Greer, David AKA David Duane Greer ( 2015 )

1 ,~ _ mm uo. 1_2-033-24-an-272-A l’\\ w t 02
APPL’ICAN|" S AITACHED MEMORANDUH OF LAH FOR HIS 11_.'07 " 1'
(§RUUND UF ERROR NU. 1: RPPLICANT 15 BElNG UENIED HIS UUE PRUCESS RIGHI TO A
CUMPLE|E CUPY OF THE TRIAL RECORD TO PREPARE HIS POST- CONVICTION COLLATERAL
ATTACK.
Applicant is "N_O_T" seeking _’a _f__ree copy of the trial record. lhe Court``Reporter
refused and failed to properly record word for word every thing that was said during
trial. Specifically by trial counsel, prosecutor and judge and jury. Additionally
failed to include the jury notels) to the judge, whether trial counsel was present
during the decision making process as to how to respond to the note. Additionally
there is a total absence from the record as to what steps were taken to secure
Applicant' s presence during this critical stage of the proceedings.
The present trial records clearly verifies there was three off the record
discussi.ons. This vital and potential vital information was not recorded. This
failure insured that the transcription of the proceedings is fatally incomplete. The
first discussion occurred immediately after the venire panel was seated. Vol.3 P. 5
L‘._3, Applicant was present and 'now will recite to the best of his ability what was
said``. The trial judge the llonorab"le Trav'is Bryan llI called AlTENTwN: to the
distinguished Mr. Robert Cessna veniremenber No. 6. lwho was selected as juror
No.Z. Vol.3 P.162 L'.B.) As being a famous sport writer who works for the local
newspaper. The Bryan Eagle. Then the judge launched into a short speech about his
:highly acclaimed friend's more distinguished accomplishments; then asked the entire
courtroom to _give him around dr of applause for his`` close and dear friend
Mr.Cessena. The entire courtroom did in fact give him a loud and long round of
applause. All these vital events were not recorded as such they are not a part of
the transcribed record. The lack of this recorded evidence has denied applicant the
necessary record to establish that counsel was ineffective for not questioning this
juror about his relationship with the judge, if said relationship would effect his
decision making, process. lhis is the most vital and primary function during voir
dire. See Cadoree v. State, 810 S.w.Zd 786,789 (TeX.App.-Houston [l4th Dist.j 1991).
Additional off-the-record discussion took place. vol.3 P.142 L24, P.165
L.25.'lhis missing word for word conversation involved the judge, D.A. and trial
counsel. This missing record is potentially vital.
Another "off-the-record discussion." Vol'.3 P.1x73"L'.2"l)'. Applicant, overhea-rd~z.-=»€§
portions of this open court proceeding. Counsel revealed his representation of
applicant against the actions of the Bai:zos County Sh vE wi h entail
f w ne s. Counsl revealed that
all on the state' s it sse e §§M'NALRP£ Barzos
.- TNOV 03 2015
1
AbelAc@sia,©lesi<
Co. Sheriff's Dept. as a ride along, at times he participates in armed raids during
which his very life is entrusted in the hands of the county's deputies. Therefore,
it was in the best interest of counsel to not subject his co-workers» to ridged
v cross-examination. Exposing them to possible disciplinary actions, civil suits or
criminal charges being filed against them. Thereby creating a hostile work
environment. white v. Reiter, 640 S.w.2d 586,599 (Tex.Cr.App. 1982).
This lack of this recorded evidence has denied applicant the evidence he needs
to establish his counsel's conflict of interest, and that the judge was aware of
this~ conflict of interest. Applicant is now left with the ball assertion in state
and federal court, post-conviction proceedings§ The Supreme court has long ago ruled
in its landmark decision this is insufficient. Cuyler v. Sullivan, 100
S.Ct. 1708,1719 (1980)("[u]ntil a defendant shows his counsel representation
represented a conflict of interest, he has not established the constitutional
predicate for his claim of ineffective assistance of counsel.
' See Vol.¢l P.183 L.15 which unambiguously establishes that there was a jury
note, that a discussion was held then a reply was sent vby the judge. Also that the
record does not include this note, nor if counsel and or applicant was present and
consulted before a reply was sent, also what steps were taken to secure applicant‘s
presence. It is mandatory lthat. the record reflects these levents. See_
Tex.C.C.P. 36.27. See also U.S. v. Smith, ``31 F.3d 469,473 (7th Cir.1-994)._
This rule is setup to guard against Ex Parte communications between the judge
and jury. Now what is the most disturbing portion of the missing records is the ex
parte communications between the judge, prosecutor and jury. As noted in the record
Vol.4 P.183 L.15 the juror(s) during deliberation the jury requested to view the
video._ Applicant has now submitted a notarized affidavit. Ex. A. The judge ran
everybne out of the courtroom except the prosecutor. The judge then summoned the
jury panel into the courtroom", the prosecutor set up the video on his person lap top
and served as the on scene operator. Trial counsel nor Applicant was
present. Shortly after this viewing the jury returned a verdict of guilty. None of
these highly illegal, highly prejudicial events are on the record. This in itself
requires a new trial. See Revell v. State, 885 S.w.2d '206,211 (Tex.App.-Dallas
1994). Ex parte communication limited to the jury foreman and judge alone‘was
, prejudicial enough for the Supreme Court to agree a new trial was warranted. United
`` §i_;_aw, v. Unitgi Sta@ Gprn Co'., 98 S.Ct. 2864,2885-86 ("Fina_lly, the absence of
counsel from the meeting and the unavailability of the transcription of full report
of the meeting aggravate the problems..."). This secret meeting between the judge,
prosecutor and the entire jugy_ panel's private extended viewing of the inculpatory
video' orchestrated by the-prosecutor,~far exceeds the ex parte communication(s) the
Supreme Court requires for reversal. Id at 2885-86.
In the event that this court should attempt to rule that this error needed to
be objected, to, to preserve`` error will only highlight that these ex parte
communications and events took place without counsel being present, in violation of
36.27 supra., u;s. v. smith, supra at 471. 4 '
Applicant has a due process right to these records without unnecessary
delay; DeLancy v. Caldwell, 741 F.2d 1246,1247 (10th Cir.1984). Applicant has
suffered harm but not limited to: Being forced to file an incomplete 11.07 in
efforts to stop the running of the one-year statute of limitation pursuant to 28
U.S.C §2244. Also the continuing incarceration of an innocent person. Triestman
v. U.S., 124 F.3d 361,379 (2nd Cir. 1997). Applicant request ``that he be provided a
complete copy of the trial record, and the-opportunity to supplement his 11. 07.
GROUND OF ERROR NO. 21 APPLICANT wAS DENIED HIS SIXTH AMENDMENT RIGHT T0 j
CROSS- EXAMINE THE wITNESSES AGAINST HIM.
Officer Ficke prepared the Vehicle Inventory Report which is testimonial the
linch-pin (evidence) that was used to prove the gun and jacket was legally
obtained. Thereby allowing it to be used as evidence during trial. As such the
manner in which the report was prepared is the nexus of the entire case. Because of
' these facts applicant had a Sixth Amendment right to cross- -examine this witness.
Meledez- Diaz v. Massachusetts, 129 S. Ct. 2527 (2000):
"The Sixth Amendment of the United States Constitution, made applicable to the
State' s via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85
S. Ct. 1065, 13 L. Ed. 2d 923 (19655, provides that '[I]n all criminal
prosecutions, the accused shall enjoy the right...to be confronted with the
witnesses against ' him.' In Crawford, |v, washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004 after reviewing the Clause's historical
underpinnings, we held that it guarantees a defendant's right to confront
'those ‘who bear testimony' against him... A witness testimony against a
defendant is thus inadmissible unless (Pg. 321) the witness appears at trial
or, if ‘the witness is unavailable, the defendant had a prior opportunity for
cross- -examination 1d. at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177."
The fact in question 4is whether the Vehicle Inventory Report compiled by Brazos
Co. Sheriff's Deputy Ficke is testimonial. It represents the same testimony he is
expected to provide if called at trial. See Meledez-Diaz v. Massachusetts, supra at
321: ("The fact in question is that 'the substance found in the possession of
Melenda-Diaz-the precise testimony the analysts would be expected to provide if
called to trial.").
This report prepared by officer Ficke is considered on the same plane as the
report prepared by the analysis in Meledez supra each are not entitled to the
exception of business 'records. See M, supra L;Ed.2d at 328:
"The`` analysts' certificates-like police reports generated by law enforcement
officials do not qualify as business or public records for precisely the same
reason. See Rule_803(8)(.defining Public records as "excluding, however, in
criminal cases matters observed by police officers and otherflaw enforcement
personal"). At 329 "Business and Public records are generally admissible
absent confrontation not because they qualify under an exception to the
hearsay rules, but because-having been created for the administration of the
entity's affairs and not for the purpose of establishing or proving some fact
_ at trial they are not testimony..."
»For this reason applicant has a Sixth Amendment right to cross-examine officer
Ficke, so he could test the reliability of the report. Meledez, supra at 326: ("To
be sure, the Clause's``ultimate goal is to ensure reliability of 'evidence, but it is
a procedural rather than a substantive»guarantee. It commands, not that evidence be
reliable, but that reliability be assessed in a particular manner by testing in the
crucible of cross-examination."). Additionally it's the prosecutor~'s responsibility
to ensure Ficke is present and not applicant‘s. Because it» is the prosecutor's job
to produce adverse witnesses. Meledez, supra L.Ed. 2d at 323 ("Const. Amend 6. The
text of the Amendment contemplates two classes of witnesses-those against the
defendant and those in his favor. The prosecutor must produce the former.)“.`` Because
applicant was denied his Sixth Amendment right to cross-examine officer-‘Fic``ke`` this
writ should be granted and a new trial order.
