Parker, William Robert ( 2015 )

%12-15
ORIGINAL
OUT OF TIME PETITION FOR
DISCRETIONARY REVIEW
In The Court of Criminal Appeals
P.O. Box 12308 COURT OFCRIMINAL APPEALS
Capitol Station jyL 0 2 2015
Austin, Texas
Trial Court #13,122
Appeal Court #06-15-00058-CR
FILED IN
COURT OF CRIMINAL APPEALS
JUL 02 2S;5
Abel Acosta, Clerk
Appellate Case Number; 06-15-00058-CR
Trial Court Cause Number; 13,122
WILLIAM ROBERT PARKER, § COURT OF CRIMINAL APPEALS
Petitioner, pro se, §
§ P.O. Box 12308 Capitol Station
-v- §
§ Austin, Texas
THE STATE OF TEXAS, §
PANOLA COUNTY. § 78711
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, William Robert Parker, Petitioner, pro se, TDCJ-
ID #00325353, herein after refered to as "Petitioner", and files
this, his 'Separate Memorandum of Facts in Support of Grounds
for Out of Time Discretionary Review.' The Petitioner will show
this Honorable Court the Followinq:
The 123rd Judicial District Court of Panola Countv. Texas,
did not have Leaal Jurisdiction in the above stvled and numbered
cause. and that Petitioner is Actuallv Innocent. Petitioner
will also show that defense counsel was ineffective throuahout
the entire trial, and before, durina preparation for trial.
Petitioner will also show that defense counsel conspired with
Prosecutor and Judqe in all proceedinas. in direct violation
of auidelines established in Strickland -v- Washinaton. Petitioner
will also introduce newlv discovered case law on ineffective
assistance of counsel, in support of his alleaations.
Futhermore, Petitioner will present new case law established
on direct appeal. for Ineffective Assistance of Counsel, which
is now in effect for Texas. This is "Trevino." This new rulina
allows litiaants from Texas and other States, to re-enter the
appellate process by "Direct Appeal Out of Time."
Furthermore, Martinez -v- Ryan, likewise aives the Petitioner
a second time access to appeal directly, because of the fact
that defendants cannot file ineffective assistance on Direct
Appeal from the Trial Court in Texas, and so this new ruling
has come out in favor of Texas Defendants and others, on a second
time for direct appeal of ineffective assistance of counsel.
Ineffective Assistance of Counsel on this Out of Time Appeal
for Discretionary Review is brought by 'Trevino -v- Thaler,
133 S. Ct. 1911; and Martinez -v- Ryan. 566 U.S.I, 132 S. Ct.
1309.
The facts and the record in cause #13,122, show that John
Walker (the Prosecutor), and defense counsel, both had prior
knowledge of the issue of competency, and refused to bring it
before trial, as is proper law, in that "No person who is not
competent to stand trial can be found guilty", and the defendant
has the right to testify, in his own behalf and have compulsary
witnesses for his favor in support thereof, is now the Tim Coal
Act, in Texas Law. There is now no 'Time-Bar' for Innocence
Claim by Ineffective Assistance of Counsel in Texas.
TABLE OF CONTENTS
1. Carlos Trevino V Rick Thaler, 133 S. Ct. 1911
2. Fontonet -v- State, 932 S.W.2d. 185
3. Martinez -v- Ryan, 566 U.S. 1; 132 S. Ct. 1309
4. Olivo -v- State ,918 S.W.2d 519
5. Palm -v- State,656 S.W.2d 429
6. Soliz -v- State, 97 S.W.3d 137,(2003 rev. on rem. #WL22433813)
Tex. App. Houston Dist. 1994
7. State -v- Roberts, 932 S.W.2d 700
8. Strickland -v- Washington, 466 U.S. 668-686; 104 S. Ct. 2052;
80 L. Ed. 2d 674 1984
9. U.S.C.A. Const. Art. 3:2 cl-3: U.S.C.A. Const. Amend. 6:
Fed Rules Cr. Criminal Procedure, Rule 18; 18 U.S.C.A. case
at point:
U.S. -v- Carreon-Palacio, 267 F.3d 381 (Tex. Crim.
