Petition for Writ of Certiorari — Gilbert Tello, Petitioner v. Texas

isffyf

IN THE

SUPREME COURT OF THE UNITED STATES

TERM OF 2020

Supreme Court, U.S.

FILED

APR 2 2 2020

OFFICE OF THE CLERK

***★*★***★*******■*★***★*** ********************** ******** irk-kit-kick irk*-kick* ********

GILBERTO IELLO

VS.

BRYAN COLLIER, DIRECTOR OF THE

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CORRECTIONAL INSTITUTIONAL DIVISION

******************************************************************************

ON PETITION FOR WRIT OF CERTIORARI 'TO

THE TEXAS COURT OF CRIMINAL APPEALS

STATE OF TEXAS SUPREME COURT

******************************************************************************

PETITION FOR WRIT OF CERTIORARI

FOR REVIEW OF STATE COURT

*************************************** ***************************************

Respectfully Submitted

GILBERTO TELLO #2182783

899 F.M. 632 Connally Unit

Kenedy, Texas 78119

"• (

ISSUES FOR REVIEW PRESENTED

ISSUE NO. ONE ; whether the trial court violated petitioners right to a

speedy and public trial, Where petitioner was held in Webb County Jail for almmost

seven and a half year pending a trial by jury. with an outrageous 450.000

dollar bound, where he spent seven and a half years before a actual jury was

enpanaled for a jury trial Whether the trial court errored and denied petitioners right to

a fair sentencing trial of his affirmative defense taken and then rejected by

ISSUE NO. TWO;

the jury, and for sentencing petitioner in accordance with the jurys verdict

however ussing this same jury to impose a 70 year prison sentence, however on the

bullet he fired

recomended sentence of the prosecutor, ten years for every

tell the jury he fired 7 bullets, the jury and the judge then impossed a

strait 70 year sentence for murder.

ISSUE NO. THREE Whether Petitioner recieved Ineffective assistance of trial

counsel who aided the state in stalling the case, where then after a trial by

jury seven and a half years later, trial counsel fails to file Motion for new

trial of a murder conviction and 70 year prison sentence of February 24, 2018.

was same counsel of jury trial,

And ineffective assitance of appeal counsel who

where in his direct appeal brief counsel states that a timely notice of appeal

was filed on February 24, 2017, an entire year earlier then his trial date had

even started on February 26, 2018 ending in March 5, 2018.

ISSUE NO. FOUR: whether the court of appeals has errored in not reversing the 70

year prison sentence, where petitioner was entitled to reversal after direct

appeal was final, where the goverment mental records of petitioner mental status

confirms petitioner was entitled to a special sentence such as a ten year sentence

for the murder, not a ten year sentence for every bullet fired 7 bullet 70 years

strait sentence, a affirmative defense rejected by the jury at actual arraignment

federal stage proceeding for murder for affirming a Domestict violance of an

extraneous offense submitted to jury over objection.

ISSUE NO FIVE Main issue for granting writ, whether the goverment trial court

jury, court of appeals errored when conspirring with the federal stage proceedings

in the rejection of his Temporarily Insanity defense, for dispossing of a federal

;

stage , and impossing an illegal 70 year prison sentence for murder, Petitioner

a Border Patrole

was diagnosed with PTSD by the goverment in 1992, And worked as

agent for 12 year permitted to carry a gun, and that due to his wrongfull termination

shoot and kill his wife. However rejects

cause undue stress and petitioner to

his affirmative defense to except no liability of the federal goverment, reevaluating

petitioner by Rusk State Hospital in 2013 after the murder had accurred.

ii.

TABLE OF STATUTES

STATE STATUTE

Page

V.A.C.C.P. Art. 28.01

9,10

o

V.A.C.C.P. Art. 26.02

V.A.C.C.P. Art. 36.01

11

Texas Rules of evidence 401, 402

15

Texas Rules of Evidence 404 (b) , 404 (b)(2)

15, 17

Article 38.36 Rule 404 (b)

17

Federal statutes

5th AMENDMENT TO THE UNITED STATES CONSTITUTION

2, 14

6th AMENDMENT TO THE UNITED STATES CONSTITUTION

1$

14th AMENDMENT TO THE UNITED STATES CONSTITUTION

iii

2

TABLE OF CONTENTS

On Petition For Writ of Certiorari to the Fourth Court of Appeals

San Antonio Texas Fourth District.

Page

Opinion

Pg 2

Jurisdiction

Pg 2

Constitutional and Statutory Provisions Involved

Pg22

Statement of the Case

Pg 3

Reasons For granting the Writ

Pg

Conclusion

Pg

Oath

pg

Proof of Service

Pg

Appendix A thru

Pg End

/*

iv

INDEX TO APPENDIXES

1. Appendix A. Fourth Court of Appeals Opinion

2. Appendix B. White Card from the Texas Court of Criminal Appeals

on filing of Petition for Discretionary Review PDR by Counsel

3c Appendix C. White Card

from the Court of Criminal Appeals

informing Counsel to send ten copies is required per rule

Appendix D. White Card from the Texas Court of Criminal Appeals

Refusing Petition for Discretionary Review PDR

Appendix E. Pro Se Motion for Rehearing, And Court of

Criminal Appeals white Card Denying Rehearing

Appendix F. Mandate Issued by the Court of Appeals

v.

TABLE OF AUTHORITIES

STATE CASE

PAGE

S.W. 2d- 469, 473 (Tex.App. 1976)

9.