Next`` is the matter of being denied the right to cross-examine the witness that
gave evidence against applicant for a past crime, a description of the vehicle and
the sole witness to provide-a description and identification of applicant as the
driver of the vehicle. The State was allowed to prove this key element by hearsay
testimony without allowing applicant to test the reliability of said testimonial
evidence. Matz v. State, 14 S.w.3d 746,747 (Tex.Crim.App.ZOOO)("The gravemen -of the
general exclusion of hearsay __is that such testimony is not subject to testing
through cross-examination.")..All testifying witness agreed they could not identify
applicant as the driver until after applicant was forcefully pulled _over and
simultaneously arrested at gun point. Vol.4 P.75 L8-14. Officer Terry Young
testified that" I may have been about a block or'so behind everybody else. Vol.4
P.58 L18-19. Officer Ledesna testified he was in the vehicle at the very back I came
in after--right after the stop. Vol.4 P. 82 L.2-3. Even though this witness was
alleged to be a CI him/her was still subjected to cross-examination because he/she
gave evidence against applicant that he was the driver of the vehicle without said
testimony the forceful stop, arrest and inventory search also the confiscation of
the gun was illegal. Therefore, applicant had a Sixth Amendment right to cross
examine this witness. ' .
, Even the judge was concerned by the lack of "any direct testimony by stating:
That they never identified him before they'pulled him over. Vol. 4 P. 108
L.12-17, Applicant had a right to test the credibility of the CI's description.
Because this very information through out trail and specifically to deny appli,ant's
motion to suppress. Vol.4 P.108-111. _ See §r_‘awford1 v. washington, 124
s.ct. 1354,1364 (2004): ~ " _
"The test of the Confront``ation Clause reflects this focus. lt applies to
'witnesses' against the accused-in other words, those who 'bear testimony' 2
N. webster, An American Dictionary of the English Language
(1828). "Testimony.' in turn, is typically .'[a] soleman declaration or
affirmation made for the purpose of establishing or proving some fact. Ibid."
This witness's testimonial evidence was used to identify both the vehicle and
applicant as the driver. Before the CI's information, Brazos Co. Sheriff's Dept. had
-no ideal applicant had an arrest warrant by the city of Bryan police Dept., his
location nor what he was driving. Vol. 4 P.88 L.3-11. This detailed information
provided by this alleged witness is of the paramount importance because only this
witnesses' identification of the truck and applicant 'as the driver provided
authority for the deputies to- forcefully pull applicant over arresting him at gun
point." This vital evidence can not be overstated. without it there could have£_ been
no stop, no arrest and no search, no trial much less a convict'ion.``
Because 4the State failed to produce this witness for cross-examination
applicant was denied his Sixth Amendment right to subject this witnessesinfo'rmation
to adversarial testing. Meledez, supra at 326. For this reason this writ should be
granted and new trial ordered.
GROUND OF ERROR NO. 3: THE PROSECUTOR DENIED APPLICANT A FA!R TRIAL IN
VIOLATION OF THE SIXTH AND FGURTEENTH AMENDMENTS OF'THE U.S. CONST. BY USING '
HYPOTHETICAL SITUATIONS WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE »TO
COMMIT JURORS TO THE STATE‘S THEORY OF CONVICTION BEFORE``ANY EVIDENCE BEING
PRESENTED BEFORE THE ACTUAL TRIAL BEGIN.
GROUND OF ERROR NO. 4: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL IN
' VIOLATION OF THE SIXTli AND FOURTEENTH AMENDMENTS OF THE U.S. CONST. BY USING
HYPOTHETICAL SITUATION WHICH INCLUDED THE SPECIFIC FACTS OF THE CASE TO STRIKE
THE JURORS THAT NERE UNWILLING TO CONVICT APPLICANT BASE_D UPON THE EVIDENCE
AND LEGAL THEORY TH_AT THE STATE WAS GOING TO PRESENT WHEN THE TRIAL BEGIN.
The prosecutor used the exact facts of the case that they were going to use to
convict applicant to find jurors that would convict applicant and s_truck the ones
that would not commit themselves. ``
The state's theory to convict is that the truck belonged to him and any thing
that was in his truck'belonged to him. e.g.' gun and jacket. .
During voir dire the prosecutor set forth the exact facts and legal theory to
all venirepersons: vol.3 P. 41-42 MR'.' CALVERT: Did--you drove ``your truck to the
courthouse today---No. 37 Yes, sir, MR. CALVERT: It's parked out in the parking
lot? No. HJ: Yes, sir...You didn't bring you tools into the courtroom, did
you?...No, sir--okay. And you said those tools,_ even thought they're in your
'vehicle, they're in your possession, right? Yes, sir, they are--why? do you think
so?--Because they're under my care. I can_»manage those tools. The prosecutor then
when row by row P. 42 L.22-24 Jury member Mr. Cobes agreed. The jury foreman agreed
P. 57 L.6. All jurors that disagreed were struck; e.g. P.45 L.3 Mr. Bernal.
The prosecutor even selected jurors that were willing to convict applicant even
if they did not prove he owned the gun (exact facts of the case). P. 65. Jurors that
refused to convict based upon these facts were struck. e.g. Ms. Ford~ (P.'65 L. 23)_
Ms. welsh P. 66. _
_ The prosecutor first set forth the facts and legal theory (the gun was in
applicant's truck, even if someone else (Ms. Campbell) claims they own it,'it is
still in applicant's possession.' Vol.3 P.65-68 L.5-8 Mr. CALVERT: Are you okay with
what we were talking about, that somebody could not own something'and not even
physically be in possession; but they can still be i-n possession of it? you okay
with that? This represents the exact facts and exact lack of evidence the state was
fixing to present. For' the verinemembers were asked how they felt about convicting
someone based upon these facts. Any juror that refused to convict based upon this
lack of evidence or legal theory were struck.' This clearly violated Applicant' s 6th
and 14th -Amendment right to a fair and impartial jury and trial. U.S. v. webster,,.v
162 F.3d 308,341 (5th Cir. 1998)(The 'Sixth Amendment right to a fair trial includes
the right to an impartial jury Mrg_ag_v_._gl_ing_ii, 504 U;S. 719, 727, 112
S. Ct. 2222, 119 L. Ed. 2d 492 (1992)"'). Because the jurors were already conmit_ted to
convict applicant based upon this particular set of facts they"were no_ longer
impartial. M, 810, S.w.2d 786,789 (Tex.App.-Houston "['14th»111»'st1 _1_991):
"The Court of Appeals in affirming the trial court stated: "the policy behind _
the above rule is that voir dire is designed to insure impartial jurors, but"
if jurors are forced to commit themselves prior to the trial as to how they:_,
would consider certain facts or testimony, then the case is being tried on 1
voir dire and the jurors are no longer impartial." _
For sure the prosecution' s questions were designed to bring out the jurors
views on the facts of the case that was fixing to be trial. Atkins v. State, 951
s,w.zd 787,789 (Tex.cr.App.1997):
"'...By asking the veniremembers if they could convict ~ based on the
hypothetical given, the State was not explaining the law but was seeking to
commit the venire to a particular set of facts.'"). See also Paustian v. State,
992 S.w.2d 625,627-28 (Tex.'App.El Paso 1999)(,"while it is proper to use
hypothetical fact situation to explain the application of the law, it is NOT
proper to inquire how a venirperson would respond to a particular
circumstances presented in a hypothetical question...The State was NOT
explaining the law, but was seeking to commit the venire to a particular set '
of facts. Atkins, spura., 789'. Every veniremember who ultimately served on the
jury was asked individually that same question by the State. This type of
question using hypothetical or otherwise, is improper-and serves NO PURPOSE
OTHER TllAN to commit the jury to a specific set of facts prior to presentation '
`` of any evidence at trial.“ Id at 789");
There should not remain any doubt that the prosecutor used the exact facts of the
case. He asked all veniremebers row by row how they felt and the ones that did not
agree to convict were struck. These questions were specifically designed to bring
out th_e veniremembers views on the facts of the case,that was going to tried. See
Paustian v. State, supra. at 627:
"Although it is proper to question juror‘s views and sentiments on social and
moral subjects generally, lthe courts do not permit a hypothetical cases to be
submitted, nor do they allow questions designed to bring out the juror‘s views
on the case to be tried." `` ``
The prosecutors questions did in fact bring out the juror‘s views not only on
the case to be tried ``but also of the evidence the state was going to present and how
the juror‘s viewed this evidence. The record verifies that the prosecutor used the
voir dire to question, interrogate and investigation the jurors views of this
specific case. Thereby handpicking a jury to convict appellant upon the evidence and
lack of evidence the State was going to present. Brandborg v. Lucas, 891
F.Supp. 352,358 (E.D.Tex.1995): l
"However, jury selection is 'not to afford individual analysis in depth to
permit a party to choose a jury that fits into some mold that he believes
g¢i)pr<))pri:te for his case.' Shclinsky v. llnited States, 379 F.2d 735',_ 738 (1st
Applicant will now set forth the facts in the record establishing how the
prosecutor capitalized on his unconstitutionallycommitted jurors. The prosecutor
from the start of trial "Opening Statement" started reminding jurors of their
commitment by`` letting them know "its applicant truck." P. 23 L.6-7 Mr. Greer and
Ms. Campbell -- were located together. they were in Mr. Greer's pickup. HE OllNS I»T. The
prosecutor had his very first state witness Terry Young testify it was applicant's
truck P.34 L.24-25 "...you said earlier, there was nobody else in the Defendant's
truck, right? P. 35 L.1 A. That's correct, sir. The prosecutor continued to argue to
the juror‘s it was ~appl‘i'caht's truck even though he "knew "it fwas not'~'. ;"Be,cause trial
counsel _ had this very witness admit it was not applicant's truck.-Vol. 4 P.72
L.24-25 P.73 L.1-5. "Q.' Now, the vehicle that Mr. Greer was driving; that is
actually registered to a Kenneth Greer, is that right? A. Yes, sir. Q. And so, that
would be--that would be David's dad, and not actually David, it that
correct? A. Yes, sir.
