Petition for Writ of Certiorari — Comfort Delando Roberts, Petitioner v. Texas

No

IN THE

SUPREME COURT OF T• UN4 E

COMFORT D.ROBERTS -PRO SE

RE-TITIONPR

FILED

(Your Name)

DEC 1 3 2019

VS.

THE STATE OF TEXAS

OFFICE OF THE CLERK

SUPREME COURT, U.S.

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

4TH COURT OF APPEAL - SAN ANTONIO, TEXAS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

COMFORT D. ROBERTS, PRO SE

(Your Name)

2720 GAINS MILL DRIVE

(Address)

FORT WORTH, TEXAS 76123

(City, State, Zip Code)

817-357-9836

(Phone Number)

QUESTION(S) PRESENTED

THE "TOTALITY OF REPRESENTATION" SHOWS THE PERFORMANCE OF,COUNSEL, RONALD

D. ZIMMERMAN WAS OBJECTIVELY DEFICIENT AND THEREBY DENIED APPELLANT HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

THE "TOTALITY OF REPRESENTATION" SHOWS THE PERFORMANCE OF,COUNSEL, RONALD

D. ZIMMERMAN WAS OBJECTIVELY DEFICIENT AND THEREBY DENIED APPELLANT HIS FIFTH

AMENDMENT RIGHT TO DUE PROCESS OF LAW.

THE "TOTALITY OF REPRESENTATION" SHOWS THE PERFORMANCE OF,COUNSEL, RONALD

D. ZIMMERMAN WAS OBJECTIVELY DEFICIENT AND THEREBY DENIED APPELLANT HIS SIXTH

AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY.

4.THE "TOTALITY OF REPRESENTATION" SHOWS THE PERFORMANCE OF,COUNSEL, RONALD

D. ZIMMERMAN WAS OBJECTIVELY DEFICIENT AND THEREBY DENIED APPELLANT HIS SIXTH

AMENDMENT RIGHT TO CONFRONT MY ACCUSER.

5.THE "TOTALITY OF REPRESENTATION" SHOWS THE PERFORMANCE OF,COUNSEL, RONALD

D. ZIMMERMAN WAS OBJECTIVELY DEFICIENT AND THEREBY DENIED APPELLANT HIS

UNIVERSAL DECLARATION OF HUMAN RIGHTS "UNDER ARTICLE 11, THE PRESUMPTION OF

INNOCCENSE".

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

Comfort Roberts vs The State of Texas, 4th Court of Appeals District - San Antonio, Texas

No.04-18-00345CR,PDR 0444-19, Judgment Entered 10/09/2019

Comfort Roberts vs The State of Texas, 186 Judicial District - San Antonio, Texas

No. 2016-CR11457, Judgment Entered 05/17/2018

LIST OF PARTIES

[X] All parties appear in the caption of the case on the cover page.

[ All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

Comfort Roberts vs The State of Texas, 4th Court of Appeals District - San Antonio, Texas

No.04-18-00345CR,PDR 0444-19, Judgment Entered 10/09/2019

Comfort Roberts vs The State of Texas, 186 Judicial District - San Antonio, Texas

No. 2016-CR11457, Judgment Entered 05/17/2018

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

5

STATEMENT OF THE CASE

If

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A PDR REFUSED BY TEXAS COURT OF CRIMINAL APPEALS 10/09/2019

APPENDIX B

4TH COURT OF APPEALS- SAN ANTONIO DISTRICT - MANDATE 11/12/2019

APPENDIX C 1

14) 2( A-r-fr

APPENDIX D

APPENDIX E

APPENDIX F

1

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TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)

11

Banks v. State, 819 S.W.2d 676, 679 (Tex. App.—San Antonio 1991, pet. ref d)

24

Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004)

24

Cole v. State, 839 S.W.2d 798, 811-812 (Tex.Crim.App. 1992) (op. on reh'g)

Crawford v. Washington, 541 U.S. 36 (2004)

15

16

Fischer v. State, 252 S.W.3d 375, 382 (Tex. Crim. App. 2008)

15

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

11

Harrington v. Richter, 131 S. Ct. 770, 792 (2001)

11, 19

Hawthorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992)

10, 18

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1984)

10

Lopez v. State, 315 S.W.3d 90, 96 (Tex. App.—Houston [1st Dist.] 2010)

10

Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010)

20

McKinney v. State, 76 S.W.3d 463, 470-471 (Tex. App.—Houston [1st Dist.]

2002, no pet.)

