3)(5)(a), 39.14. Counsel's objection would have

allowed him at least 6 more days. which would have provided him time to retained or

consulted with an expert witness. which would have quickly lead to the discovery

that the video has been seriously tampered with because it was commingled with three

other Video's. This would have alerted counsel to object to its admission because it

was no longer in its original state. Then counsel could have proven Brazos county

did not have a Evidence control system. Therefore, they could not even begin to

establish the proper chain of custody.*Cuba ‘v'. State, 905 S.w.2d 729,735

(Tex.App.-Texarkana _1995). As such this video would have been and is totally

inadmissible, withoutr` this evidence there is a reasonable probability the results of

the proceedings would have been different. Before the jury reached their verdict

they requested to see this. video. Vol. 4 P.183 L.15. As` such the video was the linch

.pin that resulted in the guilty verdict. 1

4). For agreeing to allow the State to enter a redacted version of the t

inculpatory video and according to records signing a stipulation _to so allow them to

do so without applicant's knowledge. Applicant established in ground of error 16

that the video was totally inadmissible. See Lyons v. McCotter, 770 F.2d 529_,534

(5th Cir. 1985)("To pass over the admission_of prejudicial and arguably inadmissible

evidence may be strategic to pass over the admission of prejudicial and clearly

inadmissible evidence, as here, has no strategic value."). t

Furthermore, the trial judge thoroughly warned-the prosecutor and counsel that

.any stipulation once trial begins must b_e i_rl writing. Vol. 4 P.19 L.20-22. In a

criminal case the stipulation must be in writing signed by the applicant in open`

court and approved and signed by_ the judge and filed in the record.' Ellard v. State,

650 S.w.2d 840,841 (Tex.Cr.App. 1983). See also Tex.C.C.P. Art 1.15. The record is

void of any such stipulation. Even in the most liberal interpretation the complete

terms‘of the stipulation must be in the record. If the complete terms don't appear

in the record the stipulation is void and_ of no effect. See 'Howeth v. State, 645

S.w.2d 787,789 (Tex.Cr.App.1983)("The record of appeal is as bare as Mo_ther

Hubbard's cupboard concerning what the "contents" l of the ordinance might

be...nonetheless, the stipulation must be complete as~ to`the object of the

stipulation."). Counsel was so grossly ineffective that he not only did not object

to obviously inadmissible evidence but agreed to allow it to be admitted by illegal

means. Id. at 789; Ellard v. State, Supra. at 481. The exact terms of this agreement

of this stipulation is obviously unclear. Vol.4 P.' 34 L.12-17 "Judge the parties

."\

25

have a stipulation regarding the publishing of this exhibit. And pursuant to this

stipulation --- Le__ca_n_m:_t tmit i_n _th_e_ record _l_a_t_L [never to do so]. MR. GRAY: we

have an lagreement. P.142 L.18-25. "MR. CALVERT: Judge, at this point in time, we

have previously offered States's Exhibit No. 3, pursuant to a stipulation with the

Defense, certain portions of the audio were redacted.' [we have no ideal what

portions were agreed to be redacted] For these purpose now, [It's obvious this

stipulation has ever changing terms] we are going to offer all of the State's _

Exhibit No. 3 with the audio included." The record verifies the terms of' this

alleged stipulation were not in the record and were obviously ever changing to what

ever suited the prosecutor. with no objectios. Therefore, this stipulation is

void. lloweth v. State, Supra. at 789. without this evidence there is a reasonable

probability the results of the proceedings would have been different.

5). Counsel failed to object when the State failed to produce either officer Ficke

or the CI. for cross-examination. Applicant had a constitutional right to `

cross-examine officer Ficke because he is the actual person that prepared the

Vehicle Inventory Report. Meledez, Supra at L.Ed.2d 326-328. This denied applicant

his right to subject this report to adversarial testing it in ~the crucible of

cross-examination. Id at 326,328-329. This would.have determined but limited to

whether the- gun and jacket were actually listed on a separate evidence sheet as'

stated by counsel but does not exist in the record as is required by policy.\Also

the non-existing chain of custody. This would have provided the necessary evidence

applicant needed to have the motion to suppress granted. ' »_

Applicant had a right to cross-examine the CI as admitted after the state

_rested their 'case; The only evidence in the record that identifies applicant in the

vehicle is the CI Vol.4 P. 110 L.7-12. Counsel had articulated all the reasons he

‘had a legal right to cross-examine the CI: Vol.4 P.108 L.2-11 "...[o]nly that the

person is reliable. we don't have any specific information as to, you know, the

description of my client, large male.'lle was wearing a coat. He wasn't wearing a

coat. The vehicle was a-black truck. small black truck. whether there was an LP--I

mean, there's just--we just don't know these things." Then the trial court

sanctioned applicant's constitutional right to cross-examine the CI. Vol.4 P.108

L.1-llc "THE COURT: All right. I'm a little more concerned about the fact that he

was never identified in the vehicle, merely by a description of a confidential ~

therg gl_d i_d_entify him pefore they M _th_e vehicle M."‘ Counsel once again

articulated the reasons he has a right to cross-examine the CI. Vol.4 P. 111

26

L.12-15. "...we don't know about any of the specifics, how he described my client,

the vehicle, any of these things." '

v 4 Counsel at this point knew without this information there could have been no

stop, no arrest, no search no gun and no 7case. Also knew applicant had a

constitutional right to cross-examine the CI and he had the judge's support, yet he

still failed to object. Meledez, Supra. at 328-329. This decision can not be

considered trial strategy. Strickland, Supra. The CI's information which is the most

vital evidence in the entire case. without it the police had no ideal applicant was

any where around, lwhat he was driving _and more importantly that he had a pending

arrest warrant that was only 12 hours old that only the City of Bryan Police

Department were aware of, Vol.3 P.167 L.6. See also Vol.6 Ex. #1. without this vital

information there would have been pp §tgp, pp arrest and pp search, pp gup, pp

pa§e! Therefore, Applicant had a constitutional right to test the CI's description,

and how he obtain this knowledge in a cubical of cross-examination. Meledez, supra

at 328-329. Even` if it would have had to be in camera. Bodin v. State, 807 S.w.2d

313,318 (Tex.Cr.App.1991). Due to counsel's lack of objection which would have been

sustained if not the ~judge would have abused his discretion. Id. at

328-329. Applicant was denied his constitutional right to subject this vital

evidence to adversarial testing. These two witness were the very foundation of the

state's case. without the hearsay evidence supplied by the CI_ there would have been

no stop;arrest or subsequent confiscation of the gun. without a proper Vehicle

inventory Report the gun would have been ruled illegally obtained and

inadmissible. Colorado v. Bertine, 107 S.Ct. 738,743-44 (1987). Because this is the

very nexus of thel evidence the State's case is founded upon and it was never

subjected to adversarial testing, this error of counsel is a structural error it is

not subjected . to a harm analysis. Gochicoa v. Johnson, 53' F.Supp.2d 943,950

_(w.D.Tex.1999)("In this Court's opinion, the error is instead a structural one,

Abecause the error committed by counsel were so egregious that the prosecution's case

was never subjected to meaningful adversarial testing. Thus, analysis under the

prejudice prong of Strickland is not necessary.").

Also this one error of counsel alone is enough to find counsel ineffective. §_

'Parte Felton, Supra. at 735. '

6). Failed to object to hearsay statements and request an immediate ruling.

The State was allowed to prove that applicant was the driver of the truck by

hearsay testimony which was the most essential evidence in the entire case. If this

27

evidence was objected to and a ruling obtained the stop, arrest and subsequent

search would have been ruled illegal, or at least this issued would have been

' preserved. t '

Officer Terry Young testifi-ed, that he could not and naturally did not identify

applicant as the driver. Vol.4 P. 58 L.18-19. "I may have been about aggg_lg pp g

behind everyone else._" Later on cross-examination by double hearsay that someone

else learned from someone else that applicant was in the vehicle. Vol.4 P.75 »'

L.8-10. "Investigator Ledesma had received information that Ms. Campbell and

Mr. Greer were together in the vehicle..."

Officer Ledesma testified that he could not and did not identify applicant as

the driver before he was arrested at gunpoint by forceful detention. Vol.4`P. 82

L.2-3. "1 was in the vehicle_a_t t_he ye_ry_ M. _I came in after-- right after the

stop." On cross-examination he admitted the only way he knew applicant was in the

truck was by information related to him by the CI. Vol.4 P.88 7-11. "Okay. Prior to

receiving that call from the confidential informant, you had no_ direct personal

knowledge that Mr. Greer was, ip iac_t,_ _ip _tth particular vehicle~l j_s gl_a_t

correct. L 131 §Lj._ After the state rested their case the judge agreed no one

testified that they personally were able to identify applicant as the driver before

he was arrested. Except by the description given by'the CI. Vol.4 P.108 L.12-17.

"THE COURT: All right. I'm a'little more concerned about the fact that the was never

identified in the vehicle, merely by a description of a confidential informant. And,

yes, there were warrants out,l but they actually have to see him in there and

identify m- before Llle_y_pu_l_l__th_e vehicle M" The state agreed that the'only

evidence in the record that identifies applicant as the driver before he was

arrested at gun point was'the CI's.' Vol.4 P.110 L.7-12.' "[w]e have a known inform-- k

a known person making a presumptive--a legally presumptively reliable tip to law

enforcement that these two people are in this vehicle. That's t_h_e evidence that's i_n

tg record-g f_ar_."_ Therefore, all parties acknowledged that the state was able to

establish applicant.was the driver of the vehicle before he was pulled over only

through hearsay testimony, Also the record clearly demonstrates counsel made no

objection. This hearsay testimony was offered to prove for a fact that applicant was

identified as the driver before being forcibly stopped. Counsel failed to"'object-to

this inadmissible hearsay testimony, he therefore, wholly abdicated his role in_ the

adversarial process, thereby depriving applicant of a fair trial. Gochicoa

v. dohnson, 53 F.Supp. 2d 943,953 ((w.D.Tex.1999). See also Sanchez v. State 243

________9

S.w.3d 57,64-65 (Tex.App.-Houston [1$t Dist.] 2007) ("...counsel...failed to object _

28

to officer Morales‘s testimony as to what the confidential informant told him on the

grounds that it was hearsay...here, the testimony in question did ppt_ reveal the

details pf jgy; information provided tp_Morales."). This hearsay information effected

applicant's substantial rights by allowing the state to prove this essential

elements of case by inadmissible hearsay; Schaffer v. State, 777 S.w.2d 111,113

(Tex.Cr.App.1989). As such this case should be reversed. .

