Willie Lee Ockletree v. State ( 2015 )

July 24, 2015
wILijlJS LEE OCKLETREE,
#1906981
ALLxiE^ UNIT/TDCJ-CID
2101 P. Mo 369 Na
IOWA PARK, TEXAS 763^7
JULY 13, 2015
HONORABLE JUSTICES PRESSING,
In The COURT OP APPEALS por The
THIRJ SUPREME JUDICIAL DISTRICT
OP TEXAS At Austin
attnt Jeffrey Do Kyles^ Glerfc
Po 0. BOX 12547
AUSTIN., TE^CAS 78711
In Ret Appeal Cto No* 03-14-00 04 6-CR
WZLLIE LEE OCKLETRKE -y- THE STATE OP TEXAS
CTPELLANT*S COJflaXNJaLj LETTER MM ELEAji^V
*£C£/ved TO Wl'l't—APPELLANTS MOTION TO SUSPENj iD'!£ES:
APPELLANT'S BRiEP ON APPEAL:—Mu MUT10N~"HHl
ML 24 2015 Ml m\l> ALL AVAiLAbLE HMEIfr, BELIEF, BBkjffl&g
ANJ REMONSTRANCE AUTHOBlflRj Bft (MlS fiONOft&BIJE
UDURT OP APPEALS JURISDICTION AND AUTHORITY
AS AUTHOi-UaED ill AdflOHiJ&Mai WiTH THE UNi'i'E^
STAi'ES CONSTITUTION adj ThE STaVE OP TE.JiS—
CONSTiTUTiON AN J ThEiR CiON]rt)ifiliJN(l LAWS...—
Dear Honorable Justices Presiding in the Court Of Appeals for the
Third Supreme Judicial District Of Tgxas at Austin:
GOMES NOW, WILLIE LEE OCKLETREEf #1906981, an Offender, who
is confined in Texas Department of CRiminal Justice- Correctional
institutional Division (TDCJ-CjO») , who is the Appellant in the above
styled and numbered cause, who does make and file this APPELL^T*S
COMBINED LETTER PORM PLEAjINGS, TO WlTt APPELLANTS MOTION TO Site-
PEN^. RULES* APPELLANTS BRIEP ON APPEAL; AN_j MOTION POR MY Mj ALL
AVAILABLE REMEDY, RELIEP, REPRESS, AN^> REMONSTRAN ,E AUTHORISED BY THIS
HONORABLE COURT OP APPEAL'S JURISDICTION ANU AUTHORITY AS AUTHOR!^
IN ACCORjANGB WITH THE UNITED STATES CONSTITUTION Mu THE STATE OP
TEXAS CONSTITUTION Mj THEIR OONPORBfl. NQ LAWS and which is declared,
stated, verified, acknowledged, confirmed, and pled under the penalty
of perjury of the LAWS of the UNITED STATES and THE STATE OP TEXAS
to be true and correct in accordance with and pursuant to the pro-
visions of 28 Uo s<» Co sec» 1746 and the Texas Civil Practice and
Remedies Code, Sections 132a001-132o003 for which my signature and
the date of its execution does confirm the foregoing and pled con
tents of this pleading to be true and correct as fallows*
I.
JURISDICTION.
The Appellant maintains and avers this Honorable Court Of Ap
peals has jurisdiction and authority in accordance with and pursuant
to The Texas Constitution,, Article V» Section 6 and the relevant
applicable provisions of the Texas government Code governoring the
Court Of Appeals for the Third Supreme Judicial District Of Texas
at Austin. Por the Appellant*s timely and proper NOTj.CE OP APPEAL
purports ta give this Honorable Court Of Appeals jurisdiction and
authority in this matter.