Cameron V. State 241 S.W.3d 15, 19 (Tex.App. 2007)

12

Garcia V. State 201 201 S.W. 3d. 695, 703 (Tex.Crim. App. 2006)

15. 17

Chavez 399 S.W. 3d at 173

Matlock 392 S.W. 3d. 671

17

12

FEDERAL CASES

PAGE

Carpenters V. United States 330 U.S. 395, 410, 67 S.Ct.775

13, 14.

Cool V. United States 409 U.S. 100, 104 93 S.Ct. 354,

34 L-Ed. 2d. 335 (1972)(per curiam)

14.

Duncan V. Louisiana, 391 U.S. 145, 149 88 S.Ct. 144

1447 20 L. Ed. 2d. 491 (1968)

13

E.G. uatterson V. New York 432 U.S. 197, 210 97 S.Ct. 2319

2327, 53 L.Ed. 2d. 281 (1977)

14

In Re Winship 397 U.S. 358, 364, 90 S.Ct. 1068, 1072

25 L.Ed. 368 (1970)

14

Leland V. Oregon 343 U.S. 790, 795 72 S.Ct. 1002,1005

96 L.Ed 1302 (1952)

14

Spart and Hanson V. United States, 156 U.S. 51, 105-106

15 S.Ct. 273, 294-295 39 L.Ed. 343 (1895).

13

United States V. Martin Linen Supply Co. 430 U.S. 564

572-573, 97 S.Ct. 1349, 1355-1356 L.Ed. 2d. 542 (1977)

13

Vi.

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

TERM 2020

******************************************************************************

GILBERTO TELLO

VS.

BRYAN COLLIER, DIRECTOR OF THE

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CORRETIONAL INSTITUTIONAL DIVISION

RESPONDANT

******************************************************************************

ON PETITOIN FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

STATE OF TEXAS APPEALS COURT

*************************** ***************************************************

TO THE HONORABLE JUSTICE OF SAID COURT:

Comes

Now Gilberto Tello, Petitioner in the above styled cause, presenting

tnis nis Petition for Writ of Certiorari Seeking a Review of the Texas Court

of Criminal Appeals Refusal of Petitioners Petiton for Discretionary Review.

Denial of his Motion for Rehearing, And the affirming of his illegal conviciton

and 70 year prison sentence of conviction abtained in violation of the U.S.

Constitutions.

And his Unconstitutional confinement and restraint from judg­

ment of i_ne 14th Judicial District Court of Webb County, Texas cause number

2012-CRN-000013-D1. Affirmed by the Fourth Court of Appeals San Antonio Texas.

Case Number 04-18-00220-CR. Petitioner had clearly made a. showing of the

Denial of a Constitutional Right. And the Texas Court of Criminal Appeals

has refused his PDR. In support Petitioner would present the following.

1

OPINION BELOW

The unpublished written

opinion of the Fourth Court of Appeals San Antonio

Texas Affirming Petitioners Convicvtion of Murder Appears in Appendix A

The White Card from Texas Court of Criminal Appeals ' on filing of Petition

For Discretionary Review1 PDR by Counsel Appears in Appendix B„

The White Card from the Court of Criminal Appeals informing Counsel ten copies

is required, par rule or Petition may be refused Appears in Appendix C.

White Card from Texas Court of Criminal Appeals Refusing Petition for Discre­

tionary Review PDR in Appendix D„

Pro se Petitioners timely filed, motion for rehearing, and Court of Criminal

Appeals refusing white Card denying rehearing appears in Appendix El

Mandate Issued by Court of Appeals appears in

Appendix F,

JURISDICTION

The Fourth Court of Appeals Opinion was Issued and Signed on August 28,

2019„ On October 28, 2019. Counsels filed Petition for discretionary Review

was filed. Then on February 5, 2020, The Texas Court of Criminal Appeals

Refused Counsel's Petition For Petition For Discretionary Review. And the Mandate was Issued on

accordance with Court's Opinion of this

dace, the Judgment of the Trial Court is Affirmed, Fourth District of Texas

with the seal

of the court affixed. The Petitioner has 90 days from date

of the Last State Court denying relief or motion for rehearing, to Petition

this court for a Writ of Certiorari for Review of the Lower State Courts

Denial of his Constitutional Rights. Thus this Supreme Court's Jurisdiction

is Invoked under Title 28 U.S.C. 1257(A).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVLOVED

1. 5th Amendment to the United States Constitutin.

2. 6th Amendment to the United States Constitution.

3. 14th Amendment to teh United States Constitution.

2

STATEMENT OF THE CASE

Petitioner Gilberto Tello was arrested by the Webb County on one count

of Murder on October 23, 2011, it was alleged that he had been indicted on

one count of murder in the 49th Judicial District Court of Webb County, Texas.

Petitioner is a disabled veteren fromn the U.S. Marine Corps from Desert

Storm in combat role. He was diagnosed by the Federal Government with PTSD

in 1992 or 1993. He was arrested for the murder of his comman law wife. He

remained in the Webb County jail on an outrageous bond of $450,000.00 Thousand

Dollars, where he spent over a year half time in the county pending trial

for a murder indictment.

He was arrested on October 23, 2011 and stayed in jail a year and a half

time in the Webb County jail. And before having to enpanai a jury for a

jury trial for the alleged murder indictment. The Petitioner is sent to the

Rusk State Hospital in Austin Texas, on April 18, 2013 where he stayed until

August 8, 2013. He was returned to the Laredo county jail on a second booking

number 2013-6883 when arriving back to the county jail from Rusk State Hos­

pital. Accepted by the Sheriff of Webb County jail bn August 18, 2013, where

he now remained pending jury trial for this murder of his wife, where finally

then on Feb. 26, 2018. On this date a jury was picked and enpanaled for a

jury trial for the alleged offense of murder.