App. 2003)
I.
STATEMENT OF FACTS FOR GROUND ONE
Did the Court of Appeals error in not finding that the
Panola County Sheriff's Department did not have legal juris
diction to investigate this crime?
FACTS SUPPORTING GROUND ONE:
The Panola County Sheriff's Department was apparently called
to investigate this murder case, and even though this crime
had happened in Shelby County, the Panola County Sheriff's Depart
ment continued their investigation, which was outside of their
legal boundries, and their legal jurisdiction, and then arrested
and charged the Petitioner with murder in Panola County, TX.
The Petitioner has included an election map, which shows where
this murder was, in fact, commited (according to police records),
showing that the murder was commited in Shelby County, Texas,
and not in Panola County, Texas, as indicated in the indictment
handed down by the Panola County Grand Jury,,, which had no legal
jurisdiction in this case. The law plainly states; "Judicial
action without jurisdiction is void." Fontenot -v- State, 932
S.W.2d 185 (App. 2d Dist. 1966)(Criminal Law: Code 83. Tex.
Crim. App. 1996.)
"In criminal cases, as opposed to civii cases, jurisdiction
cannot be substantionally invoked, it either attaches, or it ,
does not." Olivio -v- State, 918 S.W.2d 519.
END OF GROUND ONE.
II.
STATEMENT OF FACTS FOR GROUND TWO
s
Did the Court of Appeals error in not finding that the Panola
County Grand Jury, that handed down this indictment for murder
against Petitioner, did not have legal jurisdiction to do so?.
FACTS SUPPORTING GROUND TWO:
The District Attorney of Panola County, Texas, presented
an indictment for murder against the Petitioner, to the Panola
2
County Grand Jury. At this point, The District Attorney failed
to inform the Grand Jury that this crime had happened in Shelby
County, Texas, not in Panola County, Texas, making it illegal
for the Panola County Grand Jury to even consider this case
for indictment. With the Panola County Grand Jury's decision
to indict Petitioner for murder, outside of Panola County's
legal jurisdiction, making this indictment null and void. For
Panola County had no legal jurisdiction to either investigate
or hand down any indictment in this case, for the murder had
been commited in Shelby County, Texas, approximately 1 mile
South.of the Panola County line, well inside of the Shelby County
boundries. The law plainly states; "The charging county must
have jurisdiction to procede with charging for any crime", which
with the address provided, at the time of the crime, was in
fact in Shelby County, making this indictment against Petitioner,
nuil and void, as well as an illegal and felonious indictment,
which must be voided. The Panola County Grand Jury did not have
legal jurisdiction to procede with any charges against Petitioner,
"The Sixth Amendment Grants criminal defendants a right to trial
by jurors from the locality where the crime was commited."
END OF GROUND TWO.
III.
STATEMENT OF FACTS FOR GROUND THREE
Did the Court of Appeals error in not finding that the
District Attorney of Panola County, Texas, failed to follow
State Law concerning areas of jurisdiction in which he could
bring charges?
FACTS SUPPORTING GROUND THREE:
The District Attorney of Panola County, Texas, failed to
follow State law of legal.jurisdiction in this case. He proceeded
to file murder charges on the Petitioner, even though the murder
had happened in Shelby County, Texas, and was not in the legal
jurisdiction of panola County, Texas. With the District Attorney's
over zealous attitude, he failed to follow State law of juris
diction and venue, and proceded with murder charges, even though
he did not have legal jurisdiction to do so, nor did he bother
to have a change of venue. The law, again, plainly states that
the charging county must have legal jurisdiction to proceed
in any case. This makes the District Attorney's charge of murder
in Panola County, Texas, an illegal charge, since the murder,
according to police records, had been commited in Shelby County,
Texas, and out of the legal jurisdiction of the Panola County,
Texas, District, making any charge in this cause illegal and
void. "When Trial Court renders judgement but lacks jurisdiction
to do so, judgement is void." State -v- Roberts, 932 S.W.2d
700 (App. 12 Dist. 1996);(Criminal Law: Key Code 990.1(4)) "Tex.