At this point the prosecutor knew it was not applicant‘s truck, to obtain a
conviction he had to convince the jury it was applicant's truck because they had
already committed themselves to do so. The prosecutor reminded jurors of their
commitment during voir dire that they would convict applicant if the gun was in his
truck but was not physically in his possession. Vol.4 P.177 L.20-21. The prosecutor
pounded this point into the jurors minds until it was literally the last words they_
heard. "Its his trick, Its his truck." Its his truck before they begin to
deliberate. Closing arguments P. 178 L.24-25v "...It's his vehicle. .There is no
question. NONE.’ we are beyond a shadow of a doubt. The vehicle was h'is. P. 179
"...It's registered to his parents', but it's his truck. That's his truck (remember
the jury committed to convict if the gun is in his truck)... Because it was in his
vehicle that he was driving..the gun was_ in his truck. P. 180 Lans. Ch. 25 Its his
truck.`` P.182 Driving his truck, within one minute of the jurors being excused to
begin deliberation.
Because of these actions of the prosecutor, applicant was denied his 6th and
14th Constitutional Amendments- right to a fair and impartial trial and jurors. For
these reasons this writ should be granted and a new trail ordered.
HR'OUND OF ERROR NO. 5: THE PROSECUTOR DENIED APPLICANT A FAIR TRIAL BY
PAINTING A FALSE PICTURE, USING FALSE TESTIMONY AND, EV_IDENCE TO GBTAIN A
CONVICTION wHICH DENIED APPLICANT A FAIR AND IMPARTIAL TRIAL IN VIOLATION OF
APPLICANT'S 6TH AND 14TH AMENDMENT RIGHTS OF THE U.S. CONSTITUTION.
STANDARD OF REVIEw: PYLES Vs JOHNSON, 136 F.3D 986,996 ('STH CIR. 1998) TO OBTAIN A
REVERSAL BASED UPON PROSECUTGR'S l|SE OF PERJURED TESTIMON¥ OR
FAILURE vTO CORRECT SUCH TESTIMONY A HABEAS PETITIONER MUST
DEMONSTRATE THAT 1) THE TESTIMONY wAS ACTUALLY FALSE, 2) THAT
STATE KNEw IT wAS FALSE AND 3) THE TESTIMONY wAS MATERIAL.
In this case the State had the burden to prove three essential elements beyond
a reasonable doubt. 1) that applicant was a convicted felon within the last five
years .or still on parole; 2) that he was in possession of a gun; 3) the gun was a
firearm. The first element was self proven because applicant signed a stipulation
that he was a convicted felon still on parole at the time of'the offense. Vol. 6
P. 17 Ex. 14. Accordingly the state only had to prove the two remaining elements to .
'be entitled to at guilty verdict. The record verifies the prosecutor used false
testimony and false evidence to prove them. Then maximized the effect of the false
evidence had on the verdict by informing the jury they were not required to base
their verdict on proof beyond a reason doubt. Vol. 4 P. 165 L.12-15.
As previously shown the prosecutor had hand picked his jury to fit his mold. A
jury that had committed themselves to convict applicant if the gun was found in
applicant' s truck. Vol.3 P.41- 44. Additionally committed themselves to convict
applicant of possession of the gun in his truck if someone.else testified it was
their gun. P.65-70;
l Now to establish the prosecutor knew each time he stated or a witness testified
the truck or vehicle belonged to applicant was false.' The State's first witness
Deputy Terry-v Young testified on cross-examination v(Vol.4 P.72-73 L.24-25,1-5) that
applicant's father was the registered owner and not applicant. Because this witness
knew before trial it was not applicant's truck the prosecutor is legally accountable
for this same knowledge. See Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.1977).
Therefore the prosecutor knowingly and intentionally had officer Young commit
aggravated perjury by carefully manipulating his testimony, by having him testify
that the registered owner was Greer and it was applicant's truck. Vol.4 P.31. L.1-2
P.32 L.10-14,P.33`` L.7-8 Q. weapons drawn pointed at the Defendant's truck? A. Some
did, yes sir. P. 34 L.24-25 you said earlier, there was nobody else in Defendant's
truck, right? P.35 L.1 That's correct sir. P. 56 L.13-16.
On cross-examination the false statements'of~the prosecutor and perjured
testimony was fully exposed by proving the truck was owned and registered to
applicant's father 'M' applicant. F.72-73 L.24-25,1-5. Not to be impeded by the
truth, the prosecutor once_ again had Young confirm the truck was applicant’s. Vol.4
P.154 L.21-25 P.15_5 L.1. The prosecutor also had officer ware confirm under oaths
that the truck was applicant's. Vol.4 P.158 L.1-3. The prosecutor begin to embed and
multiple the impact this false evidence would'have on the verdict by compiling
credibility for this lie, by falsely stating applicant's only witness testified that
it was applicant's truck. Vol. 4 P. 179 L.1-2. "Monishia told you that. It‘ s
registered to his parents, but that' s _lis_ truck. That-' s h_i_§ truck." The record is
"_v_O_IL'L! This testimony does not exist. A classic example of telling one lie to cover
up for another lie. The prosecutor then maximized the vital and key role this false
testimony and evidence would have on the jurors' deliberation to secure a guilty
verdict. By simultaneously reminding the jurors of their commitment during voir dire
and how this false evidence has decided this for them that applicant is
guilty. Vol.4 P.179 L.10-15 “.’..the lone issue in front of you 'is _M po_s_sg;i_grl.
There can be' no dispute. Again, we are there beyond a shadow of a doubt that``this
man was exercising care, custody, control or management over that pistol. w_e _I_<____now
embed this false evidence into the hearts, minds. and souls of each juror to
exacerbate the influence it would ultimately have on their verdict. The prosecutor
pounded it until the very last minute.v P.180 L.25.`` P.181L.1 "It's his truck. P.182
Lans. Ch. 22 "...driving his truck..." The fact that it was applicant's truck was still
ringing in the jurors ears when they were released.
Additionally the record verifies the prosecutor painted a false picture of the
evidence that he used to prove the second element of the offense, which is the gun
was ``a firearm. The prosecutor stated to the ljury this elements is self
proven. Therefore, you need not concern yourself with this element. By stating the
defendant signed a stipulation that it was a'firearm. Vol. 4 P. 164 L.5-7: "Because
you k__now that was a firearm because that was stipulated to..."
Once again the record verifies this evidence does not exist. The prosecutor
painted a false picture of the evidence to prove his entire case. e. g. possession of
a firearm. See Pearson v. State,_ 649 S.w.2d 786,789 (Tex.App.Forth worth
1983)(“Certainly, we know reversal must follow where the prosecutor deliberately
presents a false picture of the facts by knowingly using perjured testimony. Citing
Means v. State, 429 S.w.2d 490 (Tex.Cr.App.1986).").
The jury had sworn to follow the law and was left but one choice to vote
GUILTY, GUILTY, GUILT¥---12 times unanimously! There can remain no doubt that using
false evidence to prove the only two remaining elements rendered applicant's trial
fundamentally unfair. Also that there exist a reasonable probability that this
wealth of false evidence effected the judgment of the jury.
Prosecutor next painted a false picture of the evidence for two reasons: The
first reason: lTo cover up the fact that there was three jackets in the truck, a red
flowery satin jacket, 2) -a camouflage jacket 3) a black leather jacket. . The
second reason:-To inject his own opinion that applicant's only witness was a
liar. Vol. 4 P. 180 L.‘13-14 why? And we know beyond any shadow of a doubt Monishia
lied and -lied and lied. Daggan v. State, 778 S.w.2d 465,469 (Tex.Cr.App.1989)("Nor
does it matter that the falsehood goes merely to an issue of credibility. See N_aLe,
surpa ("A lie is a lie no mater what its subject...").
There was three jackets in the truck applicant's camouflage jacket with hood on
10
it Vol.4 P.128 L.12-13. The red flowery ‘satin jacket Ms. Campbell was -
wearing§ P. 128 L.8-9. Also the black leather jacket the gun was allegedly
in. Prosecutor needed to prove there was only two jackets in efforts to hedge the
evidence to secure a conviction. Therefore, prosecutor repeatedly had his witnesses
falsely testify that the jacket Ms. Campbell was wearing was
camouflage. R. Ledesna. P.83 L.1 P.144. L.19. '
During closing arguments the``prosecutor used this false evidence to persuade
the jury that applicant's only witness was a liar. P¢166 L.17-19 _"...she said she~
was wearing a different jacket that day. She wasn't, she in fact was wearing a
camouflage jacket._" To establish tha-t the aforementioned testimony is false simply
view the video which establishes the state knew the witnesses'_testimony and the
prosecutors arguments were false. _ ``
Any reasonable likelihood of the effect of``this overwhelming false evidence may
not have had an injurious effect on the judgment of the jury was placed beyond
reproach by the prosecutor committing the structural error of falsely telling the
jury their verdict did not have to be based on proof beyond a reasonable
doubt. Vol.4 P.165 L.12-15. The chance of a fair trial disappeared like one drop of
water on a red hot skillet "poof."