11

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 316, 321-22 (2009)

15

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)

10. 18

Moore v. State, 4 S.W.3d 269, 272 (Tex. App.—Houston [1st Dist.] 1999)

11

Ngo v. State, 175 S.W.3d 738, 743 n.7 (Tex. Crim. App. 2005)

24

Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006)

11

Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000)

10

Sanchez v. State, 209 S.W.3d 117, 120 (Tex. Crim. App. 2006)

24

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)

10, 18

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)

10

Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992)

11

STATUTES AND RULES

TEX. PENAL CODE § 12.35(a),(b) (West Supp. 2014)

TEX. PENAL CODE § 31.03(e)(4)(A) (West Supp. 2014)

TEX. PENAL CODE § 31.06(a)(2) (West 2017)

TEX. PENAL CODE 31.06(b)(1) (West 2017)

TEX. PENAL CODE 31.06(b)(2) (West 2017)

TEX. PENAL CODE 31.06(b)(3) (West 2017)

TEX. PENAL CODE § 31.06(f)(1) (West 2017)

TEX. PENAL CODE § 31.06(f)(3) (West 2017)

TEX. R. APP. 9.4(i)(2)(D) (West 2017)

TEX. R. APP. P. 38.1(a) (West 2017) ii

TEX. R. EVID. 803(8)(A)(ii) (West 2017)

OTHER

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Constitutional Amendment 6th

U.S. Constitutional Amendment 5th

Universal Declaration of Human Rights

STATEMENT OF THE CASE

Appellant was charged by indictment on December 13, 2016 with theft-[$1,500-$20,000],

check, alleged to have occurred on June 9, 2015. Appellant elected the Judge for sentencing if convicted

.A jury found defendant guilty as charged on March 28, 2018. Sentencing occurred on May17, 2018, at

which the trial court assessed: (1) a fifteen-hundred dollar [$1,500] fine; and (5) two [2] years in state jail

probated for a like period of community supervision;(3) six-thousand dollars [$6,000] of restitution; and (4)

180 days' county jail as a condition of probation. Appellant timely filed notice of appeal on May 23, 2018.

The Bexar County Public Defender's Office was appointed as appellate counsel on May 24, 2018.

Appellant Brief filed December 18, 2018 in the 4th Court of Appeals in San Antonio, Texas.

On August 28, 2019, PDR filed with the Criminal Court of Appeals (refused to hear).

REASONS FOR GRANTING THE PETITION

The 4th Court of Appeals decision to deny appellant's claims of ineffective assistance of trial counsel

raised on direct appeal directly conflicts with Texas Criminal Court of Appeals. See (Lopez v.State, 315 S.W.3d

90, 96 (Tex. App.—Houston[1st Dist.] 2010) (citing, Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim.

App.2000)). However, the conflict within The 4th Court of Appeals also creates conflict and contradiction of the

laws and precedents previously established by The United States Supreme Court. See (Strickland v. Washington,

466 U.S. 668, 687, 694(1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Hernandez v.State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1984). Which in turn gives rise to a federal question under the 6th

Amendments of the United States Constitution, requiring The United States Supreme Court to intervene in this

matter. A failure of The United States Supreme Court to intervene in this matter would send a clear message to

every other Court in the nation that they are above the law and not required to obey the rules established under

the U.S. Constitution and enforced by the highest Court in the Land.

Prejudice is proven if a mere "reasonable probability" exists that, but for counsel's deficient performance, the

result of the proceeding would have been different. (Hawthorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App.

1992).A reasonable probability is one sufficient to undermine confidence in the outcome of the case. Strickland,

446 U.S. at 694; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). However, a defendant need not

prove that counsel's actions "more likely than not" altered the outcome of the trial. Harrington v. Richter, 131 S.

Ct. 770, 792 (2001).

Deficient assistance exists whenever counsel's performance falls below an objective standard of

reasonableness as judged by prevailing professional norms. Moore v. State, 4 S.W.3d 269, 272 (Tex. App.—

Houston [1st Dist.] 1999). Any presumption that counsel did perform adequately may be overcome by a mere

preponderance of the evidence that is well-grounded in the record. Robertson v. State, 187 S.W.3d 475, 482-83

(Tex. Crim. App. 2006). The representation is viewed from counsel's perspective at the time of trial so as to avoid

the distorting effects of hindsight. Id. Ineffective assistance may arise from a single egregious error or may be

inferred from the "totality of the representation." Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App.

1992); McKinney v. State, 76 S.W.3d 463, 470-471 (Tex.App.—Houston [1st Dist.] 2002, no pet.).