Crim. App. 1981. "If Jurisdiction of Trial Court is never invoked,
resulting conviction is void." Palm -v- State, 656 S.W.2d 429.
1
The District Attorney failed to follow criminal procedures
in this case, and without filing the charge of murder on Petit
ioner in Shelby County, Texas, as would have been the correct
county with jurisdiction, he proceeded with what was an illegal
action against Petitioner..
END OF GROUND THREE.
IV.
STATEMENT OF FACTS SUPPORTING GROUND FOUR
Did the Court of Appeals error in not finding that the
District Court of Panola County, Texas, that handed down the
conviction in this case, did not have legal jurisdiction, nor
did the court have the proper venue to proceed.
FACTS IN SUPPORT OF GROUND FOUR:
The 123rd Judicial District Court of Panola County, Texas,
handed down a verdict of murder against the Petitioner. The
Petitioner can show, with proper maps, that in fact this court
had no legal jurisdiction in this case and could not legally
do so. "In order to sustain a conviction, the court must have
jurisdiction to render the particular judgement. If trial court
is without jurisdiction, for any reason, judgement rendered
therein is void." (Tex. Crim. App. 1996) "In criminal cases,
as oppesed to civil cases, jurisdiction cannot be substantionally
invoked; it either attaches or it does not." (see Olivio -v-
State) "If jurisdiction of trial court is never invoked, any
conviction that may result is void."
The District Attorney of Panola County, Texas, was in such
of a hurry to convict the Petitioner that he failed to follow
State law,. and have the charges brought in the county in which
the crime was actually commited and then again failed to file
for a change of venue. (C.A.5 Tex. 2001) "Venue is an element
of any offence and prosecution always bears burden of proving
that trial is in the same district as crime's commission." )See;
U.S.C.A. Const. Art. 3, §2, cl. 3: U.S.C.A. Const. Amend. 6:
Fed. Rules Cr. Proc. Rule 18. 18 U.S.C.A./ U.S. -v- Carreon-
Palacio, 267 F.3d 381. Tex. Crim. App. 2003) "Venue" means the
county or District in which a court with jurisdiction may hear
and determine a case. (Soliz -v- State, 97 S.W.3d 137, on remand
2003 WL22433813."
Tex. App.-Houston [1 Dist.] 1994. "Failure to prove venue
in county of prosecution is reversible error." The Petitioner
has shown that the convicting court neither had legal jurisdiction,
or proper venue, to procede in this case and the conviction
should be voided in accordance with the law.
END OF GROUND FOUR.
V.
STATEMENT OF FACTS SUPPORTING GROUND FIVE
Did the Court of Appeals error in not finding that the
Prosecutor, John Walker, and the District Judge, Bennie Boles,
conspired together to withhold evidence from the defendant?
FACTS SUPPORTING GROUND FIVE:
THE DISTRICT ATTORNEY, JOHN WALKER, AND THE DISTRICT JUDGE,.
BENNIE BOLES, conspired together to withhold evidence that would
have cleared the Petitioner of this crime. Any evidence that
is favorable to the defense must be turned over to the defense
by the prosecution or there is a Brady violation. The prosecution
had another person that had stated that it was them that had
shot and killed the victim in this case, and not the Petitioner.
