Whiddon, James Alan ( 2015 )

g>2Lqq3-01
•• ,,. RECEIVED. IN
WR-82,993-01 COURT OF CRIMINAL APPEALS
) IN THE TEXAS COURT OF CRIMINAL APPEALS
Tr.Ct.No.04-08-13776-A-BCCR !MAR 25 2015
I
EX PARTE JAMES ALLEN WHIDDON, Appli~ant
APPLICANT'S MOTION FOR APPOINTMENT OF NEW APPEAL COUNSEL
TO CONDUCT REHEARING AND/OR:PDR OF DIRECT APPEAL AFFIRMANCE
iAFTER A GRANT OF OUT OF TIME APPEAL RELIEF BASED ON THE
) TRIAL COURT'S CONCLUSIONS APPLICANT RECEIVED INEFFECT-
/ IVE ASSISTANCE OF COUNSEL BY FAILING TO NOTI~Y.HIM
OF HIS ~OSTiAFFIRMANCE PROCEDURAL RIGH~S TO,REVIEW
!
:This is an Article 11.07 proceeding seeking to reinstate the
dir~ct appeal timetable back to February ),2007, the date the.
Wac<;> ·Court of Appeals issued- it's affirmance in 'this case', '·for
the, purpose of presenting a motion for rehearing there, and if
nec~ssary a petition for discretionary review in this Court. See,
Application,6. Applicant argued in the trial court belo~ that
because of appointed appeal counsel Mr. Walker'~ in~ffective assis-
tance of counsel, a direct appeal miscarriage of j~stice occurred:
."[T]I)e court of appeals held Whiddon 'drove his truck toward the
trooper' and 'Whiddon would have hit the trooper if the trooper
had not moved out of the way;. and that Whiddon veered away only
after the trooper shot out one of Whiddon's tires.' Whiddon v.
State,2007 Tex.App.LEXIS 916 at *3(Tex.App.-Waco 2007 no pet).
----~Whiddon drove.toward the trooper, and failed to hit the troop-
er only because the trooper moved and shot out Whiddon's tire.'
id. at *4. A brief review of the trial court record reveals the
record does not.support t~ese three conc~usions .••
In ·the Defense's exhibits, there is a drawing by the State's
accident reconstruction team of the path of appellant's vehicle •••
which does not leave the roadway when passing the trooper.who
is standing off the side of the :coad .•.. this alone is insuffic-
ient evidence of threatening a public servant by driving a vehicle
directly. at [the trooper] ••.
Additionally; .in the State's exhibits, there are several
photogr~phs of Whiddon's tire that was damaged by the trooper's
shooting at it. The damage is mostly confined to only the aluminum
wheel's center.· ~·· these photographs show Whiddon's tire is NOT
'shot out'. Indeed, a brief review of trial transcripts reveals
that after ·Whiddon passed the trooper the police pursuit of his
vehicle continued for miles and miles into the next county at
rates of speed up to 100 mph.
Had appointed appeal counsel not forfieted Applicant Whiddon's
procedural rights •.• , [he] would have obviously pursued a motion
for rehearing and/or petition for discretionary review, in order
to correct the court of appeals' fatally flawed factual findings
and legal analysis as a f~ndamental miscarriage of justice
in the instant case [seeking] to get the Waco Court of Appeals
February 7,2007 opinion vacated or withdrawn, and a new control-
ling op1n1on vindicating .him on a proper legal!Y, insufficient
evidence analysis.
II MO'f~OINI uiEINI ~lED
DATE: 5·- 8--f S"
laY: p C.·
See, Appl's Resp' .. of Jan.l6th:;,2015 .... ,2-3(Applicant's legal arguments).
I
·Applicant further argues in this Court that the record shows
his trial judge specifically held as fact that he di~ not believe
Applicant drove · towards the ·trooper named in the indictment, but
was a[lowing the case to proceed because in his opinion Applicant's
driving around a roadblock before pass in~ .the· named trooper was
su~ficient to support th~ conviction, which would seem to be an
unlawfuly conclusion.
~pplicant requests this Court order the trial court to appoint
a new appeal counsel to facilitate a meaningful presentation of
these issues to the Waco Court of Appeals, on motion for rehearing
and if necessary on petition for discretionary review ~o this
Court, because under Tex.R.App.P.47.1,4g.l``.68 his appeal ~rights.