Had counsel objected to this hearsay his objection would have »been granted if

not it would have been an abuse of discretion. See Schaffer v. State, Supra at 113,

See also TEX.R.EVID 801(a). without this hearsay testimony there is a reasonable -

probability the results of the proceedings would have been different.

7). Failed to object to backdoor hearsay statements and request an immediate

ruling. ' _

when the prosecutor artfully asked questions of one witness about another

person's demeanor, this is nothing less than the prosecutor soliciting backdoor

hearsay (indirect hearsay). Vol.4 P.86 L.4-5,8-9.). See Schaffer v. State, Supra at

113 ("..,the hearsay prohibition through artful questioning designed to elicit

hearsay indirectly, in short, "statement" as defined in Tex.R.Civ.Evid.BOl(a), now

see Tex.R.Crim.Evid. 801(a) necessarily includes proof of the statement whether the

proof is direct or indirect."). The prosecutors questions were designed to obtain

hearsay indirectly which is still hearsay. Id. at 113. Had these 'statements been

objected to the objection would have been sustained. If not it would have been an

abuse of discretion. Id. at 113. without this hearsay there is a reasonable

probability the results of the proceedings would have been different. Stickland,

Supra. s , _

8). Failed to allow Applicant to review the video (DVD) even in the face of

numerous requests before trial so he could make an intelligent and informed decision

. to accept the state's plea offers or go to trial.

Applicant repeatedly wrote letters to trial counsel informing him he needed to

watch the video so he could decided whether or not to accept the state's plea offers

which were eight, five years prison time. The State went all down to two years

State Jail right before voir dire. Because counsel failed and refused to do so

_applicant's decision to reject the state's numerous plea offers were not an informed

and intelligent decision. See Hill v. Lockhart, 106 S.Ct. 366,369 (1985)("...0ur

concern in McMann v. Richardson [90 S.Ct.1441 (1970)] with the quality of counsel's

performance in advising a defendant whether to plead guilty stemmed from the more

general 'principle that all defendants facing felony charges are entitled to the

effective assistance of competent counsel."). Applicant's decision to refuse the

State's plea offers is based upon counsel's failure and refusal to allow applicant

to view the DVD.~ Thereby providing applicant the knowledge of the strength of the

evidence against him. Because counsel refused and failed to provide applicant the

'_ information he needed to make_a well informed decision, which is the core function

of counsel during the time a defendant»is deciding whether or not to accept the

State's plea offer. This failure of counsel rendered applicant's decision

unintelligent, unknowing and involuntary. C/F Burk v. State, 80 S.w.3d 82,93

(Tex.App.-Fort worth 2003); Johnson v. State, Supra at 19 ("If, prior to trial,

appellant had listened to the audiotape her overall strategy might have been

substantially different. For example, she might have considered a plea."). `

Applicant's has now'a.ttached these numerous letters collectively as Ex.'s B 1-B

5. Once the DVD was given to counsel on 10-30-12 counsel only came to visit

applicant once at the county jail during this time before trial, this visit only

lasted 20 minutes at the most. _The video was at,least over one hour therefore, it

was impossible for counsel to have shown it to applicant. Applicant has attached a

copy of the jail visitation log as Ex-. C.

Had counsel allowed applicant to view this inculpatory DVD it. would have

convinced applicant to plea guilty and accept the eight, five or two year State dall

offers. The persuasive nature of the video finds support in the record. Vol.4 P. 183

_L.15. Once the jury viewed the DVD it persuaded them to find applicant guilty. For

these reasons applicant's decisions to refuse the state's plea offers were

unknowing,- unintelligent and involuntary decisions. Hill v. Lockhart,

Surpa. 369. For this reason this writ should be granted and the plea offer be

reinstated. _ v

9). Failed to object to the introduction of critical evidence without establishing

a proper chain of custody.'e.g. Gun, DVD or jacket.

Counsel failed to discover that Brazos Co. Sheriff's Department did not have an

evidence control system from the date of arrest to the date of trial. Therefore, it

would have been impossible to establish a chain of custody for all the inculpatory

evidence. Coupled with the discovery there existed no separate evidence sheet

period. Contrary to counsel's belief. Vol.4 P.156. L.13-17. `

This error is cumulative to the fact counsel failed to discover and object to

the introduction of the DVD because it was the product of four DVD's commingled into

one. Cuba v. State, supra. at 735. Had counsel objected for these two reasons the

objections would have been sustained and the evidence ruled inadmissible. If not it

would have been an abuse of discretion. Id. at 735. Also this would have preserved

error for appeal. without this DVD there is a reasonable probability the results of

the proceedings would have been different.

Regarding the gun and jacket the judge would have had to instruct the jury that

this evidence has not been subjected to a proper chain of custody which effects its

credibility. Id. at 735 Rule of Evid. 901. Had the judge not done so it would have

been an abuse of discretion. 901 Supra. Therefore there exist a reasonable

probability the results of the proceedings would have been different absent these

errors of counsel. v 1 _ j

10). Counsel failed to object when the State stated that Applicant was: "only" in

jail for the offense he is now convicted of. Vol.4 P.9-15 which is the hearing on

the admission of jailer Lakeith McKinney‘s highly prejudicial and inflammatory

testimony. This is true because, first it brings to the juror‘s minds, applicant is

in the County dail wearing jail cloths, which in effect is illegally‘ trying

applicant in jail cloths. 364 F.-Supp 335. Doing is so prejudicial it's automatic

reversal error. Second that applicant is in jail for breaking the rules. P.12

-L.15. The judge asked "was -he in jail for anything else other than this particular

cause of action? CALVERT: He was not judge." This is misleading and presents false

facts and just plain lying to the judge. Duggan v.State, Supra rat 469 ("Nor does it

matter that the falsehood goes merely to the issue of credibility. See M, Supra

("A lie is a lie no matter its subject..."). Because in fact applicant was in jail

for operating a motor vehicle without registration, theft of 1,500-20,000 dollars

magistrated in Brazos Co. on 5-19-12. warrning #427138. warrant #12-04020_-02, and a

blue warrant. These three Ex.s are attached collectively as Ex. D-l,_DT-`?_',

Trial counsel's failure to object caused applicant harm because the state was

allowed to use McKinny‘_s testimony under the false context that applicant was only

in jail for_ a felon in possession of a firearm. So the statement of "I am in jail

for breaking thev rules" can only be applied to that charge. when in' fact it

didn‘t. Had trail counsel had _any kind of grasp of his client's, (applicant's)

actual situation and asked_`for an immediate ruling on his'running objections, it

would have been granted or it would have been an abuse of discretion. Applicant gave

counsel a note during trial in efforts to get counsel to object to his testimony or

impeach his credibility. See Ex. E. Counsel's refusal resulted in allowing the state

to paint a false picture _of the evidence. Means v. State, 429 S.w.2d 490

(Tex.Cr.App.1986). Had counsel consulted with applicant, applicant would have

provided him a copy of the grievance that had been filed against this witness by

31

another offender in which applicant was a witness. Applicant has since tried to

obtain a copy of this grievance. By applicant's father requesting it through a

freedom of information act request. See Ex. F. This request was denied alleging

there was a pending criminal investigation involving this jailer. Ex. G. Also Ex.

H. which verifies the cause No. Also Ex.l. which is a news paper article in which

this jailer was successfully indicted for sexually assaulting inmates, "jailer

having sex with inmates.'f This grievance was` filed against this jailer for sexual

harassment. This grievance could have been used to impeach his credibility. This

_ would have provided the judge with evidence as to why this jailer was willing to

lie. .This evidence would have severally undercut the already questionable probative

value of this evidence. Gilmore v. State, 323 S.w.3d 250,254. Had counsel made these

objections and presented the attached evidence there is reasonable probability the

judge would have ruled this evidence was inadmissible, thereby changing the results

of this proceeding and the results of the-trial. Strickland, Supra.

11). Counsel failed to object when applicant was not allowed to be present at all

stages of the trial. E.g. when the jury sent the note out and the judge sent a

reply. we now know the record is voidv of this mandated information, 36.27

Supra. Vol.4 P. 183 L. 14-16. See "U.S. v. Smith, Supra at 471 ("..[a] criminal

defendant be present "at every stage of the trial," the Sixth‘ Amendment's

confrontation clause, and the Due Process Clause of the Fourteenth Amendment. Thus,

unless waived discussion concerning the jury inquiry and the court's response must

take place on the record in the presence _oith_e defendant."). Had counsel objected

to allowing the judge and prosecutor having an exclusive private, long extended

meeting with the deliberating jurors without applicant being present, this objection

would have been sustained, if not the judge would have abused his discretion, Id. at

471. ` _

This error of counsel effected applicant's substantial rights to be present at

all stages of trial, as well as preventing the prosecutor and judge from having this

extended private ex parte meeting with the deliberating jurors. Therefore, this

error should not be subjected to a harm analysis. Gochicoa v. Johnson, Supra at

950. Additionally this objection would have preserved a complete record of these

events. The courts having found one error of counsel is enough to establish

ineffective assistance of counsel. Nero v. Blackburn, supra. Therefore, absent these

errors of counsel there is a reasonable probability the results of'the proceedings

would have been different. Strickland, supra.- "

12). Failed to object to the numerous times the State presented false evidence. ln

32

this case applicant was charge as being a felon in possession of a

firearm. Applicant stipulated to the fact of being a felon still on parole. Vol.6

Ex. 14. This left the state with the burden to prove only two el ements. 1). That it

a firearm; 2) that it was in applicant's possession. The state' was allowed to prove

both using false evidence. The first element was proved based upon false and M_

existing evidence! Vol.4 P.164 L.5-7. "Because you know that was a firearm because

_tMtL§ stipulated _t_g..." There is no such stipulation. Applicant has supplied the

entire record. This matter has further been set out previously in error No. 9.