However, the Appellant would ask that this Honorable Court
Of Appeal, to: take judicial notice of the Reporters Record Vol* 13,
Page 41 at line 10, the Appellant in his f*pro sew capacity did orally
move the court for a new trial by and through entry an page 41 Lines
10 through 25 as continued on Page 42 Lines 1 through 16o Por in
the instant case this Honorable COURT OP APPEALS must determine if
this cause is properly before the Honorable Court Of Appeals where
the trial court and appointed court apointed attorney did not c-on—
fer with the dismissed trial attorney and/or the Appellant to make
known i f in fact; sufficent error of a constitutional dimension and
magnitude existed to hold hearing and preserve error for appeal.1
As the record is devoid of any ruling r-nd determination made by the
trial court on the Appellant's oral motion for new tr:.al and no
hearing was ever held and conducted©
Still further, where the Appellant is proceeding '"Pro Se"> after
the court appointed attorney on appeal did make an_i file his brief
in accordance and pursuant to the ruling and opinion of the United
Spates Supreme Court in the case of Anders —v- California» 386
He. S. 738» 87 S, Ct» 1396 (1967) ausing the Appellant to invoke
this Honorable Court Of Appeals jurisdiction and authority pursu
ant and in accordance with thr ruling and opinion of the United
States Supreme Court in the case of Haines -v- Kerner. 4u4 U.S. 51Q
-2-
(1972)» For the APPELLANT declares and pleads that he is proceeding
without the adv.se and/or the assistance of one who has been formal
ly trained in the "art" and "science" of the field of law*
IX«
APPELLANT'S MOTION POR THE SUSPENSION OP THE RULES
COMES NOW, the Appellant, who does move this Honorable Court
of Appeals to Suspend he Rules in accordance with and pursuant to
to Texas Rules of Appellate Procedure, Rule 2 which expressly and
impli itedly authorise this Honorable Court of Appeals to suspend
the rules as stated in Rale 2 that reads as follows*
*»»»0n a party's motion or on its own initiative an appel
late court may—to expedite a decision or for other good
cause—suspend a rule's operation In a particular case and order
a different procedure;? but ftfeao a court must not construe this
rule to suspend any provis on in the Code of Criminal Procedure
or to alter the t me for perfecting an appeal in a civil case*.*.*
Por the Appellant does move aba seek to have the relevant and applic
able ruleb .;-;ovemori.^ \ -".O.- •:c:..' oi pleadings,, form of briefs, and the
form of motions; as relevant to the requirements for all when being
made, filed and pled before this Honorable OURT OP APPEALS as being
hereinafter PRAYED foro,
WHEREPORE, PREMISES CONSlJEREJ, the Appellant PRAYS that this
HONORABLE Court of Appeals does suspend any and all rules to allow
this "Pro Se" Appellant to proceed in the instant cause byand through
this APPELLANT*S COMBINED LETT _R FORM PLEADING-«.
AN.U FURTHER, the Appellant Prays that this Honorable Jourt of
Appeals be granted any and all other remedy, redress, relief, and
remaastrance as authorized by law and equity*
III*
APPELLANT'S BRlEF ON APPEAL
A*
IJENTITT OF THE PARTIES
APPELLANT!
1ILLIE LEE OCKLBTREE
TBCJ_CH) #1906981
ALLRED UNIT
2101 Fo Mo 369 No
IOWA PARK, TEXAS' 76367
TRIAL COUNSEL FOR APPELLANT*
MR* JEFFREY Be PARKER
312 Eo CENTRAL AVE.
-3-
P. QDo BOA 660
HELTON, TEXAS 76513
APPELLATE COUNSEL FOR APPELLANT*
Gary E« Pieast
LAV/ OFFICE OP GARY PRUST
1607 Nueces S'to
Austin, TE^S 76513
TRIAL COUNSEL FOR APPELLEE*
SHELLY BAM STRMPLE
STEPHANIE NEWELL
1201 HUET HE>.
P. Oo BOX 540
BELTON, TE7AS 76513
APPELLATE COUNSEL FOR APPELLEE*
Bo"b Odom
1201 Huey Rd«
Po 0, Box 540
BELTON, TEj&S 76513
STATEMENT REGARJING ORAL ARGUMENT
The Appellant, a "Pro. .^e" Litigant, who is currently confined
in Texas Department of Criminal Justice- Correctional Institutional
Diyision. at the Allred Unit, 2101 F. M« 369! N*,, Iowa fark, Texas
76367o For all current and existing law does not mandate and/or
require this Honorable Court of Appeals to issue 'any writ to bring
the Appellant before the Court for arguement,'
V*
STATEMENT OP THE CASE
Appellant was Indicted in two gaunt indictment alleging the.
