Maurice Samuel Arrington v. State ( 2015 )

May 21, 2015
NO.03-13-00066-CR
MAURICE SAMUEL ARRINGTON § IN THE COURT OF APPEALS
V. § THIRD DISTRICT OF TEXAS
THE STATE OF TEXAS § AUSTIN, TEXAS
APPELLANT'S MOTION FOR REHEARING
Appellant Maurice samuel Arrington moves this Court for a
rehearing of its opinion and judgment issued on March 5, 2015.
ISSUES PRESENTED
I. Ineffective assistance of counsel
II. Abuse of discretion by the trial court
III. "NOTE" Appellant has other issues presented in the
original appeal brief, not to be neglected but due to deadline
and appellant's loss of original brief by US Marshals during a
Federal bench warrant; Appellant will file what is available and
pray that this Court reviews the brief in full.
REASON FOR REHEARING
Although this Court affirmed the trial court's conviction,
Appellant believes this court erred. According to case law, Texas
Law, United States law, and the Constitution; Appellant's rights
have been violated.
/ RECEIVED\
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MAY 2 12015
THIRD COURT OF APPEALS,
V JEFFREY D.KYLE /
Opinion - Issue Number one
The reasoning of this Court is not understood by the
Appellant as being determinative on the grounds of Federal, State
and case law, including case law from this Court's own Justices,
all of which say differently.
In Serrano v. State. 123 S.W.3d 53, the Court of Appeals of
Texas, Austin, reversed and remanded this case because the
affidavit contained insufficient evidence.
Serrano is very similar to Appellant's argument as far as
the evidence aspect of the case. Granted, there was no motion
ever filed by Appellant's court appointed attorney to suppress
the evidence due to lack of evidence. See: Lowerv v. State, 843
S.W.2d 136.
In Appellant's case alike Serrano, the affidavit alleges,
'There was a reliable informer.' The affiant relied heavily upon
a unidentified confidential informant. A mere conclusory
statement gives the magistrate virtually no basis at all for
making a judgment regarding probable cause. [I]ts actions cannot
be a mere ratification of the bare conclusions of others. Gates.
462 U.S. at 239, 103 S. Ct. 2317
What appellant is arguing is; there was no substantial basis
for crediting the informant's hearsay statement. Officers failed
to corroborate the informant's tip except to confirm appellee's
parked vehicle. The affidavit does not state the statement was
against penal interest, nor repeated by other informants. There
was no accurate prediction of future behavior. This tip was
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alleged to be a first-hand observation, but it contained no
particular level of detail regarding appellant's premises or his
criminal activity. See: State v. Duarte. 389 S.W.3d 399
Appellant's counsel should have immediately attacked the
sufficiency of the affidavit by filing a motion to suppress the
evidence due to the lack of evidence thereof. Even if the trial
court did not agree it would have preserved the error for later
review on appeal .
This was a costly error by defense counsel on Appellant's
behalf. This violates Appellant's fourth amendment right to be
free from unreasonable searches and seizures, and Appellant's
sixth amendment right to counsel. See: Strickland. 466 U.S. 668
The right to counsel is the right to the effective
assistance of counsel. Counsel can deprive a defendant of the
right to effective assistance of counsel simply by failing to
render adequate legal assistance. Crim. Law § 46.4, citing
Strickl and.
NOTE: Several other entries of ineffective assistance are
noted in the original appeal brief including:
A. Failure to file proper motions
B. Failure to object to inadmissible evidence
C. Bringing up defendant's criminal history in trial
D. Failure to produce an adversarial closing argument
On this ineffective claim appellant is requesting a new
trial, suppressing the evidence from the search warrant which was
obtained without probable cause.
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Issue Number Two:
The trial court abused its discretion by denying appellant
his sixth amendment right to face his accuser.
Defendant filed motions to disclose informant(s) and motion
for discovery. Both with hopes the trial court would grant the
disclosure in order for defense to properly authenticate the
officer/affiant's claims of an informant, and/or to properly
prepare for trial .