The second element was.also proven with false evidence. Vol.4 P.179 L.10-14

"...the lone issue in front of 'you is _r_lpt possession. There can be no doubt. Again

we are there beyond a shadow of a doubt that this man was exercising care, custody,

control or management over the pistol. we know that why? Because i_t Las _ip h_i_s_

vehicle..." The weight the jury placed in this false evidence "it was in his

vehicle" is demonstrated by their commitment during voir dire that if its in his

truck its in his care, custody and control. Vol.3 P.41-44. Even if someone else

claimed ownership of the gun. Vol.3 P.65-70.

what makes counsel's lack of'objection to this obvious false testimony such a

deplorable and despicable act is counsel knew for a stone cold fact it was

false. Vol.4 P.1ZlKL.3-4. "And we don't even have proof'its a firearm." Vol.4 P.72

L.24-25 P.73 L.1-5. ",Q. Now, the vehicle that Mr. Greer was driving that's actually

registered'tga kennith Greer, is that right? A. _Ye§,_`§iL Q. And so, that would be

David's _d_adLLt actually David, i_s__tm correct? A. Xe§¢_si¢

The cumulative effects of this false and prejudicial evidence being admitted

du_e to counsel's poor performance is driven home and cumulative, by allowing the

prosecutor to falsely represent what applicant's only witness testified to thereby,,

bolstering thev effects the previously presented false evidence would have on the

jury verdict. Vol.4 P. 179- L`.1-2. "Monisha told you that. It's registered to his

parents, but 'that's hi__s truck. That's hj_s_ mc_k_.'" This error of counsel was

cumulative to the fact he allowed the prosecutor to literally pound this false

evidence into the jurorsl minds until a minute before they were released to reach a

verdict. Vol.4 P.178 L.24-25; 179 L.2,14-15,2_0-22; 180 L`.25; 182 L.22.

Counsel knew this- evidence was false and he also knew the prosecutor was using

it to prove the only two necessary elements to obtain a conviction and influence the

jury verdict. Had counsel made an objection it would have been sustained if not the

judge would have been abusing his discretion. See earson v. State, 649 S.w.2d

'786,789 (Tex.App.-Fort worth 1983)_("Certainly, we now know, reversal must follow

where the prosecutor deliberately presents a false picture of the facts by knowingly

using perjured testimony." Citing Means v. State, 429 S.w.2d 490 (Tex.Cr.App. 1986).

There can be no reasonable trial strategy in allowing the prosecutor to use

' false evidence! For sure allowing them to use it to prove the only two remaining

elements necessary to obtain a conviction. This error of counsel harmed and

prejudiced applicant by allowing his' trial to be fundamentally unfair. Thee is a

reasonable probability that " without these errors or counsel the results of the

proceedings would have been different. §M<_l_arg, Supra. '

13). Failed to object when the state introduced the illegal incomplete inventory

list. Counsel knew the inventory list did not include the gun-or jacket which

established by mandatory required procedures for a legal inventory search to be-

conducted by the Barzos County Sheriff's Department. which trial counsel works for

as a ride a`long. Yet not only did counsel fail to object but actually actively

assisted gewin establishing _tl£ inventory _lls_t_ t_ha_t M prepared _t_>y_ hip g

worker w proper by asking the court lto consider a non-existing evidence

sheet. Counsel told the judge the gun and jacket are properly listed on this

evidence sheet in accordance to policy. Vol.4 P.156 L.13-17. The record is totally

void of any such evidence sheet. There can be pp t@]_ strategy in helping the state

justify introducing an illegally prepared inculpatory document by telling the` court

its justified in doing so based upon a false non-existing _document. This is yet one

more prime example of the manifestation of counsel's divided loyalty. Asking the

court to consider non-existing evidence that is detrimental to applicant's case is

far more than unreasonable. In times of war helping the enemy is called

treason. without this evidence there would have been no case. without counsel

helping the state justify the introduction of an ill-prepared document which in turn

was used to justify the confiscation and subsequent arrest for a felon in possession

of a firearm and trial. There is a reasonable probability the out come of the trial

would have been different. Strickland, Supra. d

14). For assisting and urging excuses for the state to deny applicant's his 6th

Amendment right to cross-examine officer Ficke. Vol.4 P'.89 L.24-25 P.90 L.1-9.

The State offered the Vehicle Inventory Report prepared and signed by Deputy

Ficke without objection. See Vol.6 Ex.5. what is so shocking is that counsel

actually set forth the facts that the Supreme Court used to rule- that applicant has

the right to cross-examine this witness. Vol.4 P.89 L.18-21. "Q.I don't anticipate

j_s_ that correct? _l_l4 Yes, sir; lp my knowledge. yes, sir. See Meledez, Supra. at 328

34

as further set out on page four of this memorandum. Then counsel in his next breath

urged the court to introduce this Vehicle Inventory Report without objection in his

mistaken belief that it would prevent Officer Ficke from having to testify. Also _

counsel wanted the judge to know trial counsel was the one that was responsible for

the inventory sheet being introduced into the record and not the state prosecutor.

The record` further demonstrates the judgewasl shocked and surprised that

counsel had not objections and brought his concerns to counsel attention. See Vol.4

P.90 L.5-9. "MR. GRAY: we have jul objectio . Judge. THE COURT: No further

objection? MR. GRAY: No further objection. Judge. that was actually at our urgence,

[to introduce the inventory sheet not the state's] and that should prevent the

deputy jrgm having tp testify." This record demonstrates two dramatic

things. 1). Counsel did not know the law governing the facts of this case. 2). His

willingness to help the state to deny applicant his constitutional right to

cross-examine this witness thereby subjecting the state's case to adversarial

testing. See Powell v. Alabama, 53 S.Ct. 55, 59 (1932); Meledez, Supra. at 328;

Gochicoa v. Johnson, Supra at 950.

Counsel's statement _is classified as oxymoron as is undeniably pointedly

foolish. The exact reason counsel urges to court` to deny applicant his

constitutional right to cross-examine officer Ficke is the very reason applicant has

' a' constitutional right to do so. Melediz, Supra at 328-329. Applicant suffered

egregious harm by counsel turning in to a better prosecutor than the state's

prosecutor at denying applicant his constitutional right to cross-examine this vital

witness and evidence. For sure there_ is a reasonable probability that the results of

the proceeding would have been different absent these errors of counsel. Strickland,

Supra.

' 15). Failed to object when state introduced critical inculpatory evidence that was'

altered e.g. several different videos selectively made into one. Therefore, this one

video is impossible to authenticate for legal introduction. Vol.4 P.151 L.6-7 Front

camera and backseat camera of Ficke's car. Vol.4 P.144 L.10-12, Vol.4 P.166

L.1920. Front and back seat of Ballew's car. l

Counsel failed- to object because the DVD wasv hopelessly commingled and

impossible to authenticated Selectively putting bits and pieces of four different

DVD made into one is evidence that not only has been tampered with, but seriously,

v and undeniably tampered with and altered. Furthermore, there is no chain of

custody. This inculpatory evidence was obviously inadmissible. Cuba v. State,

Supra. at 735. Counsel did not simply pass over obviously inadmissible inculpatory

35

evidence which is not within the realm of trial strategy. See Lyons v. McCotter,

Supra. at 534. Counsel went one step further by turning into a defense prosecutor by

assisting the state prosecutor by engaging in illegal means to have this

inadmissible evidence introduced by way of a ever changing oral stipulation in the

middle of trial without placing the exact terms of this stipulation into the

record. See lloweth v. State, Supra at 789. Furthermore, as the judge stated any

stipulation that is offered once trial starts must be in writing. Vol.4 P.19

L. 20-22`. which is supported by the decision of the Tex. Crim. App.‘s See Ellard

v. State, Supra at 841.

The defense prosecutor agreeing to allow this inculpatory DVD to be admitted,

and not simply not objecting to it but orchestrating and conspiring with the state

prosecutor by devising an illegal stipulation to insure this inculpatory evidence

was introduced so the jury could consider it repeatedly. Counsel went so far as to

during closing arguments to remind the jurors they have this DVD to refresh their

memory. Vol. 4 P. 168 L.15-17. The very actions of the jury verifies that the DVD is

persuasive and it' s favorable for the state. They were having trouble reaching a

verdict they watched this DVD and quickly returned a_ guilty verdict. Vol. _4 P. 183

L.14-16. P.184 L.3-5. Had it not been for these errors of counsel, this detrimental

inculpatory evidence could not have been introduced. Therefore, there is a

t reasonable possibility the results of the - proceedings would » have been `

» different. Strickland, Supra. '

16). Counsel refused and failed to allow the only defense witness to review the

, video to refresh her memory, and prepare her for cross- examination, stating that he

could not allow her to review the video because this would be witness tampering:

Fi`rst to not preparing this witness for cross-examination by allowing her

review both the DVD record and the taped interview is_ ineffective. Johnson v. State, _

Supra.; Mallet v. State, 9 S.w.3d 856,867 (Tex.App.-Fort worth 2000). Next not

allowing the witness to review the DVD based upon his misunderstanding of the law,

, "It would be witness tampering." This is yet one more instant of ineffectiveness of

counsel. Because counsel is required to have a firm grasp` of the laws dealing with

the facts of lthis case. Alabama v'. Powell, Supra. Flores v. State, 576 S.w.2d

632,634 (Tex.Cr.App.1978_`). It is well defined law that a__llowing~this witness to'

review this tape is not witness tamper. As such counsel is ineffective for such

ignorance of the law. Ex Parte Chandler, 182 S. w. 3d `350, 358 (Tex. Cr. App. 2005). '

The record speaks for itself. Counsel was so grossly ineffective that he not ~

only did not even allow the only defense witness to review the DVD or the audio

recording by the prosecutor but did not even inform her they existed. This in the

face of the fact that counsel knew she was going to clainl ownership of the gun and

if her testimony was believed applicant would be found not guilty. See Vol.4 P. 132

L.22-24. "Q" Are you aware that you were being video tapped at that point and

time?. A. No',4 l wasn't. Vol.4 P.126 L.2-5. "...are you aware that I was recording

that conversation? A. No, l wasn't aware that you were recording anything;

The harm and prejudice due to this error of counsel allowed the prosecutor to

"not" simply impeach her testimony but literally ambush her on cross-examination

with her statements in the video and audio recording. which subsequently allowed him

to point out these inconsistencies to the jury during closing arguments. Vol.4

P. 181 L.3-25 P.182 L.1-14. Additionally this allowed the prosecutor to use the

threat of the unknown recorded conversation to coerce her into testifying favorable

for the prosecution. Vol.4 P.126-132. This video was used repeatedly to impeach her

direct examination testimony. P.126-143. As a prime example see P.143 L.12-14. "Once

she found out she was being videotaped, on redirect, she changed her testimony and

said that happened later." Additionally this allowed the prosecutor to viciously and

relentlessly attack her credibility by reminding the jury it is their job to judge

' witnesses credibility. Vol 4 P.177 L.11-12. "...You're judging the credibility." The

prosecutor then explained why she had a reason to lie, then proceeded to bash her

credibility by portraying her to be a liar, not once, not twice nor even just three

times but eight times during closing arguments. P.180-182.

