# Greer, David AKA David Duane Greer > Court of Appeals of Texas · November 3, 2015 URL: https://www.frixlaw.com/law-library/cases/4071379 ## Case - **Court:** Court of Appeals of Texas - **Decided:** November 3, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4071379 ## Opinion text 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,©lesiy_ 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. 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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,nPOINT§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. 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To: Record Access foicer - Brazos County .Sieriff's Department 1700 Hwy. 21 West Bryan, Texas 778_07 From: Kenneth Greer 5177 Julie Cr. - Bryan, Texas 77807 (979)823-’3200 1 Re: Freedom 'of Information law Request Records Access 0fficer: Under the provision of the Texas Freedom of Infometion law, Government ®de` §i'in.-- § 552 001, l request the1.51£ollowing information' ` ` ' 1. Unredacted video from the patrol vehicle that recorded the incident from 2/16/12. ' 2. Trnascript of the video from the patrol vehicle that recorded the incident from 2/16/12. ' 3. Recording from the Brazos Ccmxty Sheriff's dispatcher from the incident of _2/16/12. 4. 'l`ranscript of the Brazos County Sheriff°s dispatcher from the incident of 2/16/12. ' As you know, the I"reedom of Information law requires that an agency respond to a request within five business days of receipt of a_ request, therefore, l ' " "_ appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reason for denial and provide the name abd address to whom ` an appeal should be directed, in writing. " ' 'S~inc_ere,-ly ,_ l I% ....C.Ql.°...‘......\.. Kenneth Greer . 5177 .Julie Cr. ,- Bryan, Texas'7780`/.i . Cerfi‘i"r_€d F€e Retum Fleceipt Fes (Endqr_sement Required) Resuictsd Delive!y Fee (Enao_rsamem He_quired) mar Post_age & Fe€S >/,\ §3. '?":3 " oza`\:»"m¢ Ssnl '{0 ` -Is'l:ee: & Apr, No., ar PO Box No. `?uiu aavu unum uiuv idea (Bxdnrsemen! Required) Recmcwd Delive:y Fae' To\al Pcsta_ge & Fees ` oz)bi/;~*€')`i§ Ssm'fo §masaAprEka or PO B_ox No. 7umu aa?n omni umu? 731? _gx. n-z '?[lll§ EB?[] DIJUL L}LL|'¢' ?355~ Retum Recelpt Fee (E_n_c_iorsement Required) asserted emery see (ermmem_ ngqueed) man Pose.ge a -Feas $ erroz/jraid,_,,. 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