If the totality of the representation shows that no competent attorney would have engaged in a particular course

of conduct, then counsel's performance may be ruled ineffective, as a matter of law, even if the record does not

list the subjective reasons that motivated counsel's actions or inactions. Goodspeed v. State, 187 S.W.3d 390,

392(Tex. Crim. App. 2005); see also Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (stating, "[If]

no reasonable trial strategy could justify trial counsel's conduct, counsel's performance falls below an objective

standard of reasonableness, as a matter of law, regardless of whether the record adequately reflects the trial

counsel's subjective reasons for acting as counsel did") (emphasis added).

B. Application of Law to Facts.

Here, trial counsel, Ronald D. Zimmerman [TBN: 24038203], committed at least three [3] acts or omissions that

either jointly or severally fell below an objective standard of reasonableness.

Counsel Failed to Properly Challenge the Transaction Video Admitted through Stephan Konecko,

Because, By His Own Admission, Counsel Suspected that Video had Either been Edited or was

Otherwise Incomplete.

Counsel voiced concerns at trial that the video admitted through Stephan Konecko had either been edited or was

incomplete, as the following record reflects:

[BY MS. BIGGS] Q: And is State's Exhibit Number 3 a true and accurate depiction of events as they

occurred that day on June 9th, 2015?

A: Yes, it is exact.

MS. BIGGS: Okay. At this time, Your Honor, I would offer State's Exhibit Number 3 into evidence.

MR. ZIMMERMAN: Objection, Your Honor. If I may approach?

THE COURT: Yes, sir.

THE COURT: We are at a bench conference out of the hearing of the jury. Go ahead.

MR. ZIMMERMAN: Your Honor, the State has tendered a copy of that and I have a question as to the

very beginning, whether it was edited or not. I'm a little concerned that if it was edited, then I would like to

have at least the entire video available to the Defense.

THE COURT: Denied. This should have been brought up pretrial. What we'll do is we'll let you crossexamine the witness about it later when you get to cross-examine. Objection is overruled.

The Court's ruling shows this is an important issue which: (1) "should have been brought up pretrial;" or

(2) at least have been made subject to vigorous adversarial testing during cross examination. The record reveals,

however, that defense counsel did neither. Demonstrating no pretrial motion was ever filed or heard regarding

edited or incomplete video. Also establishing counsel asked exactly no questions during cross examination

concerning whether Konecko was aware that his video was either edited or incomplete). Thus, the trial court's

own observations and ruling acknowledge the deficient nature of trial counsel's conduct.

Counsel Repeatedly Failed to Object to Testimonial Hearsay Gathered by Sandra Nagore in

Anticipation of Criminal Litigation.

(a) Law Enforcement Work Product.

Sandra Nagore, a former D.A. Check Section supervisor, identified the "DA's check section file on Comfort

Roberts" as State's Exhibit 5. The file included various documents generated in anticipation of criminal litigation

by personnel in her office. At trial, the State asked Nagore to read certain contents of the State's file, as the

following record reflects:

Q: Okay. Can you tell me what that final notice says?

A: Um, verbatim? Basically...the letter is stating that this is the final notice that we will be giving

you before we proceed [to trial].

Q: Tell me what it reads.

7

I

Formal declarations both colle

A: Bexar County District Attorney's Offide has received a complaint against you for the

are very likely to be testimonial. See C

offense of a theft by check. We have sent you a prior notice of this complaint and you

the objective purpose is to question a

have not responded. Continue?

would likely be relevant to a future ail

Q: Keep going.

in question were not reduced to writinc

A: We are concluding our investigation on this case and a warrant for your arrest may be

testimonial hearsay. By not objecting

forthcoming. Upon the warrant being issued, you will be subject to arrest by any law

the declarants at the bank who origins

enforcement agency in the State. You must comply with this notice within seven days in

order to avoid a warrant being issued. If you wish to avoid this -- these consequences,

iii. Counsel Failed to Object When

Evidence of Guilt.

you must immediately obtain a money order or Cashier's Check for restitution, merchant

fees 'and districtattorney's fees in the amount of $6,105. Make Cashier's Check or money

As a matter of law, it's axiomatic that

order payable to the District Attorney's Office Check Section. No personal checks. If

law, both from the bench and in its wr

i

administrative document...that's not

paying in person with cash, it must be in the exact amount as no change is provided or

available. And then the address must be to deliver in -- in person is the -- at the Paul

guilt"). Nevertheless, the State proffe

Elizondo Tower, 101 West Nueva, Suite 110, in San Antonio, Texas 78205.

object, as the following record reflect.

Q: Okay. And was this letter or this notice sent certified mail?

A: No, ma'am.

MR. FLORES: Your Honor, at this tiril

for any objections and inspection.