offenses of injury to a disabled person and aggravated assault wmh
a deadly weapon with an enhan ement paragraph invoking Texas Penal
Code, Section 12o42(d) allowing for punishment raEDge of twenty-five
years to ninety-nine years or life imprisonment, if the allegations
are found to be true upon a conviction of the primary offensea.^o
For the Appellant chose a trial by jury and made and entered his
plea of "not guilty" to the allegation of aggravated assault after
the State chose to abandon the injury to a disabled person* As the
Appellant was found guilty of the primary offense and prior convic
tions having been found to be true by the Jury who imposed punishment
at seventy-five years confinement* A verbal Motion. For New Trial
was made and entered in open court (RR.Pages 41, Line 10 through
d5i 42, Lines 1 through 1.6, Volume 13) o Por the record is absent
-4-
of any ruling and/or hearing on the Appellant's verbal Motion For
New Trialo As the Notice Of Appeal was made an^ filea by the Ap
pellant's court appointed attorney who took no action on the Ap
pellant's verbal MOT,.ON POR NEW TRIAL*
VTo
STATEMENT OF PROCEDURAL HISTORX
The Appellant maintains thath&he rocord shows that an indict
ment was returnea by the Grand Jury of Bell County for the 426th
Judicial District Court on or about May 22, 2013 all eg ng two(2)
counts, to witj Injury To a Disabled Person and Aggravated Assault
w th a Deadly Weapon with allegations of prbr convictions being made
to invoke punishment pursuant to Texas Penal Code, Section 12»42(d)«
It is further shown within the records that the Appellant was
init ally represented by Attorney Randall Scott Magee, who appeared
in open court on or about July 26th, 2013 to establish in the record
tha# J strict Attorney Shelly Dawn Str mple had made and advanced a
ten (10) year plea bargain offer and which the Appellant had prior
to his appearence in open court refused and further refused in the
course of the Plea Offer Hearing* Which a subsequent hear ng and ap
pear en-e by Attorney Magee was maae on or about August 19, 2013 when he
appeared and pled Motion Por PR Bond that resultea in adverse ruling*
As Attorney Randall Scott Magee appearea in open court one more time
in the instant cause to advance a MOTION TO WITH ^RkW AS COUSEL that
was docketed and heard an September 24, 2013 when the Appellant did
then proceed in the case as his own attorney (Pro Se) with standby
appointed cousel, namely; Attorney Jefferey David Parker*
The Appellant acting as his own attorney with stanaby counsel,
namely; Attorney Jeffrey David Parker did participate in hearing
held on October 15, 2013 for hearing of Pretrial Motions which the
Appellant had filed* Por the result of this he; r'.ng cause the Hon
orable Fancy H, Jezek, Judge Presiding in the 426th Judicial Dist
rict Court to appoint standby attorney to proceed as the Appellant's
trial attorney; who would proceed as defense attorney in the trial
on merits and all other Pretrial Proceedings helu subsequent to the
$&§ October 15, 2013 proceedings* As the January 3, 2014 Pretrial
Motion Proceedings Attorney Jeffrey David Parker placed into record
-5-
that the Bell County District Attorney had advanced a pleabargain
offer prev ously dur ng July z2f 2013 heaEing that the Appellant had
then and would dur ng the pretrial hearing reject* And further, the
hearing would show and document the Appellant's dissatisfaction with
his attorney's representation*
The Appellant's trial proceedings began on January 6,. 2014 and
Attorney Jeffrey David Parker appeared as the Appellant's attorney
of record where he waived opening statements ana refused and failed
to embrace the "voir dire examination" with active participation of
zealous manner* For this is of relevance and import where the victim
as alleged in the indictment was of the White Race an_. the aecuaed/ap
pellait was of the BlaGk Race* As the lack of active participation
compromised preservation of error relevant to the unauthorised, un-
iawul, and unconstitutuional use of the capacity of employment and
its authority as an Ass:stant District Attorney, namely; Honorable
SHELLY STRIMPLE, who engage, in a systematic ustom an. practice of
ex luding eligible jurrors from the panel*
With the jwyyhaving been selected for the Appellant's tr al and
hav ng been sworn n the Appellant's trial began an.. Count One of the
indictment was abandonees an jproceeded to trial on Count Two that al
leged aggravated assault with a deadly weapon where the State aavanced
open ng arguement and Appellant's counsel reserved the right to ad-
van e arguement prior to the Defense presenting evidence after the
rest ng of the State* For the State proceeding w'.th presenting its
ase by and through witness test mony and exhib ts be ng offered ana
entered into evidence purporting to support the prmof of the allegat
ions set forth in the indictment* And after the State re:ted there
was a haaring held on recora in absence of the judge regarding the
Appellant having been adviseu not to test fy as the advee of his
Attorney Jeffrey David Parker was not to testify as he, Attorney Park
er stated, n..*Well, if there'? —if there's any doubt, I'll tell you
right now, unequivocally, c^early without any question, I am telling
you that it is my professional advice you not testify in this caseo..o"'
For Attorney Parker did not make or give any statement or arguement
and the Appellant on record waived his right to testify believing the
advice of h'.s attorney that the evidence was insufficent to find guilt
beyond a reasonable doubt*
The S-fcate and Defense both having rest ea the jury was removeo
—6— a?