A trial that took almost seven years from the time of his arrest on October

23, 2011, unitl jury trial date of Febuary 26, 2018. Then on March 5, 2018

Petitioner was alleged to have been found guilty and this same jury assessed

punishment at 70 years and a fine of $8,000.00. The trial court sentenced

Petitioner in accordance with the verdict of the jury, based on the prosecutors

recommedation to the jury that they impose ten years for every bullet he

fired, informing the jury that he fired seven bullets and the jury imposed.

a flat 70 year sentence. The trial court judge pronounced upon petitioner

sending him to prison for 70 years. Petitioners trial counsel did not file

a motion for new trial. But states in his Direct appeal brief that a "timely

notice of appeal was filed on "Febuary 24, 2017 I II , a year and two days earlier

than his trial date even started on February 26, 2018 ending March 5, 2018.

3

Tine Petitioner filed a direct appeal brief through hired appeal counsel

Jose Eouardo Pena, in the Fourth Court of Appeals in San Antonio Texas on

January 14, 2019. The Fourth Court of Appeals delivered and filed it's Opinion

August 28, 2019. Where the court of appeals overruled appellant's counsel's

two points of error raised in direct appeal brief. And affirmed the trial

court's judgment.

Appeal counsel Jose eduardo Pena informed the Appellant the court of appeals

had affirmed his case on August 28, 2019. And that Appellant could file a

Pro se Petition for Discretionary Review PDR in the Texas Court of Criminal.

Appeals

Petitioner not knowing how to do a Pro se Petition for Discretionary

then hired Jose Eduardo Pena to file the Petition for Discretioary

review

Review PDR. Jose Eduardo Pena then filed a Petition for Discretionary Review

in the Texas Court of Criminal Appeals PD-1085-19, transmitted on October

28, 2019 Accepted October 28, 2019. However, Appeal counsel intentionally

failed to send the required Ten copies and was sent a white caro from the

Texas ■ Court of Criminal Appeals stating the court requires Teh copies of

the document to be filed in the court within three days pursuant to Rule.

9.3(b).

Failure

to send copies will "Result in the Refusal of the Petition."

Then on February 5, 2020 -the appeal counsel Jose Eduardo Pena received

a White Card from the Texas Court of Criminal Appeals stating that on this

dayte the Appellants Petition for Discretionary Review has been refused.

Petitioner's appeal

counsel did .not send him the white card of the iexas

Court of Criminal Appeals refusing the PDR until after the fifteen days for

filing a motion for rehearing had expired. He then informed Petitioner his

PDR has been refused.

The Petitiner then filed a Pro se motion for Rehearing in die Texas Court

of Criminal Appeals explaining it was timely if it was counted from the time

he recieved the White Card from his appeal counsel. However, the Texas Court

of Criminal Appeals denied Petitoners Pro se motion for Rehearing as untimely

^ trf

^ /&&***% vs

4

STATEMENT OF FACTS

The Petitioner Gilberto Tello a Disabled: war veteren was charged with

the

murder of his common law wife Marisella Florez. Petitioner had been diagnosed

with PTSD by the Federal government in 1992 or 1993. And had been receiving

Mental Health since his diagnosis. After his Diagnosis he further worked for •

the United States Postal Service as a Mail carrier fro 10 years. After thet

job he worked as a Border Patrol Officer with the United States DHS CBP U.S.

Border Patrol

for 12 years. Where he was authorized to carry a Gun. The

Petitoner was

wrongfully

terminated

as

a Border partol agent prior to the

murder of his wife for a unknown reason other than erratic behavior was alleged

that he vras terminated as a Border Patrol officer. This wrongful termination

of his

job

as

a Border patrol officer caused the petitioner undue stress

and family problems due to his now unemployment.

The

Petitioner

and his common law wife marisella Florez were romantically

involved, but their status as a couple appeared to fluctuate after the wrongful

termination of his job as a border patrol agent. On October 23, 2011 Petit­

ioner and his wife had a heated arguement at a McDonalds near Florez home.

A few hours later, Petitoner shot Florez outside the front door of there

home. When officer responded to the shooting they encounted Tello who admitted

he had shot Florez because she "Practiced Witchcraft". He then showed the

officers where he had put the gun he used. He also told the officers he did

not want the children to see their mother's body. The Officers discovered

Florez body near the front door. Officers escorted Petitioner to the Laredo

Police Station where he spoke with Detective Richard Reyes, while walking

Tello to an interview room, Tello voluntarily told Detective Reyes that St.

Micael had taskeo him to rid the world of all evil. Detective Reyes informed

Tello of his Miranoa Rights. Tello invoked his rights to an attorny and De­

/

tective Reyes terminated the interview before asking any questions. Tello

then asked Detective Reyes if he could go free is he killed Florez, for "Biblical reasons.'

5

At trial Tello did not consent whether he killed Florez. Rather he claimed

he was not guilty by reason of insanity. In presenting his insanity defense,

the trial court admitted medical records into evidence showing his diagnosis

of Psychosis and paranoid delusions. Tello also called Dr. Michael Jumes

and Dr, Jogn Fabian as Expert witnesses to testify that they believed Tello

was legally insane at the time he committed the murder. The State called

Dr. Timothy Proctor as a rebuttal expert witness Dr. Proctor testified that

in his professional opinion, Tello was not legally insane at the time he

committed the murder. The State also introduced evidence, over 'Tello's objec­

tion of one instance of Tello's violence against Florez. The jury rejected

Tello's insanity defense and alleged to have found him guilty of murder.

And Tello Appealed.