' what really makes the prosecutor's_ action so intolerable is the fact he had the '
evidence (that the truck did not belong to applicant) which destroyed his theory of
conviction and he had a duty to not mislead the jury but chose to repeatedly paint a
false picture to secure a conviction. Brow v. Borg, 951 F.2d 1011,1015 (9th
Cir,1_991); "see also U.S.-v. Blekey, 14 F.3d 1557,1560 (11th Cir.1994)("[A]
prosecutor must refrain from improper methods calculated to produce a wrongful
conviction."). Actually there is more than the required reasonable doubt that the
false evidence effected the jury verdict to require'reversal. westly v. Johnson, 83
F.3d 71``4,726 (5th Cir. 1996). ' -
The prosecutor use of false testimony to prove all the remaining elements then
falsely telling the jury that the proof did not have to be beyond a reasonable doubt
denied applicant his right to a fair and impartial trial in violation of the 6th and
14th Amendments of the U.S. Const. Therefore, this_ writ should be granted and a knew
trial ordered. ``
GROUND OF ERROR NO. 6: THE PROSECUTOR DENIED APPLICANT A FAIR TRAIL IN``
VIOLATION OF THE 6TH AND 14Tli AMENDMENTS OF THE 'U.S. .CON_ST. BY MAKING
MISSTATEMENTS OF THE LAw. 4
STANDARD -OF REVIEW: ROSE V. JOHNSON, 141 F.SUPP.Zd 661,707 (S.D.TEX.ZOOl): "IN
DETERMINING wHETHER THE PROSECUTOR'S REMARKS PREJUDICF.D
11
DEFENDANT'S SUBSTANTIVE RIGHTS, THE COURT ASSESS (1) THE,
MAGNITUDE OF THE STATEMENTS (2) THE EFFECT OF ANY CAUTIONARY
INSTRUCTIONS GIVEN, AND (3) THE STRENGTH OF THE EVIDENCE OF THE
DEFENDANT'S``GUILT."
The prosecutor misstated the law during voir dire regarding applicant's 5th
Amendment right to remain silent and not tes'tify. Vol.3 P. 85 L.7-9. MR CALVERT: You
might incriminate somebody else right? Can anyone think of another one? Then the
prosecutor misstated the law which involves applicant's most substantial structural
right which is so pre``cious that it violates the very foundation of American citizens
right vto trial by jury is based upon. That the state must prove their guilt "beyond
a reasonable doubt". Vol.4 P.165 L.12-15. '...you are the finders of fact. You can
find these facts and add them up. It does not have to be beyond a reasonable
doubt‘..." Bear in mind mat this point in the trial the jury charge had already been
read. Also that the judge gave this is seal of approval by not correcting it.
3 Applicant will concede at this point his counsel did not object to either of
,these misstatements of law. But because these remarks of the prosecutor are
manifestly improper and violates mandatory statutes that the prosecutor will not
misstate the law to the jury or engage in improper conduct to obtain a wrongful
conviction, as such this error was not waived.l wills v. State, 785 S.w.2d 378, 385
(Tex.cr.App.1989): b t '
"That is, jury argument error will not be waived»for failure to object where
the argument is manifestly improper, or violates some mandatory statute, or
injects some.new fact harmful to the defendant‘s case. Mathews v. State, 635
S.w.2d 532,539 (Tex.Cr.App.1982); walthall v.State, 594 S.w.2d 74
(Tex.Cr.App.1980). In making the determination of whether a statement is
manifestly improper, harmful prejudicial, courts are to look at the record as
a whole." '
By the prosecutor seeking the jury to base their verdict on less evidence and
proof than beyond a reasonable doubt is an illegal method to secure a wrongful
conviction. See U.S. v. Blakey, supra. at 1560; United States. v. Rodriguez, 765 F.2d
156,159 (11th Cir.1985). It's manifestly improper to falsely state the law regarding
applicant's U.S. 5th Amendment. This violation in conjunction with the request that
the jury can base its verdict on less than reasonable doubt are manifestly
_improper. These remarks and the closing arguments were not only objectionable but-
were clearly improper, For these comments to be considered harmless the evidence
against applicant must be overwhelming. U.S``. v. .»B'-l:~akey,- supra. at 1560-61. As
thoroughly explained in ground of error~-No._£``;. The evidence is a far cry from
being overwhelming. This error of the prosecutor should be considered a structural
error due to the fact it effects the framework within which 'a trial must proceed
12
rather than simply an error in the trial process itself. Pyles v. Johnson, supra. at
993 ("Structural error is error 'effecting the framework_within. which a trial
proceeds itself.’ Fulminante, 499 U.S.' at 310, 111 S. Ct. at 1265. By it's very
nature, structural error 'def[ies] analysis by 'harmless error' standards. Id at
309,* 111 S.Ct.at 1265.'"). Furthermore this error (violation of Texas Penal Code
2.01) was reasonably calculated to injury applicant by denying him his due process
rights to a fair trial in violation of the 14th Amend. of the
U.S. Cons'titution. Moore v. State, 848 S.w.2d 920,922 (Tex.App.-Houston [1st Dist.]
1993). Additionally bear in mind g cautionary instructions M given. Because the
error instructed the jurors they couldn based their verdict on less proof than the
law requires, there is a reasonable probability that the results of the proceedings
would have been different absent this error. Therefore, th=is writ should be granted
and a new trial ordered.
GROUND OR ERROR NO. 7: THE PROSECUTOR ILLEGALLY COMMENT-ED ON APPLICANT'S RIGHT
TO REMAIN SILENT WHICH DENIED APPLICANT HIS UNITED STATES‘ CONSTITUTIONAL 14TH
AMENDMENT RIGHT TO A FAIR TRIAL. '
GROUND 0F ERROR NO. 8: THE PROSEC\ITOR'S MISSTATEMENT OF THE LAw REGARDING
APPLICANT'S RIGHT -T0 REMAIN SILENT wAS ILLEGALLY USED TO POISON VENIREPERSONS
TO DENY APPLICANT 6TH AND 14TH AMENDMENT RIGHT TO A FAIR TRIAL.
This is the very unique case in which Applicant's Fifth Amendment right to
remain silent (not testify) is placed in a real peril. Because the venirepersons
(jury) will be informed before trial begins that applicant is a convicted
felon. Therefore, applicant is in grave danger of being tried and convicted for
being a criminal in general. Vol.3 P.90 L.5-13: "VENIREPERSON NO. 43~: I think where
I struggle with it is that each--each on its own, I probably could; but when you put
the two together, you know, having the past felony and then choosing to not speak
for himself, each one erodes the credibility. So, I think it becomes easier in my
mind to prove the--without reasonable doubt, that there was a law broken because
each one promotes a little bit more on top. so, it becomes a little more difficult."
P.91 L.3-9. VENIREPERSON NO. 39: I just couldn't say. I would try very hard not to
hold that against him; but, especially, you know, having a past felon; and if_
- he's---it would be very--psychologically, I don't think I can. It would--I'm afraid
1 might tend to hold it against him. And if his lawyer is telling him that, get a
new lawyer."
As such any comment by the prosecutor that applicant may have other felony
conviction(s) or have something to hide would be highly prejudicial thereby denying
applicant a fair trial. when judging the actions of the prosecutor bear in mind by
13
his own admission he is both a seasoned attorney and prosecutor. P.91 L.12-13
"...Ms. Nelson, because I'm somebody who's been--I've done both'jobs. I've been a
criminal defense attorney, too."
Therefore, the prosecutor was well trained in the effects his direct comments
and alluding to others would have on this jury panel. Because of his training his
actions were strategically designed to achieve the desired results.
Ironically just seconds before the State begins speaking on the Fifth Amendment
a venireperson starts speaking._``_.about his roommate having a firearm in his possession
and he knowns 'he is not suppose to have a firearm it's his fault for not
telling. Because appellant did not tell his is guilty of‘possession of the
firearm§ P. 81 L.18-21. VERIREPERSON NO. 48: "...if I know my roommate has a gun in
the house and I' m not suppose to have a firearm in my possession, the that's on
me. I know that he has it in the house."
The prosecutor knew before trial that applicant's main defense was going to be
his girlfriend was going to testy the gun that was in the truck was hers. Vol.4
P. 26 Lans. Ch. 5- 6. The prosecutor quickly seized upon this belief that if you don' t tell
on someone then your guilty. P. 81 Lans. Ch. 22- 23. MR. CALVERT: Sure. Sure. At this point,
through -- and that' s Fair.'}' The prosecutor then pounced_ upon this opportunity vto
strategically implant into the minds of all venireperson's that the 5th Amendment
includes the right to not tell on someone else. P.82 L.8-13. "MR. CALVERT: I
understand. Okay. Can anybody tell me what that is? The Fifth Amendment to the
United States Constitution? The Fifth Amendment is protection against self--"
VENIREPERSONS: Incrimination. This fact and misinterpretation of the law was
solidified and cemented into all lvenierpersons by the prosecutor. P. 85
L.7-8. MR. CALVERT: You might incrimination somebody else, right? Can anybody think
of another one? This soliciting lead to a verireperson to come up with the ideal
that the reason applicant would not testify is he had something to hide. P.84
L.17-18. VENIREPERSON NO. 5: And as a juror, I would look at, okay, what is that
person afraid to say on the stand? what are they hiding?