and in recess as the State ant. the Defense wijfch the Court prepared
the eharge on "guilt or innocence*
The preparation of the charge was completed where the Court
ordered he return of the jury and each jurror was given a copy to
follow along as the charge of the court was administered to the
jury* Por the Defense was allowed to present its closing arguement
of which Attorney Jeffrey David Parker avered that there was evidence
that the Appellant had admitted possesihg a knife an:: having thrown
it away* Which the Appellant's attorney failed to .nform the jury
that the Appellant had remained in custody from March 12, 2013 to
the very point ana time making any avertment as having been pur
portedly made to support the elements of the indictment could not
ana should not be substantiated when his restraint would not allow
for hjm to throw away a knife* As the itate did make and give its
losing arguement of which upon completion the jury went to the jury
room for deliberation* The ^e^j"^eration of the jury resulted in the
"^im ell ant being found guilty as charged in the indictment*
Because the AvT)ellant had chosen the jury to impose sentence,
the jury was read the enhancement as set forth in the S"g's No
tice of Sn"ncg^gflt setting forth allegations of the Appellant hav
ing been previously convicted to impose punishment pursuant to the
T"s- Penal Code, Se tion 12*42(d)* The Appellant maae and entered
his plea of "not true" and the Stete proceeded with presenting evidence
to prove the prj©r convictions. Por he Appellant took the stand ana was
questioned by the State and Defense, as to informaion relevant to the
Ap --si i' .0-;» r past* The chrrpe o.-~ nrrirh. '•:.^J' - r. •'•::-<::. o .• - v,i\ -r:ae
r' rea to the jury who retired an returnee w-th a finding of the
Appellant hav ng been previously convicted and a punishment of seventy-
five (75) years was imposed*, as a result of proceedings having been
held in open Court on January 7th and 8th, 2014*
VI*
GROUII-jS FOR REVIEW
WITH ARGUMENTS'
1* GROUND POR REVIE; NUMBER ONE WiTH ARGUEMENT
APPELLANT CONTENDS Ml, COMPLAINS THAT HIS R GHT TO REASONABLY
EFFECTIVE ASSISTANCE OP COUNSEL ON THE FIRST APPEAL HAS BEEN jMIEj
-lN VIOLATION OF RIGHT - UNDER U* S. CONSTITUTION, SdCZTH AMENDMENT.
-7-
ARGUMENT AN J AUTHORITIES
The Appellant contends and complains that he was not afforded
the minimum of reasonable effective assistance of counsel during a
critical stage of Sfche criminal process and procedure, to witj on
the first appeal* For it is a matter of the record that Attorney
GARY B* Prust » as appointed by the court for purpose of making
and filing of a written Motion For New Trial and seeing that the
same was docketed for hearing pr or to hav.ng ma e and filed Notice
Of Appeal whereas the Appellant had made an oral Motion For New Trial
which the trial court did not otherwise make: any ruling thereon* As
the rulings and decisions of the United States Supreme Court in the
case of Strickland -v- WASHINGTON, 466 U*S* 668 (1984) and those
of its genre. As the mere fact that the court appointed attorney
did make and f'le an appeal brief purportedly in accordance with and
pursuant to ANjERS -v- CALIFORNIA, 386 U«S. 738 (1967)*
Aceordingly^ if the appointed counsel had adhered and conformed
to the fundamentals of h: s s hooling and tra n ng he would have in
vestigated and made Trnown to himself that the trial counsel was of
opinion and belief that the eviden e as proffered and entered into
the trial records failed to subsfeniate an., support a finding of
"•guilty as charged in the ixiGict.^nt*:: ih.ich in spite of this be-
I'.ef and op\on as set forth in the trial records- at VOLUME 3L0, PAGE
57 through £9 as relevant to Attorney Parker ma-ing this a part of
the records* Yet, he Attorney Parser did not make a formal motion
to the Court for a directed verdict of acquital explaining his po
sition and preserving error thereon*
Still further, where the re ord at Volume 13, Page 41 ana Page
42, the Appellant makes and enters into the record an Oral Motion Por
New Trial which under the ircumstances where the Court allowed for
the trial attorney to be allowed to withdraw. And because the Ap
pellant for 1he Brief moment did not and does not have an attorney