This seems to follow a pattern by the officers of the court,
by not followinq state laws and proceeding without proper juris
diction, nor proper venue, just to convict someone, guilty or
not, of this crime.
in the indictment handed down by the Panola County Grand
Jury, it states: "did then and there intentionally and knowingly
cause the death of an individual, to wit, Shane Boyd Caskey,
by shooting him with a gun." The prosecution never stated what
kind of gun was used, nor did the prosecution ever produce a
gun that the Petitioner was supposed to have commited this crime
with.
The two witnesses for the State, that testified at trial,
were; Tommy McMan and Elbert Ray Thompson. Thompson testified
that he let the Petitioner out at the crime scene. Tommy McMan
testified that Petitioner told him that he [petitioner] had
shot the deceased. Both McMan and Thompson' had criminal charqes
against themselves, which were later dropped for their testi
mony, making their testimony questionable and unreliable.
At trial. District Attorney John Walker, alleged that the
Petitioner had a "Shot-gun", one that he could not produce,
nor prove that Petitioner ever was in possession of. In the
indictment, there was never a statement to the Grand Jury, that
a qun had ever been produced. The gun and/or weapon that was
Id
alleged by the prosecution to have been used in this murder
case, was never produced or entered into evidence. Yes, someone
did shoot and kill Petitioner's brother-in-law, but it was not
the Petitioner. This whole case aqainst the Petitioner was fabri
cated by the prosecution. Just as both State's witnesses aqainst
Petitioner fabricated their testimony for the prosecution in
exchanqe for the criminal charqes aqainst themselves beinq
dropped for such testimony.
END OF GROUND FIVE.
VI.
STATEMENT OF FACTS SUPPORTING GROUND SIX
Did the Court of Appeals error in not findinq that the
123rd Judicial District Court of Panola County, Texas, did not
allow Petitioner's psychiatrist, Thomas Merk, to testify durinq
the "guilt/innocence" phase of the trial?
FACTS SUPPORTING GROUND SIX:
The District Judge, Bennie Boles, and the Prosecuting Attor
ney, John Walker, would not allow Petitioner's Psychiatrist
to testify as to Petitioner's mental state, and therefore denied
Petitioner a fair trial.
As petitioner previously cited the recent over-turning
of the conviction of Bernhardt Tide. Mr. Tide was also convicted
in Panola County, Texas, and his conviction was overturned because
his Psychiatrist was not allowed to testify about his mental
condition at the time of the murder he was accused of commiting.
The Petitioner is claiming that his right to a fair trial
was denied, therefore violating his "Sixth Amendment Right"
to a fair trial.
During Petitioner's trial, his Psychiatrist was not allowed
to give testimony as to why Petitioner was not testifying in
his own behalf. Mr. Merk wanted to make his presentation of
the reasons for this, but the judge and the District Attorney
would not allow him to do so. This gave cause to the jury that
the Petitioner had something to hide, and denied Petitioner
that area of reasonable doubt.
Petitioner does not have the actual ruling from the Twelfth
Court of Appeals on the Bernhardt Tide case, because the unit
law library is not up-to-date. Mr. Tide's cause number, W1316182-
81, was overturned in the last ?,.. ;:, and without an outside
source, Petitioner cannot give this Honorable Court the exact
ruling in the case.
ATTACHMENTS
Furthermore, are two attachments that show by affidavit
that defense counsel, Dick DeGurin, Prosecutor John Walker,
both had knowledge of the issue of competency, prior to trial,
and they both conspired to deny the Petitioner a fair>trial
as afforded by the 6th Amendment, along with Ineffective Assista
nce of Counsel by Dick DeGurin, in violation of Strickland -
v- Washington, Absolute Innocence under the Tim Cole Act and
Ineffective Assistance of Counsel on appeal and in trial in
regards to "Trevino -v- Thaler", 133 S. Ct. 1911, and Martinez
-v- Ryan, 132 S. Ct. 1309.