The prosecutor quickly gave this ideal his seal of approval. P.84
L.20-21. "MR. CALVERT: Sure. And absolutely. That's a fair way to feel. This ideal
that applicant had something to hide and the prosecutor would bring it out on
cross-examination, -was hopelessly embeded into all venireperson".s minds by seizing
the moment to implant into~ their minds a real world example of some things that
applicant may wish to hid'e. (Bea'r in mind at this point the prosecutor had secretly
recorded his interview with Ms. Campbell Vol.4 P.126 L.2-5 as such he knew that
14
Ms. Campbell was going to testify that ~her and applicant were having a heated
argument). The following " event took place Vol;3 P. 86 L.18-15 P. 87
L.1. MR. cALvERl;v L'et me--that's absolutely let me kind of give you a real world
example. we_tried a case in here, I guess just a week or two ago where a guy was
charged with the offense of assault, okay, on a girlfriend. And he assaulted--or had
been accused of assaulting not one, but two other girlfriends previously, right? And
there was a real danger that if you testify and say something, it might open the
door to us getting into these other girls right. The prosecutor knew that the
evidence was going to reveal this heated argument. The prosecutor capitalized and
carefully implanted this seed into the jurors' mind that applicant may_have also hit
his girlfriend and this is the reason 'he may not testify. He was scared this may
come out on cross-examination.
_ At this point in the jury selection the entire jury pool was hopelessly
poisoned beyond rehabilitation, no amount of objections or curing instruction(s)
could have insured applicant would receive a fair trial. No court has better made
this clearer than in the opinion ill greg v. Frgghagf Corpgration, 554 F.2d 1304;
1310 (5th Cir. 1977): ("Furthermore, the cleansing effect of the cautionary
instructions in the case is dubious for, as the trial judge himself observed during
‘trial, ‘[Y]ou can throw a skunk into the jury box and instruct the jurors to not
smell it but it doesn't do any good."). See also Hicks v. State, 815 S.w.2d 3299,
303 (Tex.App.-Houston [1st Dist.] 1991).
The prosecutor's comments and lack of any curing instructions which by the way
would have been totally worthless which combined to deny applicant a fair trial. As
such these errors of the prosecutor's denied applicant his 6th and 14th Amendments
right to a fair trial. Therefore, this writ should granted a new trial ordered.
GROUND OF ERROR NO. 92 PROSECUTOR MISCONDUCT MAKING IMPROPER JURY ARGUMENTS
DENIED APPLICANT A FAIR TRIAL IN VIOLATION 0F THE 6TH AND 14TH AMENDMENT 0F
THE U.S. CONST. '
STANDARD 0F REVIEw: U.S. V. INSAULGARAT, 378 F.SD 456,461 (5TH CIR. 2004):
"IF AN IMPROPER REMARK wAS MADE, WE MUST DETERMINE wHETHER THE REMARK
"PREJUDICED THE DEFENDANT'S SUBSTANTIAL RIGHT." MUNOZ lUNITED STATES V. MUNOZ,
150 F.30 401 (5TH CIR.1998)] 150 F.SD AT 415. THE PREJUDICE DETERMINATION
INVOLVES "(1) THE MAGNITUDE 0F THE STATEMENTS PREJUDICE, (2) THE EFFECT 0F ANYA
CAUTIONARY INSTRUCTIONS GIVEN, AND (3) THE STRENGTH 0F THE EVIDENCE 0F THE
DEFENDANT'S . GUILT." UNITED STATES V. TOMBLIN, 46 F.ZD 1369, 1389 (5TH
CIR. 1995). "THE DETERMINATIVE QUESTION IS wHETHER THE PROSECUTOR'S REMARKS
CAST SERIOUS DOUBT ON THE CORRECTNESS OF THE JURY VERDICT." UNITED STATES
V. IREDIA, 866 F.ZD 114,117 (5TH CIR. 1989)."
Permissible areas of jury arguments have been well established. See Mayberry
15
v. State,`` 830 S.w.2d 176,178 (T'ex.App.-Dallas 1992)("Proper subjects of jury
argument include (1) summation of the evidence, (2) reasonable deductions from the
evidence, (3) answer to arguments of opposing counsel, and (4) pleas for law
enforcement. Alejando v; State, 493 S.w.2d 230,231-32 (Tex.Cr¢App;1973);"
The first jury argument Vol.4 P. 164 L.'4-7: "So, what does this all boils down
to a whole day spent on possession knowingly or intentionally possessing a
firearm. Because you L_n_o_w th_at _v@ g firearm because L_U stipulated tp..." The
,.next involves the burden of proof the State must sustain ton prove its case. P. 165
L.12-15 "You are the finders of fact. You can find these facts and add them up. g
A)_ei pgt__hpg g g beyond _a_ reasonable doubt..=." Additionally the prosecutor
instructed the jury that the vehicle (truck) was applicant's Vol.4 P. 178 L.24-25,
179 L.2,14-15,20-21; 180 L.25; 181 L.1; 181 L.1; 182 L.22. The prosecutor went so
far as t~o- lie to the jury as to what applicant's witness testified to by stating she
witness confirmed twice that it was applicant's truck. P.179 L.1-2.
The State Additional ly instructed the jury on the issue of possession _in that it
_ has already been decided solely based upon the fact the vehicle was
applicant's. P. 179 L.10-15. "...the lone issue in front of you is M_t
possession. There can be pp dispute. Again, we are beyond a shadow of a doubt that
this man was exercising care, custody control or management over the pistol. we know
that. why? Because lt _U _i_rl his vehicle that he ppg driving." None of the,
prosecutor's arguments fits within the- four permissible areas. The first argument is
totally false, there exist m stipulation that applicant consented that thg_gpn w§
a firearm. This first argument was designed and used to lower the State's burden of
proof. F'That the appellant did possess a firearm. The second argument was clearly
prejudicial as it was designed to unconstitutionally lower the State's burden of
proof "beyond a reasonable doubt." This statement denied applicant his substantial
right to fair trial by having a jury base their verdict on L§_S_S LOOF
'(e.g. preponderance of the evidence) than the law requires "beyond a reasonable
doubt". U.S. v. wise, Supra at 152. Also it violated state law; Texas Penal Code
§2.01. There is no escaping the fact that these two arguments were both designed and
did in fact lower the State's burden of proof thereby effecting the jury verdict.
k The last two arguments will be grouped together. These two arguments are
false. The State's very first witness testified on cross-examination that the
vehicle (truck) was owned by applicant's father-and not applicant. Vol.4 P.72
L.24-25 P.73 L.1-5. As stated by the prosecutor because the gun was found in
applicant's truck it was in his possession. As such these two arguments used false
16
evidence to prove yet one more essential.element. The 4only remaining element was
stipulated to. Therefore, the only two remaining elements the prosecutor's arguments
proved them to the jury based upon false evidence. The harm was sealed by informing
the jury the state did not have to prove their case beyond a reasonable doubt.
`` The state's arguments injected new non-existing evidence into the case and
instructed the jury this false evidence and testimony proved their case. As
such these comments cast doubt on the verdict. Each argument nms improper, the
,evidence is unambiguously clear that the cumulative effect of these errors were
designed and did effect the verdict which denied denying applicant a fair trial in
violation of the 6th and 14th Amendments of the 0.$. CONST,
The State's case was extremely ueak. Even .the trial judge agreed that applicant
was never identified (by any officer) before he was simultaneously forcefully
stopped and arrested» at gun point. Vol.4 P.108 L.12-17. The gun and jacket were
illegally not listed on the required inventory sheet. There was no eyewitness. The
gun was not in applicant physical possession. The truck it was discovered in did not
even belong to applicant. The passenger in the truck testified at court ``the gun
belonged to her. Then explained why she had it e.g. for protection as she was
recently the victim of kidnapping and rape. Therefore, the prosecutor's remarks were
prejudicial.l MS. v. Insaulgarant, Supra. at. 461. As such this writ should be
granted and a new trial ordered. `` '
GROUND OF ERROR NO. 10: PROSECUTORIAL MISCONDUCT DENIED APPLICANT HIS 6TH AND
14TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE 0F COUNSEL ON APPEAL.
Applicant is entitled to effective assistance of counsel on direct appeal by
the 6th and 14th Amendments of the U.S. CONST. Lofton v. whitely, 905 F.2d 885,887
(5th Cir¢ 1990); Evitts v. Lucey, 105 S. Ct. 830 (1985). The number one requirement
of presenting any issue on appeal is to be able to point to the record that supports
to the error. Also it's appellant's/applicant‘s responsibility to provide sufficient
record on appeal. Ex Parte Chandler, 182 S.w.2d 350,353 (Tex.Cr.App.ZOOS)("It is the
applicant's obligation to' provide a sufficient record that support his factual
allegations with proof by a preponderance of the evidence.). See' also lgpg;
v. Director, TDCJ-CID, 550 F.Supp.2d 639,642 (E.D.Tex.2005):
"The Fifth Circuit has held that "[a]bsent evidence in the record, a court
cannot consider a habeas petitioner's bald assertions on a critical issue in
his pro se petition (in state and federal court), unsupported and
unsubstantiated by anything else contained in the record, to be of probative
evidentiary value."