and hi s oral motion was even acknowledged y the Court the refusal ana
failure of the appo nted attorney t> make and f'le a Motion Por New
trial where substantaial error had occured during the punishment
part of the trial where the records and documents used for purpose
of enhancement would not ana does not show the Appellant to have
-8-
twice convicted in accordance and pursuant to Texas penal -Jode,
Section 12*42(d)* Por if the State's Attorney snd/or the Appellants
trial counsel had investigated they would have found that the Appel
lant's 1991 purported onvi ton was in fact voidable and unavailable
for use a? an enhancement where is was void ab jf0$&*ri>i$p-^ "^e st
ate's proof of the Appellant's enhan ements is both actually ana fa t-
ually insufficent* Yet, from the outset vhea the Appellant made an
attempt to bring to the at tent on of ihe Court by and through an inart-
fully pled Motion To Quash that neither the State's Attorney and/or
the Oourt timely addressee! the error where any corre tion of the
faulty prior allegat ons should haze been made timely and properly
before trial* For this would have removed the element of surprise
on part of Ihe Appellant's trial ounsel who did not and does not
know the prior convictions are in fa t all three are voidable and
were allowed to be used w thout any object.on on his part* the trial
attorney*
In 'Onclusion, the Appellant mainta ns and avers that he was not
and has not been afforded the minimum of reasonably effective assist
ance of counsel, on appeal when the appointed appeal attorney refused
and fa led to make a reasonable and dilligent investigation to see
if there was either a verbal and/or written Motion Por New Tr al that
was made nd entered into the record that had been timely and'properly
done within ten days of the entry of the judgement and sentence* Aa
this fa t and the failure of the appo nted appeal attorney to brief the
fa t that no rul ng had been made deny ng the Motion For New ffrial
the Anders Br ef as now before the Honorable Court of Appeals con
stitutes ineffe t ve assistance of ounsel. As the Honorable Court
Of Appeal does not have jurisdiction*
2Q.GR0UNJ POR REVIEW NUMBER TWO WITH ARGUEM^dT
APPELLANT CONTENDS AN j COMPLAINS THAT THE EVIDENCE AS UdE.J
AN, RELiED UPON THE SUPPORT IHE APPELLANT'S CONVICT ON FOR A©SE6G£&TEIi
AS cAULT W TH A dEAjLY WEAPON IS ACTUALLY 'NSUFFICENT DENY NG THE
APPELLANT IE:5 HI GHT TO A FAIR AM . IMPARTIAL TRIAL UII^ER THE U» S. CON
STITUTION, AMENDMENT SIXTH,
-9-
ARGUEMENT AMj AUTHORITIES
The Appellant ma ntains ana contends that the United States
Constitution, Sixth Amendment mandates that the evidence in the
review of actual insuffiency under the Unite. State.:, iupreme
Court's ruling aniff opinion in Jackson -v- Virginia, 443 UoS* 30?
(1979) requiring "no rational trier of fa-tcould /find/ proof of
guilt beyond reasonable doubt.,!, For in the instant case if not for
the direct and indirect bias for reason of race and gender, the evi
dence as heard and considered merely showed and represented that
an the early morning of March 12, 2013 a 911 telephone -all had
been made by someone at the address of a residence lo ated on Houston
Street, in "illeen, Texas* A? well as, having shown that Debbie Sweet
and: the appellant both were at the house*
v5till further, the trial on merit found in Volume 9 through 11
onstituted an accumalation of fa-ts proffered by the "ftate by and
through witnesses that had been ailed to purportedly show the com-
miss on of Aggravated Assault with a Deadly weapon as having been
alleged in the indictment. For the deadly weapon, to wit; a l.nife
as shown and exhibited? as well as, having been entered into evidence
were not shown to have been ever used and/or exhibite. by the Appellant
at any time on the morning of March 12, 2013o As the testimony of
the itate's witness in hief, the victim, namely; Debbie dweet in
forms that two knives were found ex xx..- x x Police* ^nu
neither of the two does Debbie tweet icent fy the Appellant as hav
ing possesed and used them at the time of the alleged threat and pur
ported deadly weapon possession and use to substant ate commission
of the offense* as she Debbie Sweet repeatedly gave testimony if true
that oantradic-ted the required and needed showing*