The Petitioner would show this court that he was arrested for the murder

of his wife. He never denied shoting and. killing her. He even flagged down

the police, showed them where the gun was,. He was arrested and held in the

Webb County jail from the time of his arrest on October 23, 2011 prior to

October 23, 2011 before the murder had even happened he had been in a nd

out of mental health clinics for alleged erratic behavior. However after

the murder occurred he was arrested and held in the Webb County jail from

October 23, 2011 until April 10, 2013, He was denied a trial by jury from

time of his arestl on October 23, 2011. All through April 10, 2013. And held

on a $450,000.00 Thousand Dollar bond. Whereas it was well known to the trial

court that Petitioner was incompetant to stand trial for the offense charged

Finally on April 10, 2013 the trial judge then sends Petitoner to the Rusk

State Hospital where he stayed until August 8, 2013. Where Petitioner is then

returned to the Webb county jail. And then remains in the Webb County jail

until his alleged trial by jury on February 26, 2018 thur March 5, 2018.

Seven and a half years after his arrest on October 23, 1011.

However, the petitioner would make it clear for the record that he had

no prior felony convictions, and a clean record. However, prior to the murder

arrest on April 23, 2011 approximately three years prior to the The Petitio­

ner would show that he had been pulled over for a Traffic violation, he was

pulled over bya State Trooper whom ran a criminal check, and it all came

back clean and in good standing order. He then goes on to say that he was

6

smeling alcohol on my person. And wanted to conduct a field expediate test

on the side of the highway. I aa?rested my right under the 6th amendment not

to self incriminate who in turn decided to take me in to the Webb . County

jail. He impounded my vehicle and I was later released within less than Eight

hours. Whereby returning back to work as a Border patrol agent. I was ordered

to appear before a State Judge for this appearant speeding violation and

possibly a suspension of driving privileges.

I hired criminal attorney Sergio (Keko) Martinez from Laredo Texas who

represented me in this State court proceeding who argued against any type

of punishment. I never plead guilty to any offense. However, the State judge

went on to impose a six month temporary suspension of my Driver's License

with the rioght to apply for a temporarily driving permit which I applied

and. recieved this permit before the said suspension had taken place. This

temporarily driving permit was opnly to work or to school to go grocery

shopping and back to the house only. I was basically on a house arrest for

a six month suspension of drivers license where as I never plead guilty to

any DWI whether a misdemeanor or felony.

Upon completing the punishment of this temporarily six moth limited driving

suspension. I recieved back my full driving privileges from the State and

all this matter had ended "at least that was what I thought." Not realizing

that at this point was where the Governments and State authorities would

all conspire against me for my wrongful termination of a Border patrol agent.

So for the record; Their was no DWI charge or any type of test that supported

a formal DWI charge. At the State court proceeding for suspension of driving

privileges, no DWI was ever mentioned. Further if I would have had a DWI

felony charge on my revord when this incident occurred. I would have been

fired immediately from the U.S. Border Patrol. And. this never happened as

for any DWI conviction.

However, the petitioner would show that he is a war veteren who was diagnosed

with PTSD by the federal government in 1992 or 1993, and was under mental care

since diagnosed with PTSD. He worked for the United States Postal Service

as a letter carrier for 10 years, and after that job he worked as a Border

patrol agent for 12 years, and was permitted to carry a gun with his well

known PTSD diagnosis by the federal government. At the time of his employment

7

as a Border patrol agent. The government opposed his hiring as a Border patrol

agent. However, later hired him based on the results of a civil action against

the Border Patrol Agency.

So

therefore, Petitoner can show that he was a war veteren from the Desert

Storm

who was diagnosed with PTSD in

1992 or 1993 by the federal government.

Abnd worked as a Border patrol agent for 12 years, where he was permitted

to carry a Gun. And did not want to be hired in the first place by the govern­

ment as a Border Patrol agent. However, they ghad a change of mind after

a lav/suit. And therefore, Petitioner would show that the government had a

motive in his wrongful termination as a Border patrol agent and :conppired

with State authorities to even fabricate a DWI charge, and a wrongful murder

conviciton, whereas such a charge could result in termination of a Border

- patrol agent. A false charge that resulted three years prior to his wrongful

termination as a Border Patrol agent, However, the government alleged he

was terminated for his erratic behavior.

The

petitioner would show that when he was arrested for the murder of his

wife in October 23, 2011, where he remained in the county jail alleged to

be pending trial for this alleged murder indictment from October 23, 2011.

Until April 18, 2013 with a bond of $450,000.00 Thousand Dollars. The Petitio­

ner had already been wrongfully terminated as a Border Patrol agent prior

to any murder of his wife and therefore, when arrested for the murder of

his wife,for which he

remained in the Webb Comity jail from October 23,

2011 until April 18, 2013 when he was then sent to Rusk State Hospital based

on his public defenders defense of Temporarily insanity for the alleged murder.

Petitioner would submit he prevailed for .the charged offense whether the

actual murder indictment alleged. Or the government pending indictment the

petitoner

actually spent over a year in the county jail from October 23,

2011 the

allegedmurder date until Apriil 18, 2013 when he was then sent

to Rusk State Hospital. Therefore, petitioner would submit that when he wasi<"^

to Rusk State Hospital, he was sent on a governments pending indictment such

as a felony DWI, Whereas no jury had even been enpanaled for the alleged

murder indictment of his wife. And was not enparaled until he is returned

to the Webb County jail from the Rusk State Hospital, just after a 120 days

in the State Hospital. He is then held from his return to Webb county until

his

trial

and

such

date of February 26, 2018, where a Grandjury was finally enpanaled

proceeding trial by jury lasted until March 5,th, 2018. Where this

8

same

jury

to have

trial

a federal

found the

stage proceeding the actual arraignment, then alleged

Petitioner guilty of the murder. And a sentencing phase

proceeded where

this

same jury sentenced petitioner to a straight 70

year prison sentence. However, based its 70 year prison sentence imposed

on the prosecutors recommendation that they give him ten years for every

bullet he fired. Informing the jury that he fired seven bullets. This same

jury in this actual arraignment proceeding, a federal stage proceeding hands

down a straight 70 year prison sentence. For which the trial judge then reads

to the defendant sending him to the Texas Department of Criminal Justice

to imprison him for 70 years.