This verbatim work product of the State should not have been admitted for two reasons: (1) given the

correspondence in question was clearly made in anticipation of criminal litigation, that work product is not only

MR. ZIMMERMAN: No objection.

Counsel also never request

hearsay, but rather is testimonial hearsay, and (2) even non-testimonial hearsay made by a member of law

enforcement is inadmissible, by rule, in a criminal proceeding. See TEX. R. EVID. 803(8)(A)(ii)(exempting from

nor did the trial court deliver one on

exceptions to Texas hearsay rule "[any] matter observed while under a legal duty to report, but not including, in a

as it could readily be mistaken by th

criminal case, a matter observed by law enforcement personnel"); see also Fischer v. State, 252 S.W.3d 375, 382

could explain this level of profession

(Tex. Crim.App. 2008) (explaining, "[b]oth the federal and Texas hearsay rules have always

excluded...investigation observations of law enforcement officers because their factual observations, opinions,

and narrations are made while the officer is 'engaged in the often competitive enterprise of ferreting out crime");

Because deprivation of the

shown if even a "reasonable probab

proceeding would have been differe

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 316, 321-22 (suggesting reports of investigating officers detailing

circumstances surrounding crime are testimonial and noting that police work product does not qualify as business

records because it is made essentially for use in court); Cole v. State, 839 S.W.2d 798, 811-812 (Tex.Crim.App.

reasonable probability is one sufficient to undermine confidence in the outcome of this case. Strickland, 446 U.S.

at 694; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). That said, a defendant need not prove that

counsel's actions "more likely than not" altered the outcome of the trial. Harrington v. Richter, 131 S.Ct. 770, 792

(2001).

ADDITIONAL FEDERAL QUESTIONS

The 4th Court of Appeals decision to deny appellant's His Right to Due Process of Law under The Fifth

Amendment, His right to the Presumption of innocence under Universal Declaration of Human Rights Article 11,

and His SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER all as a direct correlation to ineffective

assistance of trial counsel raised on direct appeal directly conflicts with Texas Criminal Court of Appeals and The

United States Supreme Court.

As pertinent here, Texas law provides that, if: (1) a holder in due course presents a check exchanged for

property or a service within thirty [30] days of its issuance;(2) a bank or other drawee refuses payment on that

check for insufficient funds; and (3) the issuer fails to pay the holder in full within 10 days after receiving notice of

that refusal, then such predicate facts constitute "prima facie evidence of the issuer's intent to deprive the owner

of property under Section 31.03 (Theft)". TEX. PENAL CODE § 31.06(a)(2) (West 2013). Regarding what exactly

suffices as "notice of that refusal, "the statute clarifies:

For purposes of Subsection (a)(2) ... notice may be actual notice or notice in writing that [is

addressed and mailed in a specified manner] [and] contains the following statement:"This is a

demand for payment in full for a check or order not paid because of a lack of funds or insufficient

funds. If you fail to make payment in full within 10 days after the date of receipt of this notice, the

failure to pay creates a presumption for committing an offense, and this matter may be referred

for criminal prosecution."

TEX. PENAL CODE § 31.06(b)(1),(2),(3) (West 2013). "The facts giving rise to [any such] presumption

must be proven beyond a reasonable doubt."

I

THE COURT OF APPEALS ERRED IN HOLDING THAT ONLY ISSUERS WHO ARE DELIVERED WRITTEN NOTICE OF A REFUSED

CHECK ARE ENTITLED TO KNOW THAT FAILING TO PAY THE HOLDER IN TEN DAYS "CREATES A PRESUMPTION FOR

COMMITTING AN OFFENSE, AND THE MATTER MAY BE REFERRED FOR CRIMINAL PROSECUTION."

Jury charge error for which no objection is made may nevertheless support a reversal if the error results

in egregious harm. See, e.g., Ngo v. State, 175 S.W.3d 738,743 n.7 (Tex. Crim. App. 2005) (citing Bluitt v. State,

137 S.W.3d 51, 53 (Tex. Crim.App. 2004) (holding, "An appellant may raise such unobjected-to charge error on

appeal, but may not obtain a reversal for such error unless it resulted in egregious harm")). Jury charge error "is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory. "Sanchez v. State, 209 S.W.3d 117, 120 (Tex. Crim. App. 2006).

THE COURT OF APPEALS ERRED BY HOLDING THE RECORD CONTAINS SUFFICIENT EVIDENCE FROM WHICH THE JURY

COULD RATIONALLY FIND THAT APPELLANT ACTUALLY RECEIVED AT LEAST TEN DAYS'NOTICE BEFORE THE INSTANT JURY

CHARGE WAS READ BELOW.