Counsel' s lack of preparing the only defense witness to testify resulted in the

ultimate harm--"the jury discredited her testimony and found applicant

guilty." Because if the jury would have believed her testimony (the gun was her's)

then they would have found applicant not guilty. Had it not been for this error of

counsel the results of the proceedings would have been different. Stickland, Supra.

v 17). Failed to object when prosecutor ndsstated the law. The Fifth Amendment right

includes the right not to incriminate others. Vol.3 P.85 L.7-9. Instructed the jury

after the jury charge had been read that the evidence; "does not have to be beyond a

reasonable doubt." Vol.4 P.165 L.14-15. Counsel's failure to object to these obvious

well known misstaatmemnt of laws are not with the realm of trial strategy also this

one error of counsel is enough to find counsel ineffective. See Andrew v. State, 159

S.w.3d 98,102 (Tex.Crim.App.2005);

"[tjhe Supreme Court said that, "In making [itsj determination the [reviewing]

court should keep in mind that counsel' s function, as elaborated in prevailing

professional norms, is to make the adversarial testing process work in the

particular case." Counsel failed to do so in the case when he failed to object

to the prosecutor' s misstatement of law...Defense counsel has a duty to

37

correct ,misstatements of law that are detrimental to his client. This duty

derives from counsel' s function "to make the adversarial testing process work

- in the particular case." There can be no reasonable trial strategy in failing

to correct misstatment of law that is detrimental to the client.")

See also Branch v. State, 335 S.w.3d 893,899 (Tex§Crim.App. 2001). There can

be ne reasonable trial strategy in failing to correct this false impression that was

harmful to appellant. See Andrews v. State, Supra at 103. Ignorance of well-defined

general laws, statutes and legal propositions is not excusable and such ignorance

may lead to a finding of constitutionally deficient assistance of counsel. See Ex

Parte Chandler, Supra at 358. The prosecutor gave the jury incorrect information to

determine applicant' s guilt. This is a structural error as it effects the very frame

llwork that trials proceed. See Pyles v. Johnson, Supra. at 993. As such its violation

defies analysis of harmless error. Id; at 995. Furthermore, it a violation

Tex. P. C. §2. 01. had counsel objected to these lnisstatements of law the objection

would have been sustained or it would have been an abuse of discretion. Anderws

v. State, Supra at 102. There is a reasonable probability the results of the

proceedings would have been different without these errors of counsel. Strickland,

Supra. - _

18). Failed to object when prosecutor made improper jury arguments.. See Mayberry

v. State, 830 S.w.2d 176,178 (Tex.App.-Dallas 1992)(“The permissible areas of jury

argument are well established. Proper subject of jury argument include (1) summation

of the evidence (2) reasonable deduction from the evidence, (3) answers to argument

of apposing counsel. (4) pleas for law enforcement."). The complained of arguments:

Vol. 4 P. 164 L. 4- 7. "So what does this all boil down to a whole day spent on

possession, knowingly, intentionally possessing a firearm. Because you know that was

' a firearm because it was stipulated to..." This argument injects new facts into the

record that are totally false, harmful and prejudicial to applicant. lt invites the

jury to based their verdict upon non-existing false evidence. Napue v. Illinois,

Sup ra., U. lS. v. Blakey, Supra. at 1560; U. S. v. Murrah, 888 F. 2d 24 (5th

Cir. 1998)("A prosecutor may not directly refer to or even allude to evidence that

was not adduced at trial."). See also Cooper v. State, ("however, such error is not

reversible, unless, viewing the record as a whole, we can conclude the argument is

extreme or manifestly improper, violative of a mandatory statute, or injects new

facts, harmful to the accused into the trial.").

Additionally prosecutor instructed the jury that the vehicle was

applicant' s Vol. 4 P. 178 L. 24- 25 179 L.2,14-15,20-22; 180 L. 25; 181 L. 1 182 L. 22. we

know this is false and the prosecutor is using it improperly to influence the

verdict, as such it's manifestly improper, Guidry v. State, 9 S.w.3d 133,154

(Tex.Cr.App.1999). Additionally the prosecutor falsely stated that: "Monishia told

you that. It's registered to his parents but that's his truck._That's his truck.'

Vol.4 P.179 L.1-2. This argument is false, because no such testimony exist, it

injects new facts into the record harmful to applicant. Also it was used for the

improper purpose to bolster the credibility of his previous false

Additionally the prosecutor argument misstated a well,defined law after the jury

charge was read. "...you are the finders of fact, you can find these facts and add

them up. It does not have to be beyond a reasonable doubt." This argument violates

mandatory statues, Tex.P.Code 2.01 and the very structural foundation of criminal

trials. This argument can only be viewed as a improper method calculated top produce 1

a wrongful conviction. U.S. v. Blakey, Supra. at 1560. All of these arguments are

improper and counsel did not object to any them. Had counsel objected the objections

would have been sustained if not it would have been an abuse of discretion. without

these errors of counsel there is a reasonable probability the results of the

proceedings would have been different. Strickland, Supra. '

19). Failed to request findings of facts and conclusion of law after the motion to

suppress was denied. Had counsel done so it would have been granted if not the judge

would have abused his discretion._ State v. Oages, 210 S.w.3d 643,644

(Tex.Cr.App.2006).-Counsel's failure to do so harmed and prejudiced applicant's

right to effective assistance‘of counsel on appeal. Evitts v. Lucey,» Supra. Also

this denied`the appeals court of an adequate record on appeal to. properly review

this v trial court's ruling. State v. Cullen, 195 S.w.3d 696,698

(Tex.Cr.App.2006). Additionally this lack of an adequate record is harming and

prejudicing applicant's post- -conviction proceedings in both State and Federal

court. Tamez v. Director TDCJ- -CID, supra. at 642.

20). Failed to object when the jury were allowed to take this video and player

into the jury room during deliberation. Due the lack of the mandatory record and

possible changes this record may bring about applicant can not adequately present

and brief this issue at this time, but will once record is properly supplemented.

21). Counsel failed to object to prosecutors production and use of custodial

integration video (DVD) in violation of Texas law. The courts in Nguyen v. State,

292 S.w.3d 671,676 (Tex.Cr.App. 2009),l sets out all the requirements that a

electronically recorded custodial integration statement must meet before it's

admissible; 1). It must verify that Miranda warning rights were read and

argument. U.S. v. Murrah, Supra at 26; Guidry v. State, Supra at 154.

39

waived. 2). The~ recording must be accurate and not have been altered; and 3). Trial

counsel must be given a true, complete, and accurate _c_opy_ gf al_l Mdj_ng§ at mg

2_0 d_ay_§ before trial. 'The video verifies the miranda warnings were never

read. Therefore, it was impossible to knowingly waive them. The one video was the

product of four DVD's selectively commingled into one. It‘ was not provided toy

counsel until 10-30-12 (Vol.€ Ex.3) at the earliest and trial was on 11-13-12. As

such the admission was prejudicial and clearly_inadmissible, counsel's failure to

object to its admission is unexcusable. The failure to do so has no strategic

value. Lyons v. McCotter, Supra. at 534. Had counsel objected to its illegal nature

the objections would have been sustained if not _it would have been an abuse of

discretion. Nguyen v. State, Supra at 676. without this evidence there is a

reasonable ' probability the results of the proceedings would have been

different. Strickland, Supra._ ' 1

22). Counsel failed to pursue exculpatory evidence. Dispatch logs of Brazos

Co. Sheriff's Dept. and Bryan Tx. Police Dept. for February 16, 2012 specifically

for the hrs. 1pm-4pm. »Had counsel obtained these logs they would established that

the warrant for applicant's arrest was not confirmed'until after applicant was

pulled over at gun point and placed under'arrest. This evidence could have been used

to prove the stop, arrest and search was illegal._Also it could have been used to

impeach the credibility of the state's witnesses. This is therefore, Brady

material. United States v. Bagley, 105 S. Ct. 3375 (1985). Had counsel d1§covered

this evidence there is a reasonable probability the outcome of the trial woqu have-

been different. Strickland, Supra. '

23). For asking the judge and jury to consider evidence that is not in the record

that is detrimental to applicant. when it came to the attention of the court before

t_he j_\_l_ry_ that the jacket and gun were not on the Vehicle Inventory Report as

mandated by policy counsel informed the courtroom that it was listed in the evidence

sheet. This evidence i§_ gt _in _t_hg record. This allowed the court and jury to

consider evidence that is not in the record and which is detrimental to

applicant. This non-existing evidence could have been considered by the trial court

and appellate court when denying applicant's motion to suppress. There is a`

reasonable probability that without this non-existing evidence being considered the

results of the hearing on the motions to suppress and trial would have been

different. Strickland, Supra.

24). Failed to question venireperson Robert Cessna if his personal friendship with

the presiding judge would have effected his ability to be a fair and impartial

juror, Applicant can not adequately`present this issue due the lack of mandatory

record but applicant has a motion pending to have the record supplemented with the

mandatory record is supplemented applicant will fully brief this issue.

25). Improper jury arguments.- of coun\sel. Applicant will no_w justify .coining trial

counsel the defense prosecutor. Counsel did more to criticize and place Applicant's

fifth amendment right 'to remain silent prejudicially in the minds of the jurors in

closing arguments than the prosecutor is legally entitled to. See the defense

prosecutor's closing arguments. Vol.4 P.170 L.1,11. "...There's no testimony from

David...There is no statement from David.'.'."' This is direct statements of

applicant's failure to testify. Had the state prosecutor made these statements

reversal error would have been required. Anderson v. State,7 813 S.w11.177

(Tex.App.-Dallas 1991) citing Johnson v. State, _ 611 S.w.2d 649,650

(Tex.Cr.App. 1981). Counsel was well aware that the jurors were already struggling

to not hold applicant's failure'to testi __ gzag_ainst him. Especially mixed with the

fact they were told applicant was a convicted fel-ony. See Vol.3 P.90 L.5-13. Counsel

also knew more jurors were excused for cause because they would hold it against

applicant if he did not testify, than any other reason. Vol.3 P. 113 L.16-18. The

defense prosecutor knew any comment on applicant"sq:';right to not testify was highly

prejudicial. This denied applicant a fair trial with an, impartial

jury. U.S. v. webster, supra. at 341. Yet the law allows trial counsel to do

so. nick-s v. state, su‘pra. at 304. `

The defense prosecutor conceded applicant's guilt which is the proverbial final

nail in the coffin. P. 174 L.19-25, 175 L.1-3.

