Tran, Peter Phuc Hong ( 2015 )

RECEIVED IN
«*c..... PD.12n.13 mm*"«£»
COA No. 05-13-01199-CR DEC 07 2015
PETER PHUC HONG TRAN § IN THE COURT OF
§ Abel Acosta, Clerk
VS. § CRIMINAL APPEALS OF TEXAS
§
THE STATE OF TEXAS § AT AUSTIN, TEXAS
APPELLANT'S PRO SE MOTIONF FOR LEAVE FOR THE EN BANC COURT TO CONSIDER
RELIEF OF EITHER GRANTING AN ADDITIONAL EXTENSION OF TIME TO FBtf en IM
PRO SE PDRS: (ATTACHED HERETO), TO CONISDER PRIORLY FILED^MOTI-ON->I)R m
EXTENSION OF TIME AS TIMELY FILED PDR, OR FOR THE COURT TC)i,GRiANTIIV,INALAPPi
REVIEW ON ITS OWN MOTION (AND ORDER STAY OF COA MANDATE) -^ „ „„„_
TO THE HONORABLE JUDGES OF THIS EN BANC COURT: "" ^'D
This Court has jursidiction to grant review, on its ow^ru^q^aAn^, p,
anytime prior to the court of appeals mandate being issued. See,
Tex. R. App. Proc, 66.1, 67.1. In his priorly filed motion
for extension of time Appellant, Peter Tran, listed some possible
grounds for review. For example, in this case,the 5th District
Court of Appeals explictly refused to consider evidence favorable
to Appellant due to the court's duty in sufficiency of the evidence
reviews, to view the evidence in the light most favorable to
the verdict. See, Tran v. State, No. 05-13-01199-CR, Slip Op.
p. 9-10 (Tex.App. - Dallas August 12, 2015)(not designated for
publication). The confusion about whether an appellate court
may consider evidence favorbalr to the defendant in sufficiency
reviews has been documented, Temple v. State, 343 S.W.3d 570,
623-633 (Tex.App. - Houston [14th Dist] 2010, aff'm 390 S.W.3d 341)
(McCally, J., dissenting to denial of en banc reconsideration)(citing
Redwine v. State, 305 S.W.3d 360, 366 n.ll & n.12 (Tex.App. -
Houston[14th Dist] 2010, pet ref'd); and; the Hooper hypothetical
itself considered exculpatory evidence when evaluating the combined
and cumlative weight of all the evidence. See, Hooper v. State,
214 S.W.3d 9, 16 (Tex.Crim.App.2007). Additionally, the 5th
District Court of Appeals considered that the "motive" of a robbery
supporSted the verdict, even when the Jury's verdict in this
case rejected the capital murder charge, which was a murder in
the course of a robbery. See, Tran, No. 05-13-01199-CR, p. 9, cf.
p. 1 n.l. Sufficiency of the evidence reviews are concerned about
whether the finder of fact acted rationally and it would be irrational
for any reasonable jury to reject that the murder was committed
in the course of a robbery, only to turn around and use motive
of robbery in order to find appellant guilty of the lesser-included
offense of murder. See i.e., Grey v. State, 298 S.W.3d 644,
649 (Tex.Crim.App.2009)(concerning lesser-incldued offense instructions
acknowledging both that a verdict on the lesser-included offense
operates as an aquittal to the charged offense and that normally
a court must evaluate the rationality of the lesser offense,
not in isolation, but in comparison to the greater offense).
In the end, the circumstantial evidence in this case consisted
only of "post-offense conduct" and nothing in the record links
Tran to any specific act against Nguyen, the deseased. See,
Gross v. State, 380 S.W.3d 181, 186, 188 (Tex.Crim.App.2012)(law
of parties murder case), Winfrey v. State, 393 S.W.3d 763, 772
(Tex.Crim.App.2013)(the evidence did "not reveal any action on
her part to actually kill Burr..."), Solis v. State, 589 S.W.2d
444, 447 (Tex.Crim.App.1979)("behavior after the removal of the
screen was sufficiency inexplicable that reasonable doubt remains
as to what his specific criminal intentions actually were.")
Review should be granted in this case.
Tran has priorly requested an extension of time to file
his PRO SE PDR. Tran incorrectly thought the extension was granted
until Novemeber 30, 2015. However, Tran no longer has the postcard
notice of the deadline sent to him by this Court. On Novemeber 23,
2015, as Tran was finalizing his PRO SE PDR, he had someone look-up
his case on this Court's website in order to obtain the casue number
assigned to his PDR. At that time, for the first time, Tran
learned that his PDR was due on November 10, 2015. Tran requests
an additional extension of time until November 30, 2015, the
date Tran has verified that he placed his PDR in the prison mail
system for mailing to this Court. EXHIBIT "A" - PDR; See, Campbell v,
State, 320 S.W.3d 338 (Tex.Crim.App.2010)(prison mailbox rule).
If the Court is uncomfortable granting an additional extension
of time, in his priorly filed motion for extension of time Tran
listed some possible grounds for review. Thus, Tran would request
that this Court consider that priorly filed motion for extension
of time as his timely filed PRO SE PDR.
In the alternative, Tran request that any individual Judge
of this Court ORDER a STAY of the court of appeals mandate so
that the Court may consider whether to grant review on its own
motion. See, Tex. R. App. Proc., 67.2.
Tran has no excuse for missing the due date, other than
simply misreading the Court's notice. Tran is not attempting
to delay these proceedings nor to obstruct this Court's activities
$n any manner. It was a simple mistake and Tran asks that, in
the interest of justice, the COurt grant some form of relief.
PRAYER
Wil>: WHEREFORE, ALL CONSIDERED, PETER PHUC HONG TRAN, the Appellant
acting PRO SE, PRAYS this Honorable Court GRANT this motion in
ALL things and that after consideration by the EN BANC Court
the Court ORDER either:
1) an additional extension of time so that the attached
PRO SE PDR is considered timely filed;
2) that the priorly filed motion for extension of time
be construed as Appellant5PR0 SE PDR and timely filed;
3) that any individual Judge of this Court require the
court of appeals mandate to be STAYED so that the EN BANC Court
may consider whether to grant review on its own motion;
AND, ANY AND ALL OTHER RELIEF THIS COURT FINDS PROPER IN THE
INUREST OF JUSTICE.
Respectfully Submitted,
^
Peter Phuc Hong Tran
TDCJ No. 1868964
Hughes Unit
Rt. 2, Box 4400
Gatesville, TX 76597
APPELLANT PRO SE
VERIFICATION / CERTIFICATE OF SERVICE
I, Peter Phuc Hong Tran, TDCJ No. 1868964, being presently
incarcerated in the HUGHES Unit of CORYELL County, Texas (TDCJ-CID)
do declare under the penalty of perjury that the facts in this
motion are true and correct and that I have caused a copy of
this motion to be served by 1st Class USPS on the Collin County
District Attorney and the State Prosecuting Attroney on the date
executed below by placing it in the prison mail system.
EXECUTED on this the X^ day of //c>U€,//Jj\^ , 2015.
M
Peter Phuc Hong Tran
Appellant PRO SE