Furthermore, see Duggan v. State, 778 S.w.2d 465, 468 (Tex.Cr.App.1989)“
17
"It shall be the primary duty of all prosecutors...not to convict, but to see
that justice is done." Art. 2.01 V.A.C.C.P. This overriding duty falls upon
the prosecutor in' his capacity as the State's representative.in criminal
matters. As a trustee of the State's interest in providing fair trials, the
prosecutor's is ...more than a mere advocate, but a fiduciary to fundamental
principles of fairness.' See Berggr‘ v. Unite_d Sates, 295 U.S. 78,88 55
S.Ct;.'_629, 633, 79 L.Ed. 1314,1321 (1935)." - -
Additionally the Texas appeals courts have consistently ruled on the problem
they face in trying to rule on claims of ineffective assistance of counsel on direct
appeal is the underdevelop'ed record. Goodspeed ' v. State, 187 S.w.2d 390_,392
(Tex.Cr.App.2005). Even when the appeals courts have reversed cases on direct
appeals only to have their decision overturned by the court of criminal appeals due
to the_ record being undeveloped. Bone v. State, 77 S.``w.3d 828 (Tex.Cr.App. 2002);
k by Rylander v. State, 101 S. w. 3d 107,110-111 (Tex. Cr. App. 2003)(In this case, like'the
majority of cases, "the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel' s actions."). :
For these reasons and courts decisions verifying that a undeveloped record is
insufficient to obtain a``reversal on appeal. Therefore, the lack 'of the record of
the conversations of the judge, prosecu``tor, trial counsel and jurors has insured the
denial of an adequate record on direct appeal and now post-conviction proceedings.
By not having an adequate record to support these issues. Tamez v. Director of_
TDCJ-CID, Supra. at 642. '
There are several critical times during the proceedings-that events were not
recorded. The first being, Vol 3 P.5 L.3 (venire panel seated). The trial judge
called ATTENTION: MR. ROBERT CASSENA' Veniremember No.6. As a fellow student and
class member of Texas .A&M University. Additionally a famous sports writer f``or the
local mews paper. The Bryan ``Eagle. The judge made a special speech regarding Mr.
Cessena's renowned accomplishments, then asked the "entire courtroom" for a round of
applause for his close and dear friend that he obviously thought the world of. which
the courtroom gave him. This unrecorded event clearly demonstrated the highly
likelihood this friendship could effect the impartiality of this veniremember that
was seated as juror No. 2 Vol. 3 P. 162 L. 8. This juror was "never" questioned by
counsel or the prosecutor. This is a key inquiry during voir dire. Cadoree v. State,
810 S. w. 2d 768, 789 (Tex. Cr.App.-Houston [14th Dist. ] 1991).
Additionally a critical off-the-record discussion. Vol. 3 P.173 L.20. Applicant
overheard portions of it:.Counsel openly revealed his representation of applicant
represents a severe conflict of interest. Counsel revealed he works with the Brazos
Co. Sheriff's Dept.', as a ride along which entails all of the State's witnesses as
'18
or potential Co-workers. This obvious critical evidentiary support is missing from
the record. This critical evidence would have unambiguously verified counsel's
representation was forcing counsel to serve two masters simultaneously. The-best
interest of his co-workers who's hands he must entrust his very life in. The best
interest of applicant (who interest ends upon the" completion of trial). In which
case to prevail he would‘be forced to creditably expose his co-workers actions were
corrupt, wrong or illegal. These missing records would have alerted appellant
counsel to file as a ground of error ineffective assistance for not questioning this
juror about his relationship with the judge. Montez v. State, 824 S.w.2d 308, 310
(Tex.App.-San Antonio 1992, no prt).. Also file a motion for new trial with
supporting affidavit to fully develop the record of this conflict of interest. which
_' would have been granted. Lucero v. State, 246 S.w.3d 86,94 (Tex'.Cr.'App.2008). The
denial also_ has prejudiced applicant in his post-conviction proceedings. Because he
is force to make bald assertions for ineffective assistance of counsel on these two
issues and the Supreme Court has stated that is inadequate. Cuyler v. Sullivan,
supra. at 1709.
Additional off-the-record discussions took place Vol.3 P.142 L.24 P.165
L.25. This missing word for word conversation involved the judge, prosecutor and
trial counsel. Applicant did not over hear any portion of these conversations yet
this missing records are potentially vital.
Additionally there is the matter of the missing jury note (Vol.4 P.183 L.15-16)
which must be in the record also whether counsel was present and what efforts were
made to secure applicant's presence. It is mandatory that this must be in the
- record. 36.27 supra. see also U.S. v. Muraj, 947 F.2d 520,525-26 (1st Cir.1991).
Now for the most disturbing event that is totally missing from the record. 0nce
the jury begin deliberating they sent out a note requesting to see the video. Vol.4
P.183 L.15. Applicant has included Ex.A. which is an affidavit which basically
states the judge and the Prosecutor remained in the courtroom all spectators were
cleared the judge then sulnmoned all jurors into the cleared courtroom the prosecutor
re-set up his personal lap top with his power point presentation and they all
engaged in a ex parte viewing of the critical inculpatory video with the prosecutor
being their personal operator. Applicant nor applicant's counsel was present. we
know this much that once this private viewing with the Judge and prosecutor was
concluded the jury quickly returned a verdict of guilty. Exactly what all the judge
and the prosecutor said to the jury for sure some words were spoken between them
during this exclusive meeting, all of which are considered illegal ex parte
19
conmlunications. This is an extreme violation of applicant's 6th and 14th Amendment
right to a fair trial. See U.S. v. Smith, supra. at 471:
"It's well-settled that once the jury has begun to deliberate, counsel llll$T be
given an opportunity to be heard before the trial judge responds to any jury
inquiry Rogers v.. United States, 422 U.S..35, 95 S._Ct. 2091, 45 L. Ed. 2d 1
(1975); united States v..widgery, 778 F.2d 325 (7th Cir.1983). This rule is
grounded in.Fed.R.Crim. Proc.43(2)'s [this same requirements is codified in
Texas State Court‘s Tex.C.Crim.Proc. 36.27; Revell v. State, supra.,at 211 and
is mandatory noncompliance is reversal errorl requirement that a criminal
defendant be present "at ever stage of the trial-', the Sixth Amendment's
Confrontation Clause, and the Due Process Clause of the Fourteenth
l Amendment. Thus, unless waived discussion concerning the jury inquiry and
court response must take place on the record in the presence pj_ _tg defendant.
Id. lU.S. v. widgery, supra.] g 327."
Applicant has established~both harm and prejudice due ``to these instances of
prosecutor misconduct therefore, either``these missing portions of the _record be
supplemented and applicant be granted an ou‘t-of-time appeal or a new trial be
ordered.
GROUND 0F ERROR N0. 11: THE TOTALITY 0F THE ACTS 0F PROSECUTORIAL MISCONDUCT``
DENIED APPLICANT HIS 6TH AND 14TH U.S.CONST AMENDMENTS RIGHTS T0 A FAIR TRIAL.
STANDARD OF REVIEw: wESTLEY V. JOHNSON, SUPRA AT 726:
' "[t]HE EN BANC COURT RECOGNIZED AN INDEPENDENT CLAIM BASED ON CUMULATIVE ERROR
ONLY wHERE “(1) THE INDIVIDUAL ERRORS INVOLVED MATTERS OF CONSTITUTION
DIMENSIONS RATHER THAN MERE VIOLATIONS OF STATE LAw; (2) THE .ERRORS wERE NOT
PROCEDURALLV DEFAULTED FOR HABEAS PURPOSES; AND (3) THE ERRORS 'SO INFECT_ED
THE ENTIRE TRIAL THAT THE RESULTING CONVICTION VIOLATES DUE PROCESS. ID.,
[DERDEN V. MCNEAL, 978 F.20 1453 (5TH CIR. )] QUOTING CUPP V. NAUGHTENM,
414 U.S. 141,147, 94 S.CT. 396, 400, 38 L.ED.ZD 368 (1973). MERITLESS CLAIMS
OR CLAIMS THAT ARE NOT PREJUDICIAL CANNOT BE CUMMULATED, ’REGARDLESS OF THE
TOTAL NUMBER RAISED. DERDEN, 978 F.20 AT 461."
1). Before the trial started the prosecutor with held brady material, and
inclusion of the same in the record. e.g. dispatch log, and audio recording of his
interview with Ms. Campbell. This evidence could have\been used to not only to
impeach the creditability of the State's witness, but also to prove the initial stop
was illegal and resulting confiscation of the gun was illegal "n_o_qup case“. Also
this secret recording could have been used to further establish by record references
that the prosecutor used the facts of the case to handpick a jury and commit them to
convicting applicant based upon his mold.
2). The above error was compounde'd“by the prosecutor not producing Officer
Ficke and the CI for. cross-examination. Meledez, Supra, at 328. This is'true because
Officer Ficke prepared the vehicle Inventory Report, therefore, applicant had a
right to cross-examine him. Id. at 326-328. No testifying witness personally
20
identified applicant before he was stopped and arrested at gun point. Only the CI
identification was introduced at trial and then only by hearsay. Therefore,
applicant had a right to cross-examine the Cl. Id. at 328. `` _
3). Additionally the acts of misconduct by the prosecutor were exacerbated by _
the effects``these cumulative errors by misstating the law dealing with applicant's
5th amendment right to remain silent. "he might incriminate someone else." Also by
implanting into they jurors mind to consider evidence that does not exist e.g. that
applicant may not testing because he beat up his girlfriend and he is scared this
might come out on cross-examination if he testifies. Vol. 3 P.86 L.18, P..87 L.1.