The trial court and the appeals court have infact errored in this case,

in the denial of relief of his illegal 70 year prison sentecne imposed by

this jury in there federal stage proceeding. For an alleged indictment of

of murder conviction. However, such illegal federal jurisdicitonal sentence

holds the petitioner in State Custody under federal jurisdiction; a war veteren

that had been diagnosed with PTSD by the federal government, who's defense

was rejected by the government for sending him to State prison for 70 years.

ARGUEMENT WITGH AUTHORITIES

The petitioner would argue that his rights toa Speedy Trial have been vio­

lated. The petitioner spent seven and a half years in the Webb County jail

awaiting trial by jury with a $450,000.00 Thousand dollar bond. After 7 and

a half years a actual Grandjury was enpanaled, where the government presented

a murder offense. And the actual arraignment began on February 26, 2018 lasting

through March 5th 2018. With an alleged guilty verdict for murder, and sent­

enced of 70 years. The petitioner would argue that Arraignment i.is not part

of a trial by jury. 4222 S.2d. 469, 473, (Tex.Crim.App. 1976). And is one

of

the proceedings that can be disposed of by a pre-trial hearing. See V.A.C.C.P.

Art. 28.01 And therefore, the Petitioner would show that this was what occurred

after, this actual arraignment stage/indicting proceeding, for the offense

charged and on trial for, and the petitioners defense for which governmental

records supported in this stage of the proceeding.

The purpose of arraignment is to read the indictment to the accused, hear

his plead and to fix his identity, V.A.C.C.P. Art. 26.02. And it usually is the

point in the criminal proceeding at which the trial court determines if the

accused has counsel and if appointment of counsel is necessary. Therefore,

9

unless arraignment is waived, most careful trial judges make every effort to see

that arraignment occurs as early in the proceedings as possible. Not lh years

later

The Petitioner "would show that he was alleged to have been arrested and

indicted

by a Grandjury for murder, prior to any actual grandjury even being

enpanaled to hear the States case. Petitioner was arrested for the murder

on October 23, 2011 and remained in the county til April IS, 2013 before

he was sent to the Rusk State Hospital . At no time during October 23, 2011

thru April IS, 2013 was the actual grandjury enpanaled for a murder indictment,

although it was alleged he was in jail for murder indictment, and $450,000.00

thousand dollar bond. The very purpose of arraignment has already been served

in most instances when arraignment is delayed until after both sides have

announced ready at the trial on the merits, and a jury has been selected

and

sworn. When arraignment is so delayed it is usually an oversight or an omission

and then is performed merely because Statute V.A.C.C.P. Art. 26.01 requires

the same.

Petitioner would further argue that the actual arraignment is required

by

statute for the full closure of a case. And vhen one whom is charged can

not legally be held competent to stand trial for the charged offense. The

actual arraignment the indictment proceeding is required to determine any

lesser offense or special sentence based on his affirmative defense. Such as in

this case, a temporarily Insanity defense.

•

And therefore, the petitioner would show and argue that after the actual

arraignment a proceeding that was required in this case, that the trial court

then used this same jury in a sentencing phase trial to impose a illegal

70 year prison sentence for the alleged murder indictment conviction. A sentencing phase trial by this same jury that was returning a indictment for

any lesser offense. However, the prosecutor strategy in the sentencing phase

with this same jury he tells the jury to' impose a ten year sentence for which

petitioner would show is a special sentence. And one that could be suspended,

and a probation imposed, being petitioner was a first time offender with

no criminal record. However, the stratgy was to have the jury impose a ten

year sentence. However, as he recommended to this jury to impose a 10 year

sentence fro every bullet petitioner had fired. And informed the jury that

petitioner had fired 7 bullets. This same jury the actual grandjury now used

in the sentencing phase stage trial sentences petitioner to 70 years for

the alleged murder conviction.

10

i

The

trial court imposes the jury's 70 year prison sentence and sends petitioner to prison for 79 year judgment for murder. Petitoner would argue that

this was no justification for conducting the arraignment in the presence of the

jury. However, the petitioner would further show that any inadvertant remark

or

innocent

for

a mistrial

the actual

inquiry, ect. in the jury1 shearing easily could become the basis

or even a trial court strategy for disposing of a case after

arraignment, a federal stage proceeding.

In the instant case, petitioner contends the second reading of the murder

indictment before the jury to satisfy the requirements of V.A.C.C.P. Art.

36.01 repetitiously chips at the presumption of innocence of the petitioner

based on rejected defense of temporarily insanity, in this satge of the pro­

caeding. No form of jury instruction to the effect that the indictment is

guilt can remove the psychologcal effect of the repetition

no evidence of

upon the juey.

Petitioner would argue that the court of appeals has infact errored in

failing to reverse the trial courts judgment of 70 years, for which has denied

the petitioner's right to trial by jury on the True-bill of Indictment. Ana

is denying the petitioner to fairly challenge the governments conviction

in Habeas Corpus proceedings for the alleged conviction affirmed by the court

of appeals, such as family violence that the court of appeals affirmed and

based there affirmative opinion on, And therefore, the court of appeals has

errored in failing ot order a new sentencing phase trial.