The Reasoning of the Court of Appeals is Flawed Because the Only Notice Ever Shown to be

"Actually Received" Here Includes No Proof of the Content Specified by § 31.06(b)(3).

To be sure, certain types of actual notice will not admit to the mailing and address requirements of §

31.06(b)(1) & (2). However, that fact, alone, should not be taken to mean that written notice is the only actual

notice that must include the admonition set forth in § 31.06(b)(3). Appellant never said anything different. Stating

that an issuer actually received notice ... [that is] at least functionally equivalent to the language quoted in §

31.06(b)(3) ... then the State is not entitled to a presumption instruction like the one given here"). Indeed, all

targets of State debt collection under § 31.06 deserve to be told that a failure to meet the State's demands within

ten [10]days will create legal presumption that may be used against them in a future criminal proceeding. Only

when such warnings are actually or presumably given are presumptions like those used below justified. But when

no proof of such admonition is present, as here, then neither is the justification. The State may still prosecute the

issuer, and even point to the same facts in support of its claim of culpable intent, but they shouldn't be able to use

legal presurhptions to make its burden any easier. The court of appeals effectively ruled the notice required by

§31.06 may vary in content with the means used to deliver that notice. Targets who receive written notice

are deemed special, for they, alone, get to be informed that a harmful legal presumption may be taken against

them in a future criminal proceeding. But treating "written notice" and "actual notice" as if they're mutually

exclusive is unwarranted. The two constructs are not separate and distinct. Written notice is just one means of

achieving actual notice. Thus, the latter subsumes the former. What's more, incorporating the § 31.06(b)(3)

warning into the "actual notice" already required in every case would work no undue burden on the State, while

adding substantial fairness to the process. The warning set out in § 31.06(b)(3) should thus be held to apply to all

issuers equally. Because the court of appeals held otherwise, in a footnote, this case presents a novel and

interesting issue of statutory construction. When construing a statute, this Court will give effect to the plain

meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature

could not possibly have been intended. The words and phrases are read in context and construed according to

accepted rules of grammar and usage. A statute must be read as a whole in determining the meaning of particular

provisions, and it is presumed that the entire statute is intended to be effective.

If the statute is ambiguous or leads to absurd results, extra textual factors may be consulted, including:

(1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative

history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the

consequences of a particular construction, (6) administrative construction of the statute, and (7) the title [caption],

preamble, and emergency provision. Oliva, 548 S.W.3d 521-22. Here, the court of appeals analyzed none of

those factors. If discretionary review is granted, appellant will treat each factor individually. See Bradley v. State,

235 S.W.3d 808, 810 (Tex. Crim. App. 2007) (Cochran, J. concurring) (stating, "[a] petition for discretionary

review need not (and should not) attempt to resolve the merits of the question presented. It need only attract the

interest of at least four judges concerning the legal issue [presented]") (second parenthetical in original).

Trial began in this case on March 26, 2018. The only notice ever shown to have been actually received

below was a phone call between Nagore & Roberts. But so far as any factfinder could rationally infer, that

conversation could have taken place as late as March 25, 2019. Certainly nothing in our record supports an

inference that it occurred ten [10] days before the jury charge was read here. Because the State produced no

evidence of when Nagore spoke with appellant, the instructions included below should not have been given.

D. Harm

In the briefs below, appellant discussed at length how the instant instructions caused him egregious

harm. Reasserting that same argument again here would be beyond the proper scope of a petition for

discretionary review. See Bradley, 235 S.W.3d at 810 (Cochran, J. concurring) (stating, "[a] petition for

discretionary review need not (and should not) attempt to resolve the merits of the question presented").

Preservation of Error.

No trial objection is necessary to preserve error caused by legally insufficient evidence. As such, this issue may

be raised for the first time on direct appeal. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010).

Guiding Legal Principles.

Certain facts and circumstances, if sufficiently proven, may either: [1] serve as"prima facie evidence of the

issuer's intent to deprive the owner of property under Section 31.03 (Theft);" or [2] permit a finding that "the actor's

intent to deprive the owner of the property under Section 31.03 (Theft) is [simply] presumed. "TEX. PENAL CODE

31.06(a),(f) (West 2017). "The facts giving rise to [any such] presumption must be proven beyond a reasonable

doubt."

Because Comfort Roberts has indeed been subjected to egregious harm, appellant should be granted writ of

certiorari.

CONCLUSION

The petition for a writ of certiorari should be granted.

ctfully submitted,

Date: