Benitez, Samuel ( 2015 )

WR-78,427-02
N.o TC# F-085659R-H
THE STATE OF TEXAS CRIMINAL DISTRICT COURT NO. 1
Respondent DALLAS COUNTY, TEXAS
V.S. PETITION FOR PRODUCTION AND
SAMUEL BENITEZ INSPECTION OF GRAND JURY PROCEEDINGS
Cestui Que Vie Trust, AND/OR TESTIMONY
Petitioner
TEXAS CODE CRTM. PROC. ARTTC.LE 20.02(d)(e)
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, SAMUEL BENITEZ, Petitioner in the above stvled and cause, Pro Se,
Resnectfullv moves the court pursuant fo Texas rode of Criminal Procedure
(T.C.C.P.) Article 1.26, ArH.de 20.02(dWe) , Article 20.19 and Article 1,
Section 10 and 19 of the Texas Consti*nfcion. The Petitioner Shows the follo-
winq;
1) Petitioner, SAMUEL BENITEZ, without counsel is relying on Haines v. Kerner,
40^ U.S. 519, for less stringent pleading standards.
2) Petitioner is incarcerated in the Texas Department of Criminal Justice
Institutional Division-Bill Clements Unit. In this present incarceration:.
Peitioner is at a disadvantage due to not having access to legal reference
materials in Prison on par with those of the District Attorney's Office and
and other Persons answering this Petition.
3) This Petition is in accordance with (T.C.C.P) and the Laws of Texas upon
which Petitioner relies, same binding as promised performance, a benefit
due this Petitioner, an entitlement to equal Protection of the law under
administration of Justice Procedures.
4) SAMUEL BENITEZ, the Petitioner herein is a Cestui Que Vie Trust unless
otherwise evidenced. See TEXAS RULES OF CIVIL PROCEDURE Rule 52
5) Petitioner requests that he be permitted to examine and and all testimony
of each witness that testified before the Grand Jury. pRfiSElVIHDzll^ need
COURT OF CRIMINAL APPEALS
MAY 27
&osta,t
for the Grand Jury witness testimony— is a strong: interest in ensuring
accuracy of testimony outweights government interest in secerecy. In re
Grand Jury, 490 F.3d 978,988,990. (D.C. Cir.2007). Petitioner contemplates
that a particularized need for the testimony can be shown as follows:
a. To discover impeachment evidence
b. To discover Prior inconsistent Statements- Washington v. Texas 388 U.S.
14 (1967)
c. To discover mitigating and exculpatory evidence- Brady v. Maryland, 373
U.S. 83 (1963).
d. All witnesses that testified in Grand Jury testified on direct examination
pursuant to the Jenks.Discovery Act 18 USC $ 3500.
The need for all witnesses that testified is hereby requested by Petitioner
In the alternative the specific testimony that Petitoner requests is as
follows:
ALMA AVALOS, who testified under Direct Examination
JESSENIA AVALOS, who testified under Direct examination
JENNY PATRICIA ABREGO, who testified under Direct examination
MARINA GARCIA, who testified under Direct examination
ROGELIO PORTILLO, who testified under Direct examination
DETECTIVE RICHARD DODGE, who testified under Direct examination
OFFICER BRANDON INNES, who testified under Direct examination
DETECTIVE EDUARDO IBARRA, who testified under Direct examination
ANDRA LEWIS-KRICK, who testified under Direct examination
VICKI HALL, who testified under Direct examination
6) In the interest of justice Petitioner is further pursuing relief from
his final conviction in a Habeas Corpus Petition under the Gateway Claim
-Schlup v. Delo,. 115 S. Ct. 851 (1995). In his claim, Petitioner is asserting
trial counsel was ineffective. Upon such assertion, Inorder to find that
counsel was effective, an inquirey must be made according to Tex. Code of
Crim. Proc. Article 27.03. Accordingly, Petitioner was relying on trial counsel
to know the law and represent him to the best of counsels Knowledge. The
Law states," All objections and exceptions to the charging instrument must
be made in writing (T.C.C.P.) Art. 27.10; A motion to set aside , dismiss,
or quash an indictment should be made at the first opportunity and must be
presented to the trial court prior to.that Party's announcement of ready."
Neal v. State, 150 S.W.3d ,169(Tex. Crim. App. 2004); Where counsel is to
Motion to Setaside indictment Counsel must do so based on the following:
1. That it appears by the record of the court that the indictment was not
founded by at least nine Grand Jurors, or that the information was not based
upon a valid complaint;
2. That some person not authorized by law was present when the Grand Jury
was deliberating upon the accuation against the defendant, or was voting
the same;
3. That the Grand Jury was illegally impaneled;
Provided, however inorder to raise such question on a motion to setaside
the indictment, the Petitioner must show that he did not have an opportunity
to challenge the array at the time the Grand Jury was impanelled. As required
by Article 19 and 20 (T.C.C.P). Pe^vio" o^<^> tvn £».c.v iv\ceureev610 S.W.2d
771, 779(Tex. CRIM.APP.1981). The Indictment also gives the District Court
Subject Matter Jurisdiction. "Subject-Matter Jurisdiction never forfeited
or waived: U.S, V. Cotton, 535 U.S. 625, 630 (2002). "Jurisdiction may be
challenged at any time. Once State and Federal jurisdiction has been challenged
,it must be proven,-Texas Dept. of Public Safety;V,S506)Subject-
Matter Jurisdiction is a power that exists by operation of law only, and
cannot be conferred upon any court by consent or waiver, and thus a judgment
will never be considered final if the court lacked Subject-matter jurisdiction
-Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71; When a cause of action is derived
from a statute, the statutory provisions are mandatory and exclusive and
must be complied with in all respects or the actions is not maintainable
for ]ack of Jurisdiction- Grounds v.. Tolar Independant School Dist, 707 S.W.
2d 889; "A plea to the jurisdiction is a dilatory plea, its purpose is to
defeat a cause of action without regard to whether the claims asserted have
merit,"Nuecesr County v. Dale- Hoff, 105 S.W.3d 208. The Petitioner hereby
asserts that the . indictment is founded on fewer than the required number
of Grand Jurors votinq in favor of a true bill, The actual foreman failed
to deliver, the bill. Accordingly, Forgery of the forman's signature or even
inadvertent sigriiingq and returning of a bill in a case not reviewed by the
Grand Jury are all fundamental defects in charging instruments process which
would vitiate the instrument, vitiate trial Court jurisdiction and be subject
to first complaint on Appeal despite the failure to present objection prior
to trial on the merits. Aguilar v. State 810 S.W.2d 230
Petitioner asserts that the trial court had no Subject-Matter Jurisdiction
due to the Improper.grand jury proceedings, and void indictment.
For the reasons shown above Petitioner has asserted a Patricularized need
for. the disclosure of the Grand Jury Proceedings and/or Witness Testimony.
WHEREFORE: Good cause shown and in the interest of justice, the Petitioner
respectfully prays that this Court GRANT this Petition in all things
On jSj-h day of flJM 2015
RESPECTFULLY SUBMITTED,
By:
for SAMUEL BENITEZ-Cestui Que
Vie Trust, Petitioner
^1543909-Bill Clements unit
9601 SPUR 591
Amarillo, Texas 79107