Roberts, William Whittington ( 2014 )

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TO: Texas Court of Criminal Appeals
FROM: William Whittington Roberts (defendant)
DATE: December 15th 2014
IN RE: WR-72-829-04...Original Cause# D-1 -DC-07-206717
MOTION FOR RECONSIDERATION
I hereby request that your court reconsider ground 2 in the habeas Corpus petition.
Judge Kennedy was reported to the Judicial Conduct Committee. She has been
completely bias and unconstitutional throughout the entire proceedings. Ground 2
alleges that the sentence was illegal because it exceeded the 2 year maximum
proscribed by law. She refused to recognize this ground in my habeas corpus petition
and completely ignored the claim in her statement of fact and conclusion of law. I was
never given an indictment and did not have the facts necessary to raise this complaint.
District Court refused to give me the transcripts during my incarceration. Enclosed is a
copy of ground 2 "Illegal sentence".
eDTQOM OBSESSED
PATE: [-5>~ \5>.
RECEIVED IN
C0LWTOFCPI-MIW/)!. APPEAL?
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RECEIVED IN
COURT OF CRIMINAL APPEALS
DEC 30 201%
Abel Acosta, Clerk
Legal Argument 2
Trial Counsel failed to research the law. This allowed the Grand Jury to error by
neglecting to calculate the element of "attempt: and improperly charging Roberts with a
3rd degree felony. The Alleged crime by statutory construction was a state jail Felony.
This defect in the indictment resulted in Roberts doing 5 years longer than the
statutory maximum. The sentence is illegal.
Roberts was charged with attempt to obtain a controlled substance by fraud. Texas
Health and Safety Code art.481.129 a(4)a. The alleged crime by statutory construction
was a state Jail Felony. And by application of Texas Penal Code art. 1501 should have
been calculated as such. art. 15.01(d) states" an offense under this section is one
category lower than the offense attempted and if the offense attempted is a State Jail
felony then the offense is a class A misdemeanor.
The Grand Jury erred by neglecting to calculate the element of attempt and
improperly charged Roberts with a 3rd Degree Felony. Then Trial Court added the
enhancement provisions making it a 2nd degree felony. This defect in the Indictment
effected the proper administration of justice and resulted in Roberts being charged with
an offense that was much more severe than the alleged offense. A State Jail Felony
cannot be enhanced unless their two prior felony convictions. In this case, Roberts only
has one.
1. The indictment Lacks jurisdiction due to the defect in showing the proper offense
2. The sentence is illegal
Texas Code of Criminal Procedures art. 21.19 "Defects of Form" An indictment shall
not be held insufficient nor shall the trial, judgment or other proceeding thereon be
affected by reason of any defect of form which does not prejudice the substantial rights
of the defendant".
Texas Code of Criminal Procedures art. 27.08 "Exception to Substance of Indictment"
"There is no exception to the substance of an indictment or Information except":
4. that it shows upon its face that the court trying the case has no jurisdiction.
Studer v State 799 S.W.2d 263.267 (Tex. Crim. App. 1990) a substance defect is
considered a fundamental error since a charging instrument with such a defect failed to
confer jurisdiction upon the trial court and any conviction had upon that instrument was
void this court has used the term substance defect, fundamental error and fatally
defective interchangeably when addressing errors in charging instruments which lead
to void convictions. @ 268. A substance defect is among other things a failure to
allege an element of an offense in the charging interment.
Ex Parte David Allen Rich AP-75112 (June 7, 2006) "a defect that renders a sentence
void may be raised at anytime" Rich citing Heath V State 817 Sw2d 335.336
"We have held that a sentence that is outside the maximum or minimum range is
unauthorized by law and therefore Illegal". Rich citing mizell. 119 S.W. 3d@ 806.
Ex Parte Robert Thomas Miller 921 S.W.2d 239 (Tex Crim App. 1996) The applicant in
Miller obtained relief because his sentence exceeded the statutory maximum due to a
defect that rendered his sentence Void. The circumstances in Roberts case are almost
Identical. The only difference is Roberts didn't discover the mistake until he was
released on Parole and most of his sentence was completed.
Trial counsel made this error and many others during her tenure of this case.
Counsel's actions blocked the truth and made the trial completely one sided. In the
American Justice System attorneys go through rigorous training and education in order
to learn the law so they can effectively represent a Defendant. Counsel ignorance of
the law and failure to investigate the elements of the offense resulted in Roberts doing
5 years longer than the Statutory maximum for a State Jail Felony. If not for counsels
deficient performance the outcome at trial would have been different.
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