Even further, the utter inability of DEbbLe Sweet to be able to
identify whi h one of the two knives she turned over to the Police
was the actual -weapon raises question of doubt* For the inability
of the Police to find either of the two knives found oy the victim
Jebbie Sweet raises a serious question of fact as to was there a
nife or knives involved at all? As the shoddy Police work in hav
ing failed to have the victim examined by medical personel to remove
any doubt that the victim had in fact been subject to an assault thst
gave rise for the Appellant to be jailed on March 12, 2013* Which
-10-
further there is no one other than Jebbie dweet asseting that the
Appellant had made a threat by stnt'i^g uBitch Ifm going to kill youl*
As she, Debbie Sweet, further during the course of her testimony st
ated contradiction as to the Appellant's location and whereabouts
vdien the stated threat was made by the Appellant an.- of which Debbie
Sweet did not and could not give relevant factual account consist
ent with the initial staement made and given to Police Officer who
took the written statement ma-ing the same the basis of probable
cause for the Appellant's arrest*
In total and conclusion the entire purported support at ive test
imony by all witnesses proffered by .the State gives- rise to no mare
than a small piece of eviden e that does not meet the requirements
of Jackson -v- Virginia* 443 U.S* 307 (1979) thereby denying the
Appellant his r ght to a fair and impartial trial as required by the
U* S^> Constitution, Sixth Amendment which requires that evidence be
sufficent. For the Appellant is entitled to reversal and entry of
accmital pursuant to the Burks -v- U*So, 437 UoS* 1 (1978)* '
3. GROUN-J POR REVIEW NUMBER THREE WITH ARGUEIuENT
APPELLANT CONTENDS AN,J COMPLAINS THAT THE EVIDEN ,E AS UdE^
ALT REL Ej UPON TO SUPPORT THE APPELLANT'S CONVICTiON FOR AGGRAVATE^
ASSAult W:TH A DEADLY WEAPON IS FACTUALLY INSUFPI ENT DENYING THE
APPELLANT TO HIS RIGHT TO A PA R W.j IMPARTIAL TR AL UNjR THE U, S* CON
STITUTION, SIXTH AMENDMENT,,
ARGUEiildT Ada AUTHORITIES
The Appellant without reiterating of subject matter of the
previous Ground Fogy Review, the Appellant does now advance and plead
his fa tual suffieney complaint relying on the ruling of the Texas
Court of Criminal Appeals which the Court's rul .ng and opinion in
0lewis -v- abate, 922 S.W.2d 126 (1996 Tx, Ct* Cr* App») Is relevant
and applicable in the instant ;ase where the factual suffienoy does
not warrant and support a find ng as returned by the jury where the
evidence does not connect the Appellant to the possession and. use of
a knife and/or ,rn ves proffered an.- entered into evidence by the 'rtate
as having been found and turned in to the Police by the victim and
State's hief witness whose factual account does not fully and ac
curately support the allegations ana findings made by the jury.
Accordingly, where jebb e Sweet's testimonial account repeatedly
-11-
contradicts r-jic fs 5I to xvx;ort and substantiate the allegations
made in the indictment* Por the Texas Court of Criminal Appeals has
ruled and determined that factual insuffiency violates the U* S* Con
stitution, Amendment Six* Clewis -v- State, 922 Sw2d 126 (1996 Tx*
Cto Cr. App«)
Because the trial on merits as found in Volumes 9, 10, and
11 does not fa tually support a finding of "Guilty as Charged in
the Indictment" the Appellant see 3 this Honorable aurt of Appeals
to reverse and acquit*
4* GRO'UNd POR REVIEW NUMBER FOUR WITH ARGUEMENuj
APPELLANT CONTENDS Adx COMPLAINS THAT THE ^TATE COMMITTED
PREJUDICIAL AND HARMFUL ERROR WHEN THE NOTICE FOR ENHANCE MENT
JjBj FAIL TO G VE THE APPELLANT NOTI E OF WHAT HE WAS TO DEFEND
DURING THE PUNISHMENT PHASE OF THE TRIAL*
ARGUEMENT AMD AUTHORITIES
The Appellant does contend and complain that the State's
NOTICE OF INTENT TO SEEK ENHANCEMENT PUNISHMENT does fail to give
the Appellant proper and t mely notioe* Por the entire Notice as
having been read by Stpte's Attorney Strimple was read into the re
cord and to the jury and Court* (See: Volume 12, Pages 6, Lines
21-25; Page 7, Lines 1-25; Page 8, L nes 1.-11) For the subject mat
ter and antent will tend to show the complaint as having been made