"...They're going to talk about David's coat, you know, him saying that's not

his. Think about this. You've got a convicted felon. He's in a police car,

just like Monishia, in handcuffs. Officers comes up with a coat, “Hey, is this

yours?" Officers wouldn't be bringing a coat unless he found something in the‘

coat, right? So, is it shocking that.@ would _sgy_ that's Mmy_ coat?

This is a clear' admission of guilt. Defense prosecutor clearly admitted it was

applicant's coat. He also admitted that applicant was a convicted felon. Also

admitted that applicant knew the pol'ice found something in his jacket that a '

convicted felon could not possess e.g. a gun. That applicant was a lair and that

'vthi's is the_ reason he lied. Also that the jury could not be surprised that he

;_;,',_';;_.lied’.;v__Co'unsel connected the gun to the jacket and the jacket to applicant. Also that

1111-"_`appl.-ic_ant knew the gun was in the jacket. Additionally that applicant lied but the

;j_u_r‘y.j' should understand why he lied and not be surprised.' Counsel had already allowed

13‘the state prosecutor to use false evidence to prove the truck was app.licant's, and

41

the gun was a firearm. As such counsel's admission conceded applicant's guilt.v See

Doherty v. State, 781 S.w.2d 439,442 (Tex.App.-Houston [1st Dist.] 1989):

"Fleming himself made remarks prejudicial to appellant. Feleming‘s remarks to

appellant, "you didn' t take all the money? " and, "what did you do, hit him

over the head first?" were heard 15- 20 feet away. Felming essentially admitted

his client' s guilt in the presence and hearing of the jury." -

There is no trial strategy in admitting applicant' s guilt. Stickland',

Surpa. This error resulted in further harm because it opened the door for the

prosecutor _to assassinate and annihilate applicant's character even though hew

testified. This was done by repeatedly telling the jurors he l.ied. Vol.4 P.179, 23,

180 L.3,8-9,12; 182 L.22. These were virtually the last words out of_ the defense

prosecutor's mouth before he dismissed the jurors. what juror would not believe

applicant was guilty if it' came out of his own counsel's mouth. Any chance applicant

had a fair trial was totally destroyed. This final one error of counsel alone is

enough to find counsel ineffective. Ex Parte Felton, Supra at 735.

GROUND 0F`ERROR N0.14: APPLICANT wAS DENIED HIS 6TH AMENDMENT RIGHT TO

EFFECTIle ASSISTANCE OF COUNSEL 0N APPEAL. »

GRGUND 0F ERRORv NO. 15: APPLICANT wAS DENIED HIS AND 14TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANT 0F COUNSEL ON APPEAL.

Applicant is constitutionally entitled to effective of counsel on appeal

pursuant to the 14th Amendment of the' U.S. Constitution. See Lofton v. whitle , 905

F.2d 885,887 (5th Cir.1990). Citing Evitts v. Lucey, 105 S.Ct. 830 (1985).

For a applicant to establish ineffective assistance of counsel on appeal

applicant need only show that a different outcome on appeal would have resulted but

for the error of counsel. Duhamel v. Collins, 955 F.2d 962,967 (5th Cir.7 1992); §§

Parte Owenby, 749 S.w.2d 880,881 (Tex.Crim.App.1988)(This second prong [of

Strickland test] requires that in the instant case the applicant must b_e able to

show that the outcome of his appeal would have been different if he was now allowed

an out-of-time-appeal on this issue). This involves a significant lower threshold

showing of harm, because counsel may have been ineffective on appeal for not raising

an issue or that issue raised was deficiently briefed. Duhamel, supra. at '1130-31.

Applicant asserts that his appellant counsel was ineffective because the trial

court denied counsel the mandatory complete trial record.-There is four

off-the-record discussions. Two applicant has recited to the best of his ability the

essential facts. See pages 1-3 of this memorandum. The jury note is missing and the

astounding extended private ex parte communications between the judge, prosecutor

and deliberating jurors. These missing mandatory records (36.27 supra) denied

42

appellant counsel the necessary records to file a motion for new trial with

supporting affidavit. Had counsel been provided these`records and filed the motion

for new trial seeking to develop these issues the motion would have been granted an

-a hearing would have been ordered. Lucero v. State, Supra. at 94`. This would have

allowed counsel to present a fully developed record supporting counsel's conflict of

interest. Cuyler v. Sullivan, Supra.'at 1719. That applicant was not present at all

stages of the tr`ial and ex parte communications between the judge and prosecutor

with the jury. U.S. v. Smith, supra. at 471-73. Also that counsel did not question

Mr. Cessna about his being impartial, due to being special friends with the

presiding judge. Cadoree v. State, Supra. at 789. Had this motion for new trial been

, filed, developing these facts and bring these issues up on direct appeal there is a

reasonable probability that if applicant was now granted an out-of-time appeal the

results of the proceedings would be different. Ex Parte 0wenby, 749 S.w.2d 880,881

(Tex.cr.App.lgaa); aiso strickiand, supra. `

Appellant counsel was ineffective because she failed to request a hearing on

the motion for new trial by filing a Setting Request form with the District

Clerk. See Clerk's Records P.70. Also sh_e failed to file the required affidavit and

attaching it to the motion for new trial as pointed out by the District

Attorney. See Clerk's Record P. 65. And appellant counsel failed to present issues

'in` her motion for new trial specifically requested by applicant. See attached

Ex. J. Had these issues been presented on a motion for new trial then the factual

bases for each claim would have been developed. Therefore, there would have been a

record to reference to, such as but not limited to, why trial counsel failed to

allow applicant to try on the jacket in front of the jury which is a XL and

applicant wears a 5X this would have been like putting 1a baby shirt on a giant, this

would have conclusively proven the jacket was not applicants. Like 0J Simpson "if it

does not fit you must acquit." Had counsel listed these issues in her motion for new

trial along with the necessary papers and attaching them with _her motion for new

trial. There is a reasonable probability the results of the motion for new trial

would have been different. Lucero v. State, Supra at 94. Thereafter, the results of

the direct appeal would have been different. Stricklnad, Supra.

Had counsel raised and properly briefed the issues presented herein there is 5a

reasonable probability a different out come would have resulted. The Honorable Fifth

Circuit held in McGrae v. Blackburn, 793 F.2d 684, 688 (5th Cir. 1986)(Because this

is not a case where counsel's deficiencies prevented ANY APPELLATE review, or where

counsel entirely failed to challenge the prosecution's case,1 McCarae's claim

43

requires a showing that counsel's errors were so serious that counsel was not

functioning as the counsel guaranteed to the defendant by the Sixth

Amendment. Hamilton v. McCotter, 772 F.2d 171,182 (5th Cir.1985). See also

Strickland, supra at 2064"). In the instant case appellant counsel COMPLETELY FAILED

to challenge the Prosecutor's case on Grounds of error 2-12,16,17 also the issues

she did raise were deficiently briefed which denied applicant any meaningful review

which shows applicant was denied his 6th and 14th Amendment right to effective

assistance on appeal. Id. citing Strickland, Supra at 2064.

Applicant has shown and satisfied his burden under Stickland by showing that

the issues now raised if appellate counsel had raised them and properly briefed them

on direct appeal reversal would have followed and a new trial ordered years ago.

The denial of effective assistance of counsel on appeal prejudiced applicant by

denying him proper and/or presentation of these issues now being presented. See

U.S. v. Phillips, 210 F.3d 345 (5th Cir.2000). There is a reasonable probability

that, but for counsel's unprofessional errors, the results of the proceedings would

be different if applicant was now granted an out-of-time-appeal. Ex Parte Owenby,.

supra at 881.

GROUND OF ERROR NO. 16: APPLICANT wAS DENIED HIS 6TH' AND 14TH AMENDMENT RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BECAUSE HE FAILED TO_ADEQUATELY

-PRESENT AND PRESERVE APPLICANT'S 4TH AMENDMENT CLAIMS. '

This issue is governed by the supreme court's decision in Kimmelman v.

Morrison, 106 S.Ct. 2574 (1986). Counsel completely failed to filed a motion to

suppress the video of the custodial integration. He did file one regarding

suppression of the audio but never properly requested or received a hearing. See

Clerk's Record P.11-12. Had counsel done so and alleged it violated the requirements

the court set forth in Nguyen v. State, Supra at 767. As further set-out in ground

of error 13 subsection 21 on pages' 39¥40 of this memorandum, it would have been

granted, if not it would have been an abuse of discretion. Id. at 767. The video was

4 videos made into one, selectively redacting exculpatory portions and including the

inculpatory .portions. The final video is undeniable a video that has been tampered

with altered and commingled with 3 other videos, hopelessly destroying the ability

for it to be authenticated, and its ability to be legally admitted as evidence. §gbg

v. State, supra at 735. Additionally had counsel discovered and admitted as evidence

that Brazos Co.$heriff‘s Dept. did not have an evidence .control system from time of

arrest until trial. See attached Ex. K. The chain of custody could not have been

established. See wortham v. State, 903 S.w.2d 897,900 (Tex.App.-Beaumont 1995)("0nly

upon a showing that an exhibit was tampered with or altered will a chain of custody

44

question effect admissibility."). This evidence would have proven this video was

hopelessly inadmissible. The nwtion would have been granted if not it would have

been an abuse4 of discretion. Id. at 900. for ' sure the issue would have been

preserved for appellate review. The results of the proceedings would have been

different without this evidence. Kimmelman v. Morrison, supra at 2583.

Counsel failed to file an adequate motion to suppress the illegal arrest and

subsequent search and confiscation of the gun and jacket. Additionally counsel

failed to request a pre-trial hearing on the motion to suppress. Counsel waited

until after the jury was impaneled and even then did not request a separate

hearing. Vol,3 P.167 L.18-20. At the point in time when counsel finally urged his

motion was after the state rested its case. Vol.4 P.100 L.17-18.1 All the evidence

that counsel sought to suppress he had already allowed the state tot present it

without a single objection. See Griffin v. State, 850 S.w.2d 2461249

(Tex.App.-Houston [1st Dist.] 1993)("Defense coundfl mg§t object gygry time

allegedly inadmissible evidence is offered. Hudson v. State, 675 S.w.2d 507,511

(Tex.Cirm.App.1984); See also 1 Brasfield v. State, 600 S.w.2d 288,296

(Tex.Cr.App.1980)." Because no objections were made when the complained of evidence

was admitted, there is "nothing preserved" for appellate review; Hudson, 675 at 511.