Affidavid in support of Facts
Cause # 13,122
I am Franklin Parker I retained Persey Foreman to
represente my son William Robert Parker in June of 1980
at this time my son was in Houston International Hospital
Mr. Foreman sent his representative Dick DeGuerin to
Houston International Hospital to interview my son this was
some five monts before I retained Mr". Foreman again to
represente my son on a murder case which is the subject of
this affidavid. I discussed the facts of my son being in
Houston International Hospital with both Persey Foreman
^•Zii^Sr ©±ck Deguerin and both had information relating to
the issue of compendecy some five monts prior to the
murder trial where the issue of compendecy was not brought
to the courts attention prior to the trial.
I Franklin Parker certify under pentaly of pergery that •F. ,
the foregoing is true and correct.
Franklin Parkers Signatui^e? 71"
Notery Signature_ >AMdi ftlol
Date T- to ~Z? BONNY WELCH
Notary Public, State of Texas r
My Commission Expires 3-10-90 I
Notery seal
BIAIlFi/ CAUSE NO. 13,122
WILLIAM ROBERT PARKER § 123rd Judicial District Court
Petitioner, Pro Se §
§
§
§
of ""
STATE OF TEXAS § Panola County, m"
RE: Sworn statement of Petitioner with Exhebit's in support
Mr. John Walker, when County Attorney for Shelby County in
of Compensety in that, I William Robert Parker, was in the Houston Internatfc^T
Hospital for an extended period of time and was Under Indictment for a Mistermenor
Assult of Cam Black of which John Walker represented the state.
Enclosed is a notorized letter of my father at the hearing of Persey Forman
showing Dich DeGuerin had this knowledge.
At mid trial for the first time I saw the picture's of the deceased and told
counsel that "I did not Commit the crime. The issue of Compendency was brought
up for the first time.
The Prosicution never produced the firearm nor did the Prosicution find a
firearm that belonged to the Petitioner. The Prosicution only had heresay
evidence to convict Petitioner of this crime and then the Petitioner was not
allowed to testify in his own behalf and defend himself of the charge. The Judge,
District Attorney and Defence Counsel finally raised the issue of Compency at
Mid-Trial and this was after getting a conviction.
UNSWORN DECLARATION
I, William Robert Parker, Petitioner, Pro SE, TDCJ-ID NO. 00325353, being
presently incarcerated at the L.C. Powledge Unit of the Department of Criminal
Justice-Correctional Institutions Division in Anderson County, Texas, does
hereby certify that this document is true anc} correct.
Executed on this the / day of [J&44 M ,20,14.
William Robert Parker, Petitioner, Pro Se
%
CONCLUSION
The Petitioner has shown this Honorable Court that his
"Sixth" Amendment Right to a Fair Trial, was violated by the
123rd Judicial District Court of Panola County, Texas, on the
competency issue, which should have came before the trial, and
a Jurisdictional Issue, before, during and after the Petitioner's
trial. The Petitioner is asking this court for relief of an
unconstitutional sentence under new law of the Supreme Court
of the United States; Carlos Trevino -v- Rick Thaler, 133 S. Ct.
1911, and asks this court for relief.
PRAYER
The Petitioner Prays that this Honorable Court will Grant
this petition for Discretionary Review, and Grant the Petitioner
the relief so sought. Thank you.
William Robert" Parker",
Petitioner, pro se.
TDCJ-ID #325353
Powledge Unit, TDCJ
1400 FM 3452
Palestine, TX 75803
DECLARATION
I, William Robert Parker, state bv Declaration, that the
foreqoina Out of Time Discretionary Review Appeal from the Sixth
Court of Appeals in Cause Number 06-15-00058-CR, is true and
correct, on this, the MgP day of ^nfA/T\JU 2015, by my
siqnature of William Robert Parker.
siqnature of William R. Parker
CERTIFICATE OF SERVICE
I, William Robert Parker, state bv D#claration. that a
true duplicate of the foreaoinq Out of Time Discretionary Review
petition. was mailed by regular mail, postaae Dre-paid. to the
Court of Criminal Appeals. at P.O. Box 12308 Capitol Station.