ar~ .not yet exhausted, for the "good cause [a]s entered on the
red~rd",. Tex.Code Crim.Proc.Ann.art.26.04(j)(2)(Vern.Supp.2009),
of being deni~d a meaningful appeal by ineffec\tive assistance[n.l]
of counsel for Applicant's above described allegations of factual
error and legal sufficiency analysis error. The Court frequently
grants habeas corpus relief to "restart" the appellate timetable
whe~e erroes of counsel have deprived a petitioner of a meaningful
appeal or a petition for discretionary review~ In re Steptoe,l32
S.W.3d "434(Tex~·crim.App.2004)[cited in Hanby's Texas Rules of
Appellate Proced~rer283(West 2001 'ed.)]. New appeal .counsel w1ll
be able to prese~ve Applicant'~ rights to·~ ``aningful appeal,
by, ensuring a complete appellate record gets sent to the Waco
Court of Appeals to facilitate it's review of the [Tlotion for re-
hearing's points, and that the issues ra~s~d by Applicant on the
record herein get a constitutionally sufficient review adequate
to .protect Applicant's legal rights. See, e.g., T~x.R.App.P.49.1,
et seq; Rodriguez v. State,l29 S.W.3d 551,562-64(Tex.App.-Hous.[lst
Dist]2004, orr reh'g, pet ref'd)(on pro-se reh'g, finding legally
insufficient evidence, after rejecting appointed counsel's many
other meritless points of error, noticing ineffective assistance
of counsel on appeal claim w/o analysis thereof). A new appointed
appeal counsel can now ensure that Applicant's broadly iderifified
issues of reversible error by legally insufficient ~vidence' of
Applicant driving directly towards the trooper ~ t3 ~ actually
being objectively "threatened" under Penal Code §22.02(b)(2) as
alleged in the indictment, get~ presented for the first time in
the Waco Court of Appeals. See e.g., Hanby's,204[interpreting
Tex.R.App.P.49.1, as when the judgement of the court of appeals
itself gives rise to a new· issue, that issue may be raised for
the first time in a motion for rehearing and. must be considered
by the court, citing Bunton v. Bentley,l53 S.W.3d 50,53(Tex.2004) &
Sotelo v. State,913 S.W.2d 507,508-10(Tex.Crim.App.l995)].
l. See Findings of Fact and Conclusionsof Law,l-3(concluding Applicant "had
a right to participate in the appellate process" and "had the right to file
a PDR" and Applicant's appellate counsel failed to effectively preserve Applicant's
right to file a PDR; trial court's findings and conclusions inadvertantly omit
Applicant's argument that he would have pursued a motion. for rehearing also).
-2-
While th~ deprival of post-affirmance proceedings rights do
not require a showing of a favorable outcome, bu~ bnly that ~he
pro-se inmate would have availed himself of the proceeding had
his appeal counsel's conduct not caused a forfieture, Ex parte
Owens~206 S.W.3d 670,673-74(Tex.Crim.App.2006), Applicant ~hidden
-has stated facts which might entitle him to relief on the merits
of his proposed legal insufficiency. of the evidence arguments
based on the Waco Court of Appeals misinterpretation of the facts
1
in the record resulting in an incorrect legal sufficiency of tihe
evidence conclusion affirming the conviction below. See Steptoe,
132 S.W.3d @ 440-42(dissenting opinion of Cochran,J., joined by
Keasler,J, authorizing habeas relief overcoming doctrine of laches
when faced with demonstration of a ''fundamental miscarriage of
justi~e"). Therefore, the Court should order a ~emand to the trial
court for appointment of new appeal counsel and decidion on {n-
digen¢y. Ex parte Jarrett,891 S.W.2d 935,~40(Tex.Crim.App.l994)(re­
manding for fact findings on why appeal counsel fa~led to express
his piofessional judgement as to the po~sible ground~ for review
and ~heir' merit, and delineating the advantages and.disadvanta~es
of any further review, decision on indigency, appointment of coun-
sel, and evidentiary hearing); Hanby's,203(Rule 48.4 Commentary cit-
ing Jarrett for propositiong that appeal counsel must advise of.the
rights to seek rehearing ~ review on PDR)
PRAYER
'
WHEREFORE, PREMISES CONSIDERED, Applicant Whiddon respectfully
requests this Court reinstate the appellate timetable to February
7,2007 for the purpose of allowing a motion for rehearing and/or
a ·petition for discretionary review to be filed, remand the c~se
back to the 220th Judicial District Court of Bosque County, Texas,
for the limited purpose of determining indigency and appointihg
new appellate counsel, and to temporarily stay and abate the appeal
as reinstated unti.l new appeal counsel has obtaine~ for his review,
and for the Waco Court of Appeals review, the necessary trial
transcripts ...
CERTIFICATE OF SERVICE
i CERTIFY AND AFFIRM PLACING TRUE AND CORRECT COPIES OF THIS
INSTRUMENT INTO THE PRISON MAILBOX ON MARCH 23,2015 ADDRESSED
to: Abel Acosta, Clerk of Texas Court of Criminal Appeals, p.o.
Box 12308, Capitol Station, Austin, Texas 78711~2308, J~anita
~iller, District Clerk of Bosque County, p.o. box 674, Meridian,
'rexas 76665, B.J. Shepperd, riistrict Attorney 220th Judicial Dis-
trict Court, State Bar No.l8219500;P~o. Box 368, 111 South Main St.
Meridian, Texas 76665, by First Class u.s. Mail~
~
~·~\
PauiJaii1KOUII1]n~ U018iJ
> Petitioner, Hughes Unit, Rt.2, · >
Box 4400, Gatesville, Tx.76597.
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