by the Appellant in his MOTION TO QUASH THE INDlGTiviENT was honored
by purportedly making needed correction to substance of the Enhance
ment Paragraphs that had aleged wrong information regarding purported
prior convictions* As the Noti e as read and given into, record to
the Jury ano. Cour alleges that the Appellant on trial for the Offense
of theft when in fact the Appellant had been tried and convicted of
Aggravated Assault with a deadly Weapon, to wit; a knife*
Because this allegation and reading by the State creates a fatal
variance tfiat subjects the Appellant to prejudice and harm when the
Court's Jury Charge On Punishment as having been read ano. given to the
jury shown in Volume 13, PAGE 5, LINES 22-25; Page 6, LINES 1-25;
Pages 7-13, LINES 1-25; Page 14, Lines 1-5 set fijrth the Charge which
does not track the reading of the State's Notice*
Accordingly, the Appellant is of belief that the State*s
Attorney has violated the Appellant's rights as defined by the
U« So Constitution, Amendment Pive expressly mandating that the
App ell at, a person, should not be held to answer fot? a apitol, or
otherwise Infamous crime, unless upon presentment or indictment of
a Grand Jury* Por the State* s Attorney having abandoned the allega
tion stated in the indictment and proceeded on the Notice that now
fails to; track the jury charge which the Appellant contends and
maintains that the rul ng and op n on of ihe United States Supreme
Court in the case of WOLPP -v- MoDONNELL, 418 U*s7 539 (1974) gives
forth relevant and applicable diction to support the Appellant's,
contention and complaint of violation of his rights by the acts,
a ti ons, omiasi ons, and atherwi s e condu t of the St at e* s A11 orney*
The Appellant seeks that this Courbt; grant and order the Appel
lant's enhan emen to: be null, and void w thout any effect; with remand-
ment for imposit on of new punishment within the range of what the
off e ns e man d at e s •
5* GROUND POR REVIEW NUMBER P2VU WITH ARGUEMENT
APPELLANT CONTENDS AND COMPLAINS THAT THE STATE'S ATTORNEY
PA LED TO PROPERLY PROVE THE APPELLANT'S PRIOR CONVICTIONS POR
PURPOSE OP ENHANCEMENT*
ARGUEMENT APT J AUTHORITIES
The Appellant contends and complains that the State*s Attorney
in the course of purporting to profgr evidence and proof of the
Appellant's pr or convict ons for purpose of enhancement the records
and documents as proffered and used does fail to affirmatively show
proper certification as required by Lan^ston -v— State, 776 Sw2d
586r 587 (Txo Cr* App* 1989) and Banks -v- State, 158 Sw3d 6@§, &$Z
(Tx* App—Eoiaston. /I4th$ist*/ 2005) 0
Po.r this reason the Appellant seeks the enhancement to be ruled
null and void andorder a reversal! and remand for purpose of senten-
ing.
6* GROUND POR REVIEW NUMBER SIX W TH ARGUEEENT
APPELLANT CONTENTS' AN,, COMPLAINS THAT THE EVIDENCE ON PROOP OP
ENHANCEMENT IS INfSUPPICEKTT AS WHERE THE JUDGEMENTS M.j SENTENCES-
ARE VOID*
ARGUEMENT AN i AuTHORITIES
The Appellant contends and complains that the eviden e used
and relied upon by the State's Attorey is legally insuffi ent to
support imposition of enhancement as allegd in the Notice* Por
the State's Attorney* s use of multiple means to otherwise show and
support the commission and conviction of prior convictions where
the jdgements and sent en es upon their face show and support the
judgements, sensnces,, and convictions to be null and void* As the
rul. ng of &fee Tpxas Court of Grim nal Appeals in the case of PLOWERS
-v- STATE, 220 S'w3d 919,. 921 (Tx. Cr* App* 2007) identifies numerous
ways to prove a prior conviction of which in this case a combination
of them all was used*
However, the Appellant is of the position where the priors are
void up on theeir face the proof must not be sustained* Por not even
the Appellant* s own testimony will support any enhancement when the
prior convictions are ' ontrary and in violation of the United States
Constitution* Sixth Amendment*
And for this reason the Appellant request reversal and remand
for resent en ing in ac ordance with the law*.
7c, GROUND POR REVIEW NUMBER SEVEN WITH ARGUEMENT
APPELLMT CONTENDS AND COMPLAIN J THAT HIS' TRIAL ATTORNEY
WAS INEFPECTXVE IN A CRITICAL PORTION OP THE APPELLANT* S CRIMINAL
TRIAL, TO WIT; VOIR DIRE*
ARGUEMENT MP AUTHQRITl'I!