4). The prosecutor unconstitutionally used void dire to hand pick a jury to
convict applicant based upon: If the illegal item was found in his truck and is not
in his physical possession and it did not even belong to him (someone else claimed
ownership) it was still in his possession. Vol.3 P.40 L.18. These are the exact
facts of the case. Also bear in mind that the prosecutor hadn already investigated
and secretly recorded his investigative interview with the only defense
witness. Vol.4 P.126 L. 2-5. Therefore, he knew she was going to claim ownership of
the gun. Also that she was going to state that her and defendant had a heated
argument. The facts of his real world example. vVol. 3 P.86 L.18. All jury members
were committed to convict applicant based upon the state's theory and mold of
conviction. The ones that were not were struck. Vol.3 P.46 L.3.
These acts prejudiced applicant as it denied him) a fair and impartial
jury. Adkins v. State, Supra. at 789. lie reminded the jurors of their commitment
during closing arguments that they would convict applicant even if the gun was not
in his possession. Vol.4 P.177 L.20. _
5). The prosecutor not only failed to correct false testimony and evidence but
compounded its unconstitutional effects by actually using it to prove his case. Then
consistently reminding the jurors of the false evidence. Then exacerbated its effect
on the verdict by flat out lying to the jurors by telling them applicant's only
to convenience the jurors if she said its his truck then it must be his truck. Then
immediately explained to the jury that the gun was in his truck so possession has
been decided for you. P. 179 L.10-15. The false evidence was literally hammered into
_the' jurors minds until they were released for deliberation. The prosecutor knew if
he corrected this false evidence it would destroy his legal theory and his committed
jurors to so convict. Brow v. Borg, supra at 1015, Adkins v. State, Supra. at
789. T_he record verifies that he used false evidence to secure a wrongful
21
conviction. Blake , surpa.-at 1560. This error has a cumulative effect with the
other instances of misconduct. `` '
6). Next is the flagrant disregards for anything resembling ethical
conduct. The prosecutor lied to the jury: "[y]ou know that was a firearm because
that was stipulated to..." No such stipulation exist. In this case the prosecutor
'had to prove three elements: 1).Applicant was a convicted felony; 2) He possessed a
gun, and 3). the gun was a firearm. The first element was actually self proven by an
actually signed stipulation. _The last two were proven based upon false _and
nonexisting evidence. _ _
7). This instant of misconduct spotlights the malicious intent of the
prosecutor by abandoned his role as anl officer of the court and taking on the role
of a criminal by violating the Texas Penal Code 2.01. Leaving nothing to chance he
, told the jury your verdict does not have to be based on proof beyond a reasonable
"'_"doubt. Vol.4 P. 165 L.12-15. The cumulative effect of this errors insured that any
chance that applicant had at a fair trial by an impartial jury disappeared like
smoke in wind storm. . . » .
8). Now the matters of misconduct that has effected applicant's right to effective
assistance of counsel on direct appeal and now in his post-conviction proceedings in
both state and federal court. As thoroughly explained, numerous portions of the
trial records are missing. Also the recorded interview with Ms. Campbell that the
prosecutor used to coerce and intimate her into testifying the wayhis wished. This
is yet one more criminal violation (Tex.P.,C.36.05) the prosecutor used to secure the
conviction. Also the missing jury note. Additionally the most flagrant act of
misconduct, extensive ex parte communications with deliberating jurors. Vol.4 P.183
L.14-16. what was said by the judge and prosecutor to the jury after the begun
deliberation. while . the prosecutor and judge provided them an inclusive private
extended viewing. The prosecutor remained as the jury's personal video operator on
his person lap top. whether counsel was present and what steps were taken to secure
the presence of‘applicant. All this must be contained in the record. 36.27
Supra. Harm and prejudice is assumed and reversal must follow. Revell v. State,
Supra.'at "211; word v. State, 206 S.w.3d 646,650 (Tex.Cr.App.2006). The missing
vital portions regarding off-the-record discussions, denied appellant counsel the
necessary evidence and knowledge to file a motion for new trial to further develop
the record. Counsel would have been entitled to a hearing to do so. Lucero v. State,
Supra. at 94. Had this been done and a full and a fully developed record presented
on direct appeal there is a reasonable probability the results would have been
22
different. Stricklapg v. wa§hington, 104 S. Ct. 2052 (1984). Also this of lack the
mandated record is now prejudicing applicant's ability to prove his counsel's
conflict of interest. Cuyler v; Sullivan, Supra. at 1709, and other issues. lame;
v. Qj£gctor’ of TDCJ-ID, Supra. at 642. The totality of the cumulative effects of
these acts of prosecutor misconduct denied applicant's his right to a fair trial and
effective assistance of counsel on direct appeal and now his chance to present an
adequate record during post-conviction proceedings. All in violation of the 6th and
14th Amendment of the U.S. Constitution.
eRouND oF E"RRoR No. 12: THE TRIAL couRT DENIED APPLICANT HIS siu AND 14TH
AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL BY NOT PROVIDING
COUNSEL A COMPLETE COPY OF THE TRIAL RECORD.
As previously shown there was four off-the-record discussions. Also missing is
the sustained lengthy session of ex parte communications between the 'judge,
prosecutor and deliberating jurors. also the missing jury note, if trial counsel was.
present, and what steps were taken to secure applicant's presence. U.S. v.$mith,
Supra. at 471. The missing dispatch log(s) and secret audio recording of the defense_
witness. Vol.4 P.126 L. 2-51 These missing records denied appellant counsel the
knowledge and record references to file an adequate motion for new trial with an
affidavit in support, alleging but not limited to counsel's representation was under
a severe conflict of interest. Cuyler, Supra. why counsel failed to question Robert
Cessna about his relationship with the judge. Had counsel did so; a hearing on his
motion for new trial would have been granted. Lucero v. State, Supra. at 94. This in
turn would have provided appellant counsel the necessary record to raise these
issues and others. The appeals court with the necessary records to rule on these
issues and others. See R lander v. State, Supra. at 110-111.
Additionally missing is the stipulation that provided the prosecutor the right
to introduce the video. Vol.4 P.34 L.12-17. The stipulation that the gun was a
firearm Vol.4 P. 164 L.6-8; Also a copy of the alleged evidence sheet Vol.4
P.156.L.13-17. lt is well settled law that counsel on direct appeal can not argue
outside the record. Also that the state of undeveloped record often requires the
appeals court(s) to deny claims. Id at 110-111. '
Had appellant counsel- had these missing records he could have brought these
issues on direct appeal. Therefore, there is a reasonable probability the results of
the direct appeal would have been different. Strickland, supra.
GROUND 0F ERROR NO. 13: APPLICANT wAS DENIED HIS RIGHT T0 EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HIS 6TH & 14TH AMEND. 0F THE U.S.CONST.
STANDARD 0F REVIEW: Strickland v. washihngton, 466 U.S. 668,104 S. Ct. 2052,2064-74,
80 L. Ed. 2d 674 (1984):
23
Claims of ineffective assistance of counsel in a criminal case is evaluated
under the two-prong test set forth in the U.S. Supreme Court's decision in
Strickland. Strickland v. washington, 104 S. Ct. 2052 (1984). To succeed on a
claim of ineffective assistance of counsel, the defendant must shows (1) that
his attorney's representation fell below an objective standard of reasonable-
nes_s; and (2) that due to counsel's unprofessional errors the results of the
proceedings would have been different. Strickland, 466 'U.-S. 687-88. A court
must indulge a strong presumption that counsel' s conduct falls within the
wide range of reasonable professional assistance. 80 L. Ed. 2d at 682. Strategic
choices made by counsel after a through investigation of the law and facts
relevant to plausible options are virtually unchallengeable, and strategic
choices made after less than a complete investigation are reasonable precisely
to the extent that reasonable professional judgments support limitations on an
investigation. The Strickland standard applies to a claim of ineffective
assistance of counsel arising under 6th and 14th Amendment of the U.S. Const.
``as well as Article 1 §10 of the Texas Const. Hernandez v. State, 726 S.w.2d 53
(Tex.Crim.App.1986). while the courts normally looks to the "totality of the
representation" and "particular circumstances of each case." In evaluating the
effectiveness of counsel, Ex parte Raborn, 658 S. w. 2d 602, 605 (Tex. Cr. App.
1983), we have also found that under some circumstances a "signal error of
omission by ...counsel [can] constitute[] ineffective assistance of counsel.
Ex Parte Felton, 815 S. w. 2d 733, 735 (Tex.Cr.App.1991). "
Applicant will now by number set forth all the reasons counsel was ineffective.
1). Counsel's was under a severe conflict of interest the entire time he was
representing applicant. The evidence to establish counsel's divided loyalties was
revealed in an off-the-record discussion. Vol. 4 P. 173 L.20. The essence of this
discussion is set forth on Pages one and two of this memorandum. In short all the
State witnesses are counsel's co-workers and making them look bad or exposing them
to disci_plinary, civil or criminal charges in efforts to vigorously fight for
applicant rights would have created a hostile work environment. white v. Reiter,
supra.'at,599.
Applicant seeks an evidentiary hearing to develop the record on this aspect of
ineffective assistant so he can do more than make a bald assertion which is not
enough to be entitled to relief. Cuyler, supra. at 1719_. Accordingly when the'
record is supplemented with the evidence applicant will supplement this ``issue.