Once the motion was denied counsel failed to file a motion requesting findings of

facts and conclusions of law. which would have allowed the appeals courts to

adequately rule on the real reason(s) the trial court denied the motion. §Lgtg

.0ages, supra at 644; State v. Cullen, supra at 698.

Counsel failed to properly present his motion to suppress the gun and

jacket. Counsel should have set out the mandatory requirements of the Vehicle

Inventory Report policy and how the mandatory requirements were not followed: This

inventory policy was entered. Vol.6 Ex.16. This policy specifically requires and

mandates: 1

II. POLICY1 This inventory procedure __y_ not be used as a pre text to conduct

ag_exploratory search for incriminating evidence...Vehicle inventories SHALL

be conducted in accordance with the procedures outlined in this directive.

P. 2B. VEHICLE INVENTORY REPORT

3. LLL items of value SHALL be recorded on the Vehicle Inventory Report.

4. In most cases, the property should be left inside the impounded

vehicle. If, however, the vehicle cannot be reasonably secured or the property

is of such value that the officer does not believe it would be safe to leave

it in the vehicle, the property SHALL be logged into the Property/Evidence

unit for safekeeping. Any property removed from the vehicle SHALL be noted on _

the Vehicle Inventory nggrt, indicating_ where it was stored...6. The

`signature of the owner or driver gf_th inventoried vehicle should be obtained

on the Vehicle Inventory Report, when practicable. The signature of the driver

of the wrecker towing the vehicle, shall be obtained.

45

Police officers have no discretion in following inventory search procedural

policy. See Colorado v. Bertine, 107 S.Ct. 738,743 (1987):

"The underlying rational for allowing an inventory exception to the Fourth

determine the scope of the inventory search. See §outh Dokota v, Opperman, 428

U. S. 364, 282, 96 S. Ct. 3092, 3103- 3104, 49 L. Ed. 2d 1000 (1976)(P0wELL

J. Concurring). This absence gil discretion ensures that inventory searches

will ng___t_ be used as a purposeful and general means of discovering evidence of

§;im7e42 Our decisions have always adhered to the requirements that inventories

be conducted according to standardized criteria. See Lafayetta ,462 U. S. at

648, 103 S.Ct. 2610; Opperman, 428 ll.$. at 374-375, 96 S.Ct. _at 3099-3100.“

Therefore, the Supreme Court has set the legal guidelines: If the standard

procedure policy is not followed then the inventory search is illegal. because it

becomes nothing more than a purposeful and general means of discovering evidence of

a crime, §_qlorado v. Bertine, Supra_ at 743.

First the policy mandates that all items of value S|IALL be recorded on the

Vehicle Inventory Report. Now we must determine the base line of the value of the

property officer'Ficke considers valuable enough that it must be listed on the

report. This inventory list is in the record. Vol.6 Ex.l$. lt list 3 pair of

sunglasses ($1.00 each) 2 small flashlights ($3.00 dollars each),-3 Blue water

bottles that were empty which are free, but even full they are about $5.00

each. Therefore, any item of value of $1.00 or more is considered of value. we know

the pistol and black leather jacket is worth way more than $1.00. Neither was

listed, as such this is the first instance in which the mandatory requirement of the

policy was not followed. ‘

Next the policy mandates (P.2 sec.4). Any property removed from the vehicle

$HALL be noted on the Vehicle'Inventory Report. The gun and jacket were not listed

'on the report nor where they were stored. The_refore,!-,this is the second and third

instances in which the mandatory policy was not followed. ,These three instances of

failure to follow the mandatory policy exhibits and demonstrates bad faith. To

further verify bad faith the state capitalized on the lack ;of' following the

mandatory requirements of policy by making a major issue out of not knowing where

-_ the jacket was found. Vol.4 P.60 L.20-23. By stating it was not found in Monishia'.

'1.1.'1'duffel` bag. Yet as Monishia testified it was in her duffel bag. Had the jury

131-believed the jacket was i_n her duffel bag there is a reasonable probability the

H'outcome_would have been different.` As such the record verifies that this was a

strategic decision. A clear act of B_A_D_ FAITH. '

Next remember that the policy includes mandatory language therefore, it_

` 46

mandates compliance....'Vehicle inventories SHALL be conducted in accordance with the

procedures outlined in this directive. Applicant has thus established that three

mandatory requirements that' were not adhered to. Next requirement, the signature of

the owner _g§ driver of the inventoried vehicle should be obtained, when practicable.

Officer Ficke was the officer that prepared the report and the arresting

officer. 0nce the report was completed with the tow truck driver_'s signature.

The officer along with his report got into the front seat with applicant in the

backseat. Applicant was taken to the county jail unhandcuffed and booked in. At any

point applicant could have reviewed this document and placed his signature on it. So

its obvious that it was highly practicable to obtain his signature.1At any point

officer Ficke could have handed applicant the report and applicant signed it. This

lack of compliance denied applicant the chance to insure the inventory was

complete. This lack of compliance undercut two of the three major reasons to conduct

the inventory search in the first place. See Lagaite v. State, 995 S.w.2d 860,865

(Tex.App.-Houston [lst Dist.] 1999, pet. ref'd). Inventories serve to protect (1)

the owner‘s property while in custody, (2) the police against claims or disputes

over lost or stole property. Had this procedure been followed applicant would have

noticed his $75.49 dollar camouflage jacket was not even listed or where the black

jacket and gun were stored. This bad faith lack of compliance, is the key reason the

state was allowed to present false evidence at trial; There was only two jackets in

the truck one Ms. Campbell was wearing and the black leather jacket, and applicant

was wearing only a tank top and it was the middle of winter so that _was his jacket

with the gun in it. Also where it was stored. Vol.4 P<43 L.9.

Also trial counsel argued during the motion _to suppress that the County allows

drivers that are going to be arrested to call someone else to come get the vehicle

so they will not have to search and tow it off. See Vol.4 P.63 L.'18-25 P.64

L.1. Counsel could have called applicant's father and he would have testified that

just 83 _days latter applicant called him after he was arrested and he came and got

the truck instead of them searching it and towing it in. See Ex. L attached. 1

Additionally is the fourth instance the mandatory procedural requirements in

the policy were not complied with. which counsel failed to alleged or argue in the

suppression hearing. Ex 16 P. 2: c. olscovl-:RY or Evlo£uc£.

"1. If, in the course of a vehicle inventory, the officer discovers an item

that constitutes contraband or evidence connected to the commission of a

criminal offense, the officer SHALL seize the evidence and process _in

according g g established procedures o_f this Department." '

This once again mandates that the gun and jacket are mandatorily required to be

47

listed on this Vehicle Inventory Report. Counsel then could have presented the fact

that the Department had no evidence control system. Therefore, there was no way to

follow a non-existing procedure for processing evidence. This evidence would have

established the state failed to follow four mandatory requirements of their policy

and one requirement. Had counsel presented these in the motion to suppress it would

have been granted and without this evidence there would have been no trial. As such

the out come would have been different without this evidence. Kimmelman-Yv. Morrison,

supra at 2583. '

Additionally _at the hearing counsel failed to issue a subpoena for officer

Ficke because he is actually the officer that prepared the inventory

.' report. 1Applicant had a constitutional right to cross-examine him. Meledez, supra at

328. Also counsel should have insisted that the confidential informant be present

because _he was the sole person that identified applicant before he was arrested at

gun point. Applicant had a right to test his description, even if it would have had

to be in camera. See Bodin v. State, supra at 318. Counsel failed to cite one single

case law to support his motion. 1 `

For sure had 'the motion been presented as 'now outlined it would have been

properly preserved for appellate review. Thereafter there is a reasonable

probability the results of the direct appeal would have been different._

1 1GROUND OF ERROR NO. 17: PROSECUTOR DENIED APPLICANT HIS DlJE PROCESS RIGHT TO

THE DISCOVERY AND DISCLOSURE 0F EXCULPATORY EVIDENCE.

STANDARD OF' REVIEW: "PYLES V. JOHNSON, SUPRA AT 998. THE PROSECUTIONS SUPPRESSION OF

EVIDENCE FAVORABLE TO THE ACCUSED VIOLATES THE DUE PROCESS CLAUSE IF THE

EVIDENCE IS MATERIAL EITHER TO GUILT OR THE PUNISHMENT. KOPYCINSKI V. SCOTT,

64 F. 3D 223, 225 (5TH CIR.1995) (CITING BRADY V. MARYLAND, 373 U. S. 83, 87, 83

S. Ct. 1174,1197, 10 L. ED. 2D 215 (1963)). THIS INCLUDES EVIDENCE THAT MAY BE

USED T0 IMPEACH A WITNESS'S CREDIBILITY. SEE ID. (CITING UNITED STATES

V. BAGLEY, 473 U.S. 667, 676, 105 S.CT.3375,3380, 87 L.ED.ZD 481

(1985))."[E]VIDENCE IS MATERIAL ONLY IF THERE IS A REASONABLE PROBABILITY

THAT, HAD THE EVIDENCE BEEN DISCLOSED TO THE DEFENSE, THE RESULTS OF THE

PROCEEDINGS WOULD HAVE BEEN DIFFERENT." BAGLEY, 473 U. S. AT 682, 105 S. CT. at

3383- 84; SEE ALSO KOPYCINSKI, 64 F. 3D AT 235- 36: IF THE PROSECUTION WITHHOLDS

EVIDENCE THAT Sl-\TISFIES THE ABOVE DEFIN_ITION OF MATERIALITY, THEN HARMLESS

ERROR ANALYSIS IS IN APPOSITE AND HABEAS RELIEF IS NARRANTED. SEE _K__YLES

V. WHITLEY, 514 U. S. 419, 435, 115 S.CT. 1555,1556, 131 L. ED. 20 490 (1995)_ "

The state's witness testified that he was notified by phone by a confidential

informant that applicant was in a certain location driving a certain vehicle and had

a pending'arrest warrant. That he confirmed the arrest warrant by contacting

dispat'ch._ This was the only reason they were legally allowed to forcefully stop and

l arrest applicant at gun point,`1was to execute this arrest warrant. Vol.4 P.16

L.5-8. Therefore, the authority is based upon the confirmation by the dispatcher

that is listed on the dispatch log. Applicant contends that it was not until after

applicant was arrested at gun point that dispatch confirmed the arrest

warrant. Therefore, this dispatch log is exculpatory evidence. This dispatch log can

prove the stop, arrest and inventory search of the vehicle and confiscation_of the