The court of appeals opinion states Gilberto Tello was convicted by a jury

of Murder. And that on appeal direct appeal of this murder conviction he

argues insufficient evidence supports the jury's rejection of his insanity

defense. And that he also contends the trial court erred when it admitted

evidence of a prior act of domestic violence over his objection. However,

goes on to affirm a judgment of conviction of the trial court.

The petitioner would show that the court of appeals has errored by not

reversing his 70 year sentence for murder, whereas the petitioner was entitled

to a reversal after direct appeal. And to be tried and or sentenced for the

11

offense the court of

appeals

has affirmed. The court of appeals states the

jury convicted him of murder, and that the jury rejected his insanity defense

the petitoiner would argue that this jury was the actual grand jury, who heard

the case against the Petitioner. Ana could: have infact came to the conclusion

that the petitioner was not guilty based on his insanity defense for which

federal governmental Mental records supported. Thereby acquitting the peti­

tioner of the murder indictment of the prosecutor wildly charging him with

murder.

Whereas petitioner would shopw that when on a direct appeal appeal counsel

raises a claim of insufficient evidence on direct appeal, would be based

on counsel review of the record, the verdict of the jury cannot constitution­

ally stand. Whereas on direct appeal counsel clearly argued insufficient

evidence supports the jury's rejection of his insanity defense. And therefore,

petitioner would argue and show that it was error for the court of appeals

not to reverse the jurys 70 year sentence judgmenbt of conviction whereas

he was entitled to a reversal of his 70 year sentence after this direct appeal.

Became final the petitioner would show that the jury rejected his insanity

defenbse, on the trial courts admitted evidence of a prior act of domestic

violence. And is what the court of appeals has affirmed on a conviction of

domestic violence. However, has errored in not reversing this grandjury guilty

verdict for murder and 70 year sentence imposed in a sentencing phase trial

by this same jury, of the federal stage.

Whereas the court of appeals review of the case was under factual sufficiefiey

standard o review. Where the court of appeals states in the federal sufficiency

review of a rejected affirmative defense, an appellant court views the "En­

tirety of the evidence in a neutral light, but it may not usurp the function

of the jury by submitting its judgment in place of the jury's assessment

of the weight and creditability of the witnesses testimony. MATLOCK 392 S.W.3d.

at 671.

The court of appeals has infact erred in not reversing his 70 year sentence

for murder conviction whereas petitioner is entitled to reversal and remand

for a new sentencing phase trial for the conviction it has affirmed. In this

actual arraignment the indicting proceeding, two factors for the defense

12

who

evalauted Petitoner including a Dr. for the defense, all three testified

petitioner was mentally ill at the time of the offense charged.

.*v

And petitioner would show that the fact this was the actual arraionment

proceeding a federal stage proceeding, the jury could have infact found that

Tellq ,was hot guilty of the offense charged ending this federal stage proceeding. However, finding that petitoner was guilty of Family Violence rejecting

his insanity defense based on Family violence, returning a indictment for

Family Violence. Authorizing the State with Jurisdiciton for a conviction

of Family Violence. However, after the return of any indictment for family

violence. The trial court goes into a sentencing phase stage with this same

jury, the federal stage proceeding grandjury, where this jury imposes a

70

to

year

prison

sentence with instruction recommendation from the prosecutor

impose a ten year sentence for each bullet he fired, and that he had fired

seven bullets. This jury did just that and imposed a straight 70 year Null

and Void judgment actually turning petitoiner over to the State Jurisdiciton

for seven ten year sentences a total of 70 years, the court of appeals has

infact errored in not reversing this jury's /0 year judgment and ordering

a new sentencing trial.

The petitoner would show that the court of appeals has infact errored in

not reversing his 70 year prison sentence, that holds him illegally confined

And as of today he has not been tried on any true-bill of indictment. The

Sixth Amendment

provides

that

"in all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury

In DUNCAN V. LOUISIANA 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d.491

(1986), we found this right to trial by jury in serious criminal cases to

be "fundamental to the American scheme of Justice". And therefore, applicable^

in State proceedings. The right includes of course as its most important

element the right to have the jury rather than the judge reach the requisite

finding of "guilty" See SPARF AND HANSEN V. UNITED STATES 156 U.S. 51, 105106, 15 S.Ct. 2/3, 294 295, 39 L.eq. 343 (1895). Thus, although a judge :.may

direct a verdict for the defendant if the evidence is legally insufficient

to

establish

guilt.

He may not direct a verdict for the State, no matter

how overwhelming the evidence. Ibid. See Also UNITED STATES V. MARTIN LINEN

SUPPLY CO. 430 U.S. 564, 572-573, 97 S.Ct. 1349,1355-1356, 51 L.Ed.2d. 642

(1977) CARPENTERS V. UNITED STATES 330 U.S.,410,67 S.ct. 775,783,91L.Ed.973(■

(1947).

13

I

What

the

fact finder must determine to return a verdict of guilty is pre­

scribed by the Due Process Clause. The prosecution bears the burden of proving

all elements of the offense charged. See E.G. PATTERSON V.NEW YORK,432 U.S.197

210, 97 S.Ct. 2319,2327,53 L.Ed„2d. 281(1977), LELAND V. OREGON 343 U.S. 790,'

795 72 S.Ct. 1002-1005, 96 L.Ed. 1302(1952). And must persuade the fact finder

beyond a reasonable doubt of the facts necessary to establish each of these

elements, See e.g. IN RE WINSHIP 397 U.S. 358,364, 90 S.Ct. 1068,1072, 25

L.Ed.2d. 368 (1970). COOL V. UNITED STATES 409 U.S. 100,104, 93 S.Ct. 354,

34 L.Ed.2d. 335(1972)(Per,curiam). This beyond-a-reasonable-doubt requirement,

which was adhered to by virtually all common law jurisdictions, applies in

State as well as federal proceedings. WINSHIP SUPRA.