Austin. Texas; and to the District Clerk of Panola County, Texas.
ATTN: Debra Johnson, at 110 S. Sycamore Street. Courthouse,
Carthage, Texas 75633, on this, the /7y^? day of
2015. by my siqnature of William Robert Parker,
^CtomJ
siqnature of William Robert Parker
IN FORMA PAUPERIS
INABILITY TO PAY COSTS
I, William Robert Parker, state by declaration, that I
do not have the funds to pay for the filinq of this action and
reauest that the court waive the filinq fee at this time, and
that I, William Robert Parker, be allowed to proceed with this
complaint on this, the cJLj^K day of Jj.^j?; . 2015, by my
siqnature of William Robert Parker.
William Robert Parker
n
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00058-CR
WILLIAM ROBERT PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court
Panola County, Texas
Trial Court No. 13,122
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
I v
MEMORANDUM OPINION
William Robert Parker was convicted of murder by a Panola County jury in 1981 and was
sentenced to life in prison. His conviction and sentence were affirmed on direct appeal. Parker v.
State, 667 S.W.2d 185 (Tex. App.—Texarkana, 1983, pet. ref d). On October 1, 2014, thirty-three
years later, Parker filed a motion in the trial court for an out-of-time new trial. Then, on January
16, 2015, Parker filed a second motion for an out-of-time new trial. On March 18, 2015, the trial
court entered an order essentially finding that it was without jurisdiction to rule on Parker's
motions seeking a new trial. On April 16, 2015, Parker filed a notice of appeal from the trial
court's March 18 order denying Parker's motions for an out-of-time new trial. Because the trial
court's order from which Parker attempts to appeal is a non-appealable order, we are without
jurisdiction to hear this appeal.
In the State of Texas, a party may only appeal when the Texas Legislature has authorized
an appeal. Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App. 1981). When the Legislature
passes such legislation, in addition to granting its citizens a right of appeal, it also grants the
appellate courts of this State jurisdiction to hear such appeals. In the absence of such authorizing
legislation, appellate courts are without jurisdiction and have no authority to act.
Generally speaking, in the criminal context, the Texas Legislature has only authorized
appeals by criminal defendants from written judgments of conviction. See Gutierrez v. State, 307
S.W.3d 318, 321 (Tex. Crim. App. 2010); Exparte Shumake, 953 S.W.2d 842, 844 (Tex. App.—
Austin 1997, no pet.). There are a few very limited exceptions to this general rule, see Wright v.
State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.), but the trial court's March 18 order
•».
I
denying Parker's out-of-time motion for a new trial does not fall within one of those exceptions.
See generally Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Wright, 969
S.W.2d at 589; see also Williams v. State, No. 05-08-00983-CR, 2008 WL 2971990, at *1 (Tex.
App.—Dallas Aug. 5, 2008, no pet.) (mem. op., not designated for publication) ("An order denying
a motion for an out-of-time new trial is notan appealable order.").' Consequently, we are without
jurisdiction over this appeal.
By letter dated May 28, 2015, we notified Parker of the potential defect in our jurisdiction
and afforded him an opportunity to respond. In his response, Parker cited Martinez v. Ryan, 132
S. Ct. 1309 (2012) in support of his contention that this Court has jurisdiction to hear his appeal of
the trial court's March 18 order. In Martinez, the United States Supreme Court addressed the issue
of whether the doctrine of procedural default barred a federal district court from considering an
ineffective assistance of trial counsel claim when the default was caused by the error of appointed
collateral review counsel. Id. Martinez is not helpful to Parker's position.
In light of the foregoing, we dismiss this appeal for want of jurisdiction.
Ralph K. Burgess
Justice
Date Submitted: June 15 2015
Date Decided: June 16, 2015
Do Not Publish
'Although unpublished cases have no precedential value, we may take guidance from them "as an aid in developing
reasoning that may beemployed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref d).
3