gun were all illegal products of the fourth amendment violation. This dispatch log

could have also been used to impeach the credibility of each of the state's

witnesses. Bagley, supra at 3380. Whether this dispatch log is exculpatory evidence

can easily be determined. Simply compare the video of the stop which has a digital

time displayed on it, to the time on the dispatch logs dated 2-16-12 between the

hours 1PM-4PM each communication is listed word for word with both the time and

date. Applicant's father has tried to obtain this through freedom of information act

with "no response." See attached Ex. M. This dispatch log will verify that all the

state's witnesses testified falsely, as such this log` could have been used to

impeach the credibility of all but one of the state's witnesses.v This satisfies the

materiality requirement. Id at 3380. This establishes the materiality of this

evidence. P les v.1Johnson, supra at 998. Furthermore, the results of the

proceedings would have been different had these logs been d~isclosed. Ba le , supra

at 3380. _ ’ '

vNext is the fact that the prosecutor did not disclose the fact that the Brazos

Co. Sheriff's Dept. did not have a evidence control system covering the time from

arrest until trial. This evidence could have been used to establish the video was

inadmissible as evidence “no chain of custody. Cuba v. State, Supra at 7315‘. Also it

could have been used to discredit the admissibility of the gun and jacket. Also to

further establish the mandatory policy was not followed thereby establishing

additional incidents of BAD FAITH. This would establish that the inventory search

was nothing more than a search for criminal evidence. Because the inventory search

was illegal. See Colorado v. Bertine, supra at 742-743. As such the gun and jacket

would have been ruled inadmissible. No gun no trial. This unambiguously establishes

the materiality of this evidence. Pyles v. Johnson, supra at 998.

Additionally the state withheld the audio recording that the investigating

prosecutor made of "hls" interview with Ms. Campbell. This recording could have been

used to establish that the prosecutor illegally used it to impeach her testimony at

trial during cross-examination. This will establish the prosecutor committed the

criminal act of witness tampering. Tex.P.C.§36.051. Applicant was entitled to have

the use of this evidence 20 days before trial. Tex.C.C.Proc. Rules 38.22(3)1(a)(5),

49

and 39.14. This undiscovered and undisclosed evidence has been used to discredit the

only defense. The recording could have been used to rehabilitate the credibility of

applicant's only witness. Had this witnesses' testimony been believed applicant

would have been found not guilty. For these reasons this writ should be granted and

a new trial ordered. 1 1

PRA¥ER v

Applicant prays that this Honorable Court will hold all proceedings deal with

this 11.07 in abeyance until applicant's request to transcribe the missing regaining

portions of the mandatory Court Reporter's records are transcribed and supply to

applicant at a reasonable cost. Then allow applicant to supplement his

11.07. Applicant also prays that an evidentary hearing will be ordered at which time

applicant will be allowed to fully develop the record regarding the factual basses

4 of each of his claims. That applicant's writ in all things be granted thereby

' ordering a new trial. lt is so prayed.

I, Dave Greer TDCJ-ID# 1829754, presently incarcerated in the Texas Department

of Criminal Justice Institutional Division at the wayne Scott Unit, in Brazoria

County, Texas declare under the penalty of perjury that the facts in this memorandum

of law are true and correct to the best of my belief.

. My date of birth is )l'¢la»*r ..

ExF_cuTEr) on this 3& day of ,§g mg , `2015.'

Under both Federal Law (28 U.S.C. §1746) and state law (V,A.C.Civ. Prac. &

Rem. code §132.002-132.003) ~

Respectfully submitted,

'Dave Greer #1829754

wayne Scott Unit '

6999 Retrieve Rd.

Angleton, Texas 77515

CERTIFICATE 0F1SERVICE

I, hereby certify that a true and correct copy of this memorandum has been sent

to the criminal District Attorney addressed to: Mr. Jarvis Parsons, 300 E. 26

Street, Suite 310, Bryan, Texas 77803, by placing a true and correct copy in the

U. S. Mail postage paid on this 357/ul day of §¥\H`{Z , 2015.

probate

ve Greer

APPLICANT'S EXHIBIT LIST

EX. A. AFFIDAVIT OF MS. GROSS VERIFYING THE EX PARTE COMMUTATIONS BETWEEN THE

JUDGE, PROSECUTOR AND DELIBERATING JURY ON 11-14-12.

_ EX. B-1. LETTERS T0 APPLICANT' $ TRIAL ATTORNEY SEEKING TO REVIEW THE 'VIDEO

BEFORE TRAIL 50 HE CAN; DECIDE TO 1TAKE THE STATE'S PLEA OFFERS. FIRST 1ONE ON

5-23-12.'

Ex. 3-2 """""". ou 8-4-12

Ex. B-3 """""". ou 8-26-12 4

Ex. 5-4. """""". ou 9-16-12 PAGE 1.

Ex. B-4-A. """""". PAGE 2.

Ex. B-s. """""""". on 9~30-12

EX. C¥1. COPY OF LETTER FROM OPEN CUSTODIAN AT BRAZOS CO. SHERIFF'S DEPARTMENT.

EX. C-2. """ COPY OF JAIL VISITATION LOG, PAGE 7.

EX. 0-3. """ COPY OF VISITATION LOG. PAGE 5.

EX. D-1. WARNING BY MAGISTRATE ON 5-19-12.

EX. D- 2. wARNING BY MAGISTRATE ON 5-15-12.

EXs E. A COPY OF NOTE TO TRIAL ATTORNEY DURING TRIAL IN EFFORTS TO HAVE HIM MAKE

AN OBJECTION.

EX F. FREEDOM OF INFORMATION.REQUEST FOR COPY OF THE GRIEVANCE THAT WAS FILED

AGAINST JAILER LAKETH MCK1NNEY.

EX. G. BRAZOS COUNTY-SHERIFF'S OFFICE CUSTODIAN 0F RECORDS RESPONSE.

EX.| .DISTRICT CLERK' S RESPONSE W/LAKETH MCKINNEY' S ACTIVE CAUSE NO.'S.

EX. I- 1. BRYAN EAGLE NEW PAPER CLIPPING.

EX. J. LETTER TO APPELLATE ATTORNEY ASKING HER1BRING 1UP SPECIFIC ISSUES ON

MOTION FOR NEw TRIAL. _

EX. K. LETTER FROM ATTORNEY RICHARD WETZEL'TO THOMAS BLANCHARD, INFORMING HIM

wHAT GROUNDS OF ERROR TO FILE ON 11. 07. ON THE BACK IS l\ LETTER TO APPLICANT

INFORMING HIM ABOUT THE OPEN INVESTIGATION ON BRAZOS COUNTY SHERIFF DEPARTMENT' S

LACK 0F EVIDENCE CONTROL SYSTEM.

EX. L1AFFIDAVIT FORM KENNETH GREER.

'EX. M-l. FREEDOM INFORMATION REOUEST FOR DISPATCH LOGS.

EX. M-2. CERTIFIED MAIL RECEIPTS'FOR FREEDOM OF INFORMATION REQUESTS.

EX. N. FREEDOM OF INFORMATION REQUEST FOR AUDIO RECORDING OF MONISHIA ON

11-13-12.

.............

untitled

6/25/2015 __

Kimberly Gross

5177 Julie Circle

Bryan, Texas 77807

AFFIDAVIT

I'm over 18 years old, and I base this statement on my personal knowledge:

!. The D.A. set up the video projection with his personal lap tQD and he was the 1

only person with control of it.

2. During jury deliberation everyone was removed from the courtroom so the1jury

could watch the DVD and the D.A. stayed to operate his computer.

_ 3. Mr. Greer was in:a holding cell in the back of the courtroom.

4. The Attorney (Mr. Gray) was not present in the courtroom.

Sincerely;

Kimberly Gross

§~¥__§;€<, Joe Roy Bewley'

- is , ,

§,,,,§1+"$-' Commission Expires .JL < 3‘° ‘5._

<‘ 04-17-2016

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' EX. B-4A

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EX. B-5

(

BRAZOS COUNTY OFFICE oF THE SHERIFF

CHRISTOPHER C. KIRK

W. JAMEs STEWART, CHIEF DEPu'rY 1700 WEST STATE HIGHWAY 2 1

WAYNE DicKY, JAIL ADMlle'rRA'roR BRYAN, TExAs 77803- 1300

Kenneth Greer

5177 Julie Circle

Bryan, Texas 77 807

Mr. Greer,

I received your Open Records Request for the attorney visits~onl David D. Greer between-the

dates of 10/29/2012 and 12/07/2012. We did not list the attorneys separate in the computer at

that time. I am enclosing a list of visits with all of the other visits and personal information

redacted that was prepared by our County Attorney.

Hope you find this helpful,

Sgt. Pechacek

Custodian of Records

Brazos County Sheriff’s Ot’f`loe

0FF10E(979) 3614901 ADMlNIs'rRATIoN (979) 361-4992 -' FAx(979)361-4999~-

l Ex¢ c-l

QFI¢ER ,

WARNING BY MAGISTRATE

§

§ wARNING #:42713§ é. '

' THIS IS TO C§RTIFY THAT I, RO§E JONES ' IN THE CAPACITY OF MAGISTRATE DlD,_(GB§l& d

arn/pm AT BCDC ADMINISTER THE WARNINGS REQUIRED BY ARTICLE 15. 17 OF THE §XAS CODE

- OF CRIMINAL PROCEDURE 'l`_Q:

STATE oF TEX'AS §

COUNTY OF BRAZOS

NAME: D`AVID.DUANE.GREER 4 " t PID’No;: 26619800

Auulutbb: all/winn L,n<, m<!AN, 1)& I/zsu/ u’GB\AL,L): lz/AL/oo

PHoNE- 979 595- 3511 ' '- D L/I D No- TX-08609286

WHO APPEARED BEFORE ME IN BRAZOS COUNTY, TEXAS. SPECIFICALLY, I I`NFORMED THIS PERSON AS

FOLLOWS:

' THE ‘ACCUSATION AND '

` ` ' ' BURLESON co/WRNT/THEFT _GF PRoP ' vi ' W . h 42713§

‘ ' _ 4 $1500<$20000/rTY _

2. 7 m THE RIGHT To AN EXAMINING TRIAL,

3_ You HAVE THE RIGHT _To REMAIN sILENT AND MAKE No sTArEMENT Ar ALL ANY sTA_TEMENT YOU MAKE MAY BE USED

As EviDENcE AGArNsT You AT YOUR TRlAL

.4. ir You cHoosE To MAKE A sTATEMENT, You MAY TERMINATE THE rNTERVIEw AT ANY TIME;