It is self evident, we think, that the FIFTH AMENDMENT requirement of proof

beyond a reasonable doubt and fee SIXTH AMENDMENT requirement of a jury ver­

dict are interrelated. It would not satisfy the sixth Amendment to have a.

jury determine that fee defendant is "probably guilty", and then leave it up to

the judge to determine as (winship ^requires) whether he is guilty beyond

a reasonable doubt. Our per curiam opinion in cage, Which we accept as control

ling, held that an instruction of the sort given here does not produce such

a verdict.

denied.

Petitoner's

Sixth

Amendment

right to jury trial was therefore,

In petitioner's case the jury rejected petitioners affirmative Insanity

Defense and alleged to have found petitioner guilty of murder, in this actual

arraignment

trial

a federal stage proceeding. And the trial court erred Wien

it admitted evidence'of a prior act of Domestic violence over his objection.

Where the trial court permittees, evidence of Domestic violence through testimony

States witnesses, and for allowing the jury to indict/find him guilty of

Domestic violence for rendering a guilty verdict, and having a sentencing

phase trial by jury for the alleged murder conviction and 70 year prison

sentence on his rejected defense. And therefore, the trial judge failed to

instruct fee jury that if they reject fee defense of Insanity for the murder:

offense,

it could not apply to Domestic violence, for a affirmative defense

and guilty verdict of Domestic violence. And therefore, the court of appeals

has erred in not ordering a new sentencing trial.

14

The petitioner would show that in his second point of error on direct appeal

'the court of appeals opinion states Tello argues the trial court erred when

it allowed testimony about an incident of Domestic Violence between Tello

and Florez approximately a year before Tello killed Flores., He argues the

testimony was irrelevant because it was not material to the case and was

there by inadmissible under TEXAS RULES OF EVIDENCE 401 and 402. In the alter­

native, Tello argues the testimony was inadmissible under Rule 403, and 404(b)

of the Texas Rules of evidence.

Petitioner would show that the court of appeals has erred in the affirming

of a Domestic Violence, The courts standard of review used was Cameron V.

State 241 S„w.3d. 15,19 (Tex.Crim.App.2007). The Court of appeals states

we review the trial; court's decision to admit the evidence an abuse of discretion standard. We will uphold the trial court's decision unless it is

outside the Zone of reasonable disagreement.

The petitioner would argue and show ythat the trial court did .abuse its

discretion in allowing the evidence testimony of State witness to family

violence although the evidence was proper under the Rules of Evidence the

court of appeals cites. For which such evidence of Domestic violemnce was

relevant evidence is admissible unless prohibited by Constitution, Statute,

the Texas rules of Evidence, or any other rules promulgated by Statute. Texas

R. Evidence 402 evidence is relevant if (a) it has any tendency to make a

fact more or less probable than it would without the evidence, and (b) the

fact is of consequence in determining the action, GARCIA V. STATE, 201 S.W3d.

695,703(Tex.Crim.App.2006). Whether an issue is material depends on the theories

of the prosecution and defense. In Murder case, the relationship between

the victim and the accused is material issue as stated in the court of appeals

opinion affirming the trial court judgment.

However, petitioner would argue that the trial court abused its discretion,

in admitting this evidence, and the cvourt of appeals has erred in affirming

where the court of appeals states it will uphold the trial court's decision

unless it is outside the Zone of reasonable disagreement. Whereas petitioner

would show three months before the killing charge evidence was submitted to the

jury of other ectraneous offenses for which petitioner was involuntary commit­

ted at the Valley Baptist Medical Center, and examining reports, which was

written by two different Doctors, stated "the patient appears psychetic and

paranoid" at times alert and oriented" at other times. This involuntary com-

15

mitment by the government occurred after he contacted the FBI from his college

campus claiming the Virgin Mary contacted him a week earlier and that [she

informed him]', there was going to be an attack.... on the world." This incident statement petitioner had made to the FBI whom arrested him for this

statement, whereas petitioner is a Cathie in religion and believes in- the- ■

virgin mary. At the San Antonio State Hospital prior to any murder charge

he was evaluated by other psychatrist who concluded "Tello had a new on

set of Psychosis with auditory hallucinations, paranoia, and gradiose and

diagnosed him® with an "unspecified psychotic disorder." The petitioner would

submit that this unspecified disorder would be his 1992 diagnosis*by the

federal government of his PTSD diagnosed in 1992 or 1993.

Petitioner would further show that prior to his involuntary commitment,

the jury was presented evidence of an extraneous other act, where the Peti­

tioner was arrested on federal property where in his vehicle he was transpor­

ting an AR-15 Assault Rifle in its transport case he had legally purchased.

He was informed by a letter of an investigation to his wrongful termination

of Border Patrol agent. A job he held for twelve years. While arriving to

this federal building he is arrested for having the AR-15 Assault Rifle in

his vehicle on federal property.. And again he is involuntarily committed,

upon this illegal arrest.

Further prior to these extraneous acts and before the wrongful termination

of his job as a Border Patrol agent, he is arrested for a traffic violation

and for refusing to take a DWI test on the side of the road by a State Trooper.