Defenses intent upon receiving this information would have
been:
a). To determine if there truly was an informant;
b). To determine if informer was able to identify appellant;
c). To determine if un-named informer was ever inside residence, and
if so, when;
d). To determine when this information was given to officer/affiant;
e). To determine if officer/affiant and un-named informer were both
pointing the finger at the same person;
f). To determine if officer/affiant and informer's allegations match.
Rule 508(c)(2) states that once evidence is presented
showing the informer may provide testimony necessary to a fair
trial determination of guilt, and the state invokes the informer's
privilege, the judge ^shal1] give the public entity a chance to
show in camera whether the informer can, in fact, supply that
testimony.
Since the defendant may not actually know the nature of the
informer's testimony, however, he/she should only be required to
make a plausible showing of how the informer's information may be
important. See: U.S. v. Valenzuela-Bernal. 458 U.S. 858, 102 S. Ct.
3440.
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The trial court upon determination not to reveal the
identity of the un-named informant should have held an in-camera
review to determine whether or not un-named informer's testimony
was necessary to the fair determination of guilt, (Bodin v.
State. 807 S.W.2d 323), especially since without the officer/
affiant's "confidential informer". There were no other officers,
nor informants that could corroborate officer/affiant's
allegations.
Under Rule 508(c)(2), it was the trial judge's duty to give
the public entity a chance to show in camera whether the informer
can, in fact, supply that testimony. By this procedure not being
followed, it violated appellant's due process causing an unfair
trial in which appellant was not able to face and interrogate the
state's only witness that allegedly could say that he/she
actually saw appellant commit a crime against the State of Texas.
Especially since officer/affiant has no records of his own of an
independent police investigation.
There was sufficient information presented to show that the
un-named informer could give testimony necessary to a fair
determination of guilt. State's evidence showed that un-named
informer told police appellant was in possession of drugs, was
selling drugs, and that informer was inside residence with
appellant. Police used information from un-named informer to
procure a search warrant, which when executed, led to the
discovery of cocaine and appellant was charged with possession.
See: Bodin. supra.
Appellant argues that the court abused its discretion by
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denying appellant the right to cross-examine the State's only
real witness. Before the execution of the search warrant, there
was no evidence that appellant ever committed a crime against the
State of Texas, [except] the allegations of the un-named
informant. There was no independent investigation notated in the
affidavit itself nor presented in trial. Furthermore, there is no
mention that officer/affiant knew appellant personally.
Therefore, the officer/affiant himself only became a witness
after the execution of the search warrant along with the other
officer/witnesses that testified at trial, as to any information
about the case. [Except] for the allegations of the un-named
informer.
By the court not disclosing the un-named informer, appellant
was deprived of a fair trial and more so the opportunity to
disclose if the officer/affiant and informant's information was
corroborated. Also the court failed to hold an in-camera review
in which it was the court's duty to do so upon denying
appellant's motion to disclose informer. This violates
appellant's constitutional rights of due process, and assistance
of counsel .
In order to claim a privilege not to disclose the identity
of the informant, the State [must] present (in camera if
necessary) facts which demonstrate that the identity is not
necessary for a fair determination of the charge. Tex.R.Evid. 508
See: Larv. 15 S.W.3d 581.
Appellant request, due to fourth, sixth, and fourteenth
constitutional amendment violations of due process, assistance of
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counsel, unreasonable searches and seizures, and the
confrontation clause, that this Appeal Court grant appellant a
new trial favoring appellant's issues presented.
CONCLUSION
With these two issues alone Appellant strongly believes that
the Court of Appeals will agree that had Appellant's counsel, and
the trial court acted within the guidelines of the laws of Texas
and the U.S. Constitution, there is a very good chance that the
out-come of Appellant's case would have been different.
PRAYER
Appellant Maurice Samuel Arrington, accordingly prays that
this Court grant him a rehearing in the above styled and numbered
cause, find that his attorney Jon Jon McDurmitt was ineffective,
that the trial court abused its discretion and any other issues
in Appellant's original brief that the Appeals Court finds to be
a violation of Appellant's rights, and grant him a new trial.
Respectfully Submitted,
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