5. YQU HAVE THE RIGHT To HAVE A LAWYER PRESENT To ADv`IsE You PRIOR ro AND DURrNG ANY QuEsTloNING oR

.INTERVIEW wer PEACE 0FF1cERs on ATTORNEY/s REPRESENTING THE sTATE,

6. _ IF Y9u ARE UNABLE To EMPLO_Y A LAWYER, You HAVE THE RIGHT To HAVE A LAWYER _APPOINTED To coUNsEL wITH h

You PRIOR To AND DURING ANY_ sUcH Qx)ias_rlor\rrN<;v oR rNTEerEw-, ""

7. ' 11= You WIs_H To REQUEST A cOURT-APPOINTED ATTORNEY "

. YOU MUS'I` COMPLETE A WRITTEN APPLICATION UNDER OATH FOR A COURT- APPOINTED ATTORNEY;

`b. THE APPLICATION MUST CONTAIN SUFFICIENT _FINANClAL INFORMATION TO ENABLE A J'UDGE TO DETERMINE lF YOU

ARE INDlGENT; _ -

c. REASONABLE ASSISTANC§ WII.,L BE PROVIDED TO COMPLETE THE APPLICATION, lF NEEDED;

8 A REQUEST l-`OR A COURT-APPOINTED ATTORNEY WILL B§ DETERMINED WITHIN THREE (3) WORKI`NG DAYS AFTER THE

' ` REQUEST lS RECEIVED IF YOU REMAIN IN JAIL AND DO NOT BOND OUT OF JAIL; l

9v v IF YOU ARE FOUND TO BE INDlGENT AND AN ATTORNEY IS APPOIN'I`ED, THE ATTORNEY WILL AT"IEMPT TO CONTACT YOU

BY THE END OF THE NEXT WORKlNG DAY AF-TER BEl"NGv APPOINTED.

THE ACCUsED _DOES _DO"ES NOT WANT TO REQUEST A coURr-APPOINTED ATTORNEY.,

10. THE COURT Fl'ND_S THAT PROBABLE CAUS§___ ' DOES __ DOES NOT EXIST lN THIS MAT'I`ER.' v

l l. lF YOU ARE NO'I` A U S CITIZEN, DO YOU WANT YOUR CONSULATE TO BE vNO'l`IFIED? ____NO, l YES.

` cOUNTRY? '

WITNESSES_<§__M/ 575 . n v _ _.' »

DEFENDANT; X v `. ° " l "/Z‘%z¢&(.ygx@‘ @/

Distribution: _Coun; ___Defe_ndant, ' _Magistrate, ___Jajl l 7 ` .IUSTICE OF THE PEACE, PRECINCTA

Form #-5015 Waming by Magistrate . ' 4 -. - ~ Ex~. . D_l

» STATE OF TEXAS §§ EG l §§ § WARNING BY MACISTRATE

COUNTY OF BRAZQS v 7 ' " WARNING #: 426596`

m AT BCDC ADMINISTER THE WARNINGS REQUI7R§D BY ARTICL§ 15. 17 OF_ THE TEXAS CODE

THIS IS TO C W~Y THAT l, ROSE JONES IN THE CAPACITY OF MAGISTRAT§ DID, ON 05/15/12,

. 7 77

OF CRIMINA 'O_CEDURE TO:

NAME: DAVID DUANE GRE_ER ' » - PID NO.: 266'19800

ADDRESS: 5177 JULIE CIR, BRYAN, TX 777807 ' d DOB(AGE):12/22/66

PHONE: 979- 595- 3511 D L/I D'NO: TX~ 08609286

WHO APPEARED BEFORE ME lN BRAZOS COUNTY, TEXAS. SPECIFICALLY! I INFORMED THIS PERSON AS

FOLLOWS:

l. TH§ ACCUSATION AND ANY AFFIDAVIT CHARG§S YOU WITH THE OFF§NS§(S) OF: ` \' 1

UNL PO§S FIREARM BY F§LON

"?H-02434-F

' sso"ooo 00 " sc y 4t6596

oNSITE JP22/0P1-;R UNREG MoToR vEH1cLE seoo.oo ~ ' JPs 426599

03329636 - PAROLE v10LAT10N/BL/wRNT/rTY so.oo NB 426623

2. lF YOU ARE CHARG-§D WITH ANY F§LONY OFF§NS§, YOU HAV§ THE RIGHT 'I`O AN §XAMINING TRIAL;

YOU HAVE THE RIGHT TO REMAIN SILENT AND MAK§ NO STATEM§NT AT A_LL. ANY STAT§M§NT YOU MAKE MAY B§ USED

AS EVIDENCE AGAINST Y_OU AT YOUR TR.[AL; .

4. ' lF YOU CHOOS§ TO MAK§ A STATEM`ENT, YOU MAY T§R_MINATE THE INT§RVI§W A'I` ANY TIM§;

5. YOU HAV§ THE RIGHT 'I_`O HAV§ A LAWY§R PRESENT TO ADVlSE YOU PRIOR 'l`O AND DURING ANY QU§STIONING OR

INT§RVI§W WI'I`H P§AC§ OFFlC§RS OR ATTORN§Y§ R§PR§S§NTING THE STATE;

6. IF YOU AR§ UNABLE TO §MPLOY A LAWY§R, YOU HAV§ TH§ RlGHT TO HAV§ A LAWY§R APPOINT§D TO COUNSEL WITH

YOU PRIOR TO AND DURING ANY SUCH QU§STIONING OR lNT§RVI§W;

7. ' IF YOU WISH TO R§QUEST A COURT- APPOINTED A'I'I`ORN§Y: l

a. YOU MUST COMPLETE A WRI'I`T§N APPLICATlON UND§R OATH FOR A COURT- APP701'NTED ATTORN§Y;

b. THE APPLICATION MUST CONTAI'N §UFFlCI§NT FINANCl/-\L INF ORMA'I`!ON 'I`O §NABLE A JUDG§ TO DETERMINE IF YOU

7 ARE rNDlGENT ~ .. . .

c. REASONABLE Ass1sTANc`E wILL B`E PROVIDED To coMFLETE THE APPLICATION, IF NEEDED,

8 A REQUEST FOR A couRT-APPOINTED ATTORNEY WILL BE DETERMrNED wITHrN THREE (3) woR1<1NG DAYS AFTER THE

' REQUEST_ 1_s RECEIVED IF YOU REMAIN IN JAIL AND D`o NOT BOND our 01= JA1L,

9 IF YOU ARE FOUND 10 1315 1ND1GENT AND AN ArroRNEY 1s APPoiNTED THE ATTORNEY WILL ATTEMPT To coNTAcT YOU

BY 'l`l-l§ END OF THE N§XT 77WORKING DAY AFTER BEI`NG Al>POINT§D_

THE ACCUS§D _7DOES _DO§S NOT WANT TO REQU§ST A COURT-APPOINT§D ATTORN§Y. l

10 THE couRT FrNDs THAT PROBABLI-; cAUsE _DOES_ DoEs NOT Ex1sT rN THls MATTER.

1 1. IF YOU ARE NOT A u _s clTIzEN, 130 YOU wANT YooR coNsULA'Tl-: To BE N0r11=1131j? '___No, __ YES. '

COUNTRY? . ,

wITNEss / 7 ' , l

Distribntion: __ Court, _Defendant, __Magistrate, _Jail _ 7 7 JUSTICE OF TH§ P§ACE, PR.§CINC'I` 4

m - 7

-Form # 5015 Waming by Magis`txate 7 j _ Ex . 0_2 77..

` g . _ " . ,

.. . . _ ,

C`

._`

\_

1 /f[/U_#/ /@U/é_§_/"fc//~\ //,/»1_,'7

.'I

Me'.`:?.*.}£./.§....

To: Records Asoess O_ffiser v l

Minimn Sesur.'ity Jail (MSJ)

577muemwm- ~ . 1» 7.

Bryan, Texas 77807 '7 ' 77 7 7 7 7 7 77 ,_

1 Re: Freedom `075 Onfor'rmtion law Reqnest

Records Aocess Officer

Under the provision 05 the Texas E`reedom of 7ln50rnuati7.0n Law, Gsvemmat

cede Ann. § 552 000, 1 request the following= ' 4 ~ ’f

1 Step 1 grievance forms 511-ed by Stev_e Austin against I..aheth M<:.Kmney

51201171 20172 where David D. Greer was a witness. 1

2. Step 2 grievance forms filed by Steve Austin against Laketh MvKirmey

form 201231111ere David D. Greer was a witness. ~ ~

As you know the Freedom 05 information Law requires thalj'.an agency respond

within five business dive of seseip`t of a request, therefow¢ l wonld appreciate

a res'pond`e as soon as possible and look 50rwa1:d to hearing from von soon 15

501-t any reason any portion o_f my reqnest is denied, please inform me in writing

05 the reesskf0r denial and provide me the name and address 05 the person to

whom an appeal srgid be directed.

Sincefely,

oMM:i-oi¢¢ooceo¢¢o

Kenneth Greer

51'??’;'¢10111=.\C»):;»l ‘ * "

Bryan, Texas 77807

EX. F

BRAZOS COUNTY OFFICE 0F THE SHERIFF

CHRISTOPHER C. KIRK

_W. JAMES S'rEwAR'r, Cx-nEF DEPUrY 1700 WEs'r STATE HIGHWAY 2 1

WAYNE DICKY, JAIL ADMINIs'rRA'roR BR\'AN, TEXAS 77803- l 300

Kenneth Wayne Greer

5177 Julie Circle

Bryan, Texas 77807

__ .93/9?{?015 _.

Dear Mr. Greer,

l have received your request for records concerning grievances tiled by Steve Austin against Laketh

McKinney. I have been advised by Assistant Disu‘ict.Attorney John Briek that I cannot release these

records due to the criminal case filed against Laketh McKinney' still pending

Sincerely,

452 QMZMA

Sgt C. Pechacek

_ Custodian of Records

Brazos County Sheriff's Oflice

oFFICE (979)3614900 * A_DMINISTRATIQN (979)-361.4992 § FAx(s'/Q) 361-4999

EX. G

' Brazos County

Kenneth Greer -

Bryan,Texa'-`s"""77'8l)"7 ‘

Regarding: -`Ca"u'se'-'Number 01-345,8;&:.-1-3-.+037,04

This text is long and has been trimmed here. Open the source document for the complete record.