Petitioners only criminal record, whereas he was only given six months of

a suspended drivers license offense. Nor was he ever charged with any felony

DWI. For which Petitioner would now nelieve was the actual result of his

wrongful termination as a border patrol agent by the federal government whereas

/

Petitioner was a liability to the government whom had diagnsed him a veteren

with PTSD in 1992 and was working as a Border patrol agent whom carried a

gun for his 12 years as a Border Patrol agent. All of these incidents was

extraneous offense, acts presented to the jury, and no one testified as witness to these acts of the government against petitioner. The appeals court

has infact errored in upholding the trial court's decision, all the above

extraneous

acts

occurred before the murder charged petitioner went to trial

16

for murder,

and the court of appeals affirmative finding based on Domestic

Violence holding. And therefore, it can not be concluded that the trial court

did not abuse its Discretion when it went on to submit evidence from witness

i

of the

State on

the domesttic violence. For allowing the jury to return a

guilty verdict based on other extraneous acts of the government not on trial

for by jury, or related to the murder on trial for.

The petitioner would show that the court of appeals has errored whereas

all it had done is affirm the trial courts actions in this case. His acquittal

not guilty by temporarily insanity defense for such federal government records

support. for the offense on trial for and acquitted of murder. Whereas peti­

tioner would show that the court of appeals opinion is clear where the court

states a trial court may exclude relevant evidence of its probative value

is substantially outweighed by danger of unfair prejudice, confusion of issues,

misleading the jury, or by considerations of undue delay or needless pre­

sentation of cumulative evidence. Tex. R. Evid. 403 Rule 404(b) Prohibits the

use of prior bad acts to prove the defendant acted in conformity therewith,

hutallows that evidence to be used "for another purpose, such as proving

motive, opportunity, intent. preparation, plan knowledge, identity, absence

of mistake, or lack of accident." Id. R.Evidence 404(b)(2).

However,

the appeals court goes on to state Evidence otherwise admissible

under Article 38.36 and Rule 404(b) may still be excluded under Rule 403 if the

appellant demonstrates the damaging nature of the evidence outweighed its

probative value, CHAVEZ 399 S.W.3d. at 173 (citing Garcia 201 S.W.3d at 703-04).

The purpose in excluding relevant evidence under Rule 403 is to prevent a jury

that has a reasonable doubt of the defendant's guilt in the charged offense

from convicting him anyways based solely on his criminal character of because

he is generally a bad person. GARCIA 201 S.W.3d. at 704,

As previously dis­

cussed, the prior act of Domestic Violence was relevant in assessing a material

issue in the case and whether Tello had a motive to kill Florez. Nothing

in the record suggests the jury had a reasonabledoubt that Tello murdered

Florez or that he lacked the mental capacity to commit murder but convicted

him based on the evidence of the prior Domestic Violence. Citing Chavez 399

S.W.3d. at 173>

17

Ihe petitioner would show that for this reason the appeals court states

that had Domestic Violence not been submitted there was no doubt that the

jury would have convicted petitioner of the murder, whereas petitioner is

capable, whereas he is a war veteren from Desert Storm, diagnosed with PTSD,

and was not denying he shot and killed Florez because she practiced witchcraft.

And the federal government and State mental records of petitioner support

petitioner's insanity defense. Thereby acknowledging petitioner was convicted

of Domestic violence. And for which petitioner would submit court of appeals

could have affirmed conviction of domestic violence of the governments charge

of any prior bad acts prior to the murder charge on trial and acquitted of.

Therefore, the court of’ appeals has infact errored in upholding the trial

‘

S

court did not abuse its discretion, for rendering a 70 year prison sentence

for murder. Whgereas the evidence of family domestic violence was solely

to prove he had a propensity for violence, and that he acted in conformity

with that propensity on the, day of the murder.

N

The court of appeals has infact errored in not reversing the jury 70 year

sentence, a 70 year sentence for an alleged murder conviction, after actual

arraignment a federal stage proceeding. A 70 year sentence imposed by this

same jury horn was instructed by a prosecutor to actually impose a specific

sentence of ten years for a lesser offense of Dmoestic Violence, in such

a way as he stated to the jury the federal stage impose a ten year sentence

for "each bullet he fired." Informing the jury he fired Seven Bullets. And

this same jury imposed a straight 70 year sentence for the alleged conviciton

of murder.

And therefore, petitioner would show the court of appeals has infact errored

in not reversing the jury judgment of conviction for 70 years for murder.

Not reversing the case back to the trial court for new sentencing phase trial.

And or order his 7 ten year sentence, a ten year sentence for every bullet

he fired to run concurrent in a flat ten year sentence. Entering a new judgment

the appellant can fairly challenge by writ of Habeas Corpus, the method for

challenging the govememnts conviction.

18

CONCLUSION

For all the reasons set forth above a Writ of Certiorari should issue to

review the judgment sentence, and opinion of the State Court of Appeals Fourth

District. The issues raised are of importance. And of Public interest. Any

denial of Petitioners Writ of Certiorari would only show this court has chosen

not to accept such important issues of the case for review. But does not

express the court view of the merits of the case.

Executed on this

day of

2020.

Gilberto Tello 2182783

Connally Unit

899 F.M. 632

Kenedy, Texas 78119

19

OATH

I, Gilberto Tello, TDCJ 2182783, Do declare under penalty of Perjury that

the above and foregoing contents stated with in this Writ of Certiorari to

be true and correct to the best of my knowledge. And Texas Civil And Practice

and Remedies code. 132.001 thur 132.003. Executed on this 3% day of

2020.

Connally Unit

899 F.M. 632

Kenedy, Texas 78119

!

20

jf