The Appellant maintains and avers that he was not afforded the
minimum og reasonable effective assistance, of Qounsel by his trial
counsel who refused and.fa^ed to participate in an a0tive zealous
manner during voir dire* Por the Appellant, a Black Defendant, whose
victim was a White Pemale and this fact alone should have alerted
h m that his participation would be required and needed to comply
with the mandae of he U, Sr. Supreme .Court in the case of Strickland
-v- Washington» 466 U*S*. 668 (1984)»
Because the Appellant's trial counsel dud refuse and fail to
partic pate in the voir dire exam nat on the Appellant wad prej'udi :-ed
when memers of iie jury whose prejudices and biaas for reason of race
and gender were not dis avered and effectively denied the Appellant
^14-
a fair and impartial trial*
Accordingly, the Appellant seeks to have his case reversed and
remanded for a ne trial where the trial counsel*s refusal to render
the m nimum of reasonable effective ass stanee of counsel inflicted
prejudice and harm in his trial attributing and c°n^r:Lbu-ting to the
Appellant*s judgement and conviction*
PRAYER
WHEREFORE,, PREMISES OP THIS LETTER PORM BBIEB HAVING COMB
REGULAR before this HONORABLE COURT OP APPEALS,, the Appellant
does PSAY that this COURT GRANT the Relief as sought and request
for each Ground Por Review as the Appellant may be entitled*
Ad further, the Appellant does PRAY that this Honorable Court
Of Appeals does grant and ORDER any a.nd all otherrelief that ihe
Court is authorised under both LAV/ and EQUITY*, as the Appellant does
hereinafter affix Ms s gnature here nafter on this date of July 13*
2015 declaring,; confirming,; verifying, and pleading under the penalty
of perjury this Brief s true and correct*
Respectfully submitted,
APPELLANT, PRO SE '
ALLRED UNIT/TDCJ-CIB
2101 P* Iff; 369 N*
Iowa Park, Tx 76367
MOTION POR MY AN.; ALL AVAILABLE JuJMluJg* WttfiTKff,
idSjJKEsS, aNd RMlQNaTRANjE AUTHuRi&El> Bff 'M,.S HoI'TOR-
AbLE COURT OP JspPJftsLS* JURlSDICT ON AN..- AUHOR TY as AUTHOR
ISE^ IN gUJjuJtu&Ncjii WITH THis UIMjTEd b'MKs CONaiL TUTION
iJNjj.TiiE ZSJCAa CON^TrTUor"ON aNTTDBEIR CONPOiMflG LAwS—
AppeaMS Mfir^ie^lit^a M^F^ai! M?£Hi MSuyf
relief, redress aniremonstrance to whi h this Appellant may be
entitled to under law and equity that-may e found in the records
of this cause*
YZHSHJKiJ'ORE, PREMISES CONSIDERED, Appellant prays for any and
all remedy, redress, relief, andremonstran e that may be authorized by
law and equity* Respectfully submitted*
APPELLANT /MOVANT, Pro Se
ALLRED UNIT/TdCJ-CID
2101 P„M. 369 N.
iov/a park;, tx 76367
-1.5-
CERT, PICATa OF biSRVlCE
I, WILLIE LEI OCKLETREE, #19069.81, the Appellant in the fore-
going LETT JR iORM PLEADING who does declare, state, verify, certify,
confirm ana plead that 1 have aerved a true and correct copy of this
LETTER POM PLEA :. NG by placing the same in a postae prepaid envelope
ana depositing the same in Allreu Unit Mail Box to be subsequently
picked up by Allred Unit Mail Room Personel for lagging in the out
go ng legal mail and to be subsequently deposited n the U* S* Postal
Service for subsequent delivery as hereinafter set forth, to wits
MR* GARY S. P1EHST
LAW OPP"7" "E OP GARY E* PRUS'T
1607 NUiuCSS STREET
AUoT N, TEXiit 78701
MR* BOB Do OjOM,
AJSISTANT DISTRICT ATTORNEY
Po 0. BO^ 540
BELTON, TEXAS 76513
This be ng a true and correct service which I declare, -onfirm,
state, verify, certify, ana plead under the penalty of perjury of the
lpws of the United States ana The ^tate of Texas pursuant to the pro-
vis ons of 28 U* S. G. s6q0 1746 and Tx* Civ. Praco & Rem* Code, Sec-
t on 132.001-132*003 by here nafter affix ng my s gnature on this
date of July 13, 2015 confirming th s to be a true ana correct act
of service*
WILLIE LEHl 0W±mxsMf #1906S
^•1906981
APPELLANT, PRO S'E
ALLRED UDIIT/TDCJ-Clii
2101 P.M. 369 Ho
IOWA PARK, TJC 76367
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