2) ."Counsel failed to properly preserve applicant's motion to suppress or urge a
timely hearing before trial. To avoid duplication this aspect of counsel is fully
developed in attached grounds of errors 14-16. “
3). Counsel failed to object when the state failed to produce the video (DVD) 20 ‘
days before trial as the law requires. Counsel did not receive the video until
' 10-30-12 which was only 14 days before trial. The trial judge strenuously warned the
prosecutor if he did not provide this video to counsel in a timely manner he may not
allow it to be used at trial. Vol.2' P.5 L.20-22. Therefore, counsel was given
red flag to object to the untimely production. Had counsel objected. This objection
24
would have been granted if not it would have been an abuse of
discretion. T.C.C.P. Rules 38.22(3)(5)(a), 39.14. Counsel's objection would have
allowed him at least 6 more days. which would have provided him time to retained or
consulted with an expert witness. which would have quickly lead to the discovery
that the video has been seriously tampered with because it was commingled with three
other Video's. This would have alerted counsel to object to its admission because it
was no longer in its original state. Then counsel could have proven Brazos county
did not have a Evidence control system. Therefore, they could not even begin to
establish the proper chain of custody.*Cuba ‘v'. State, 905 S.w.2d 729,735
(Tex.App.-Texarkana _1995). As such this video would have been and is totally
inadmissible, withoutr`` this evidence there is a reasonable probability the results of
the proceedings would have been different. Before the jury reached their verdict
they requested to see this. video. Vol. 4 P.183 L.15. As`` such the video was the linch
.pin that resulted in the guilty verdict. 1
4). For agreeing to allow the State to enter a redacted version of the t
inculpatory video and according to records signing a stipulation _to so allow them to
do so without applicant's knowledge. Applicant established in ground of error 16
that the video was totally inadmissible. See Lyons v. McCotter, 770 F.2d 529_,534
(5th Cir. 1985)("To pass over the admission_of prejudicial and arguably inadmissible
evidence may be strategic to pass over the admission of prejudicial and clearly
inadmissible evidence, as here, has no strategic value."). t
Furthermore, the trial judge thoroughly warned-the prosecutor and counsel that
.any stipulation once trial begins must b_e i_rl writing. Vol. 4 P.19 L.20-22. In a
criminal case the stipulation must be in writing signed by the applicant in open``
court and approved and signed by_ the judge and filed in the record.' Ellard v. State,
650 S.w.2d 840,841 (Tex.Cr.App. 1983). See also Tex.C.C.P. Art 1.15. The record is
void of any such stipulation. Even in the most liberal interpretation the complete
terms‘of the stipulation must be in the record. If the complete terms don't appear
in the record the stipulation is void and_ of no effect. See 'Howeth v. State, 645
S.w.2d 787,789 (Tex.Cr.App.1983)("The record of appeal is as bare as Mo_ther
Hubbard's cupboard concerning what the "contents" l of the ordinance might
be...nonetheless, the stipulation must be complete as~ to``the object of the
stipulation."). Counsel was so grossly ineffective that he not only did not object
to obviously inadmissible evidence but agreed to allow it to be admitted by illegal
means. Id. at 789; Ellard v. State, Supra. at 481. The exact terms of this agreement
of this stipulation is obviously unclear. Vol.4 P.' 34 L.12-17 "Judge the parties
."\
25
have a stipulation regarding the publishing of this exhibit. And pursuant to this
stipulation --- Le__ca_n_m:_t tmit i_n _th_e_ record _l_a_t_L [never to do so]. MR. GRAY: we
have an lagreement. P.142 L.18-25. "MR. CALVERT: Judge, at this point in time, we
have previously offered States's Exhibit No. 3, pursuant to a stipulation with the
Defense, certain portions of the audio were redacted.' [we have no ideal what
portions were agreed to be redacted] For these purpose now, [It's obvious this
stipulation has ever changing terms] we are going to offer all of the State's _
Exhibit No. 3 with the audio included." The record verifies the terms of' this
alleged stipulation were not in the record and were obviously ever changing to what
ever suited the prosecutor. with no objectios. Therefore, this stipulation is
void. lloweth v. State, Supra. at 789. without this evidence there is a reasonable
probability the results of the proceedings would have been different.
5). Counsel failed to object when the State failed to produce either officer Ficke
or the CI. for cross-examination. Applicant had a constitutional right to ``
cross-examine officer Ficke because he is the actual person that prepared the
Vehicle Inventory Report. Meledez, Supra at L.Ed.2d 326-328. This denied applicant
his right to subject this report to adversarial testing it in ~the crucible of
cross-examination. Id at 326,328-329. This would.have determined but limited to
whether the- gun and jacket were actually listed on a separate evidence sheet as'
stated by counsel but does not exist in the record as is required by policy.\Also
the non-existing chain of custody. This would have provided the necessary evidence
applicant needed to have the motion to suppress granted. ' »_
Applicant had a right to cross-examine the CI as admitted after the state
_rested their 'case; The only evidence in the record that identifies applicant in the
vehicle is the CI Vol.4 P. 110 L.7-12. Counsel had articulated all the reasons he
‘had a legal right to cross-examine the CI: Vol.4 P.108 L.2-11 "...[o]nly that the
person is reliable. we don't have any specific information as to, you know, the
description of my client, large male.'lle was wearing a coat. He wasn't wearing a
coat. The vehicle was a-black truck. small black truck. whether there was an LP--I
mean, there's just--we just don't know these things." Then the trial court
sanctioned applicant's constitutional right to cross-examine the CI. Vol.4 P.108
L.1-llc "THE COURT: All right. I'm a little more concerned about the fact that he
was never identified in the vehicle, merely by a description of a confidential ~
therg gl_d i_d_entify him pefore they M _th_e vehicle M."‘ Counsel once again
articulated the reasons he has a right to cross-examine the CI. Vol.4 P. 111
26
L.12-15. "...we don't know about any of the specifics, how he described my client,
the vehicle, any of these things." '
v 4 Counsel at this point knew without this information there could have been no
stop, no arrest, no search no gun and no 7case. Also knew applicant had a
constitutional right to cross-examine the CI and he had the judge's support, yet he
still failed to object. Meledez, Supra. at 328-329. This decision can not be
considered trial strategy. Strickland, Supra. The CI's information which is the most
vital evidence in the entire case. without it the police had no ideal applicant was
any where around, lwhat he was driving _and more importantly that he had a pending
arrest warrant that was only 12 hours old that only the City of Bryan Police
Department were aware of, Vol.3 P.167 L.6. See also Vol.6 Ex. #1. without this vital
information there would have been pp §tgp, pp arrest and pp search, pp gup, pp
pa§e! Therefore, Applicant had a constitutional right to test the CI's description,
and how he obtain this knowledge in a cubical of cross-examination. Meledez, supra
at 328-329. Even`` if it would have had to be in camera. Bodin v. State, 807 S.w.2d
313,318 (Tex.Cr.App.1991). Due to counsel's lack of objection which would have been
sustained if not the ~judge would have abused his discretion. Id. at
328-329. Applicant was denied his constitutional right to subject this vital
evidence to adversarial testing. These two witness were the very foundation of the
state's case. without the hearsay evidence supplied by the CI_ there would have been
no stop;arrest or subsequent confiscation of the gun. without a proper Vehicle
inventory Report the gun would have been ruled illegally obtained and
inadmissible. Colorado v. Bertine, 107 S.Ct. 738,743-44 (1987). Because this is the
very nexus of thel evidence the State's case is founded upon and it was never
subjected to adversarial testing, this error of counsel is a structural error it is
not subjected . to a harm analysis. Gochicoa v. Johnson, 53' F.Supp.2d 943,950
_(w.D.Tex.1999)("In this Court's opinion, the error is instead a structural one,
Abecause the error committed by counsel were so egregious that the prosecution's case
was never subjected to meaningful adversarial testing. Thus, analysis under the
prejudice prong of Strickland is not necessary.").
Also this one error of counsel alone is enough to find counsel ineffective. §_
'Parte Felton, Supra. at 735. '
6). Failed to object to hearsay statements and request an immediate ruling.
The State was allowed to prove that applicant was the driver of the truck by
hearsay testimony which was the most essential evidence in the entire case. If this
27
evidence was objected to and a ruling obtained the stop, arrest and subsequent
search would have been ruled illegal, or at least this issued would have been
' preserved. t '
Officer Terry Young testifi-ed, that he could not and naturally did not identify
applicant as the driver. Vol.4 P. 58 L.18-19. "I may have been about aggg_lg pp g
behind everyone else._" Later on cross-examination by double hearsay that someone
else learned from someone else that applicant was in the vehicle. Vol.4 P.75 »'
L.8-10. "Investigator Ledesma had received information that Ms. Campbell and
Mr. Greer were together in the vehicle..."
Officer Ledesma testified that he could not and did not identify applicant as
the driver before he was arrested at gunpoint by forceful detention. Vol.4``P. 82
L.2-3. "1 was in the vehicle_a_t t_he ye_ry_ M. _I came in after-- right after the
stop." On cross-examination he admitted the only way he knew applicant was in the
truck was by information related to him by the CI. Vol.4 P.88 7-11. "Okay. Prior to
receiving that call from the confidential informant, you had no_ direct personal
knowledge that Mr. Greer was, ip iac_t,_ _ip _tth particular vehicle~l j_s gl_a_t
correct. L 131 §Lj._ After the state rested their case the judge agreed no one
testified that they personally were able to identify applicant as the driver before
he was arrested. Except by the description given by'the CI. Vol.4 P.108 L.12-17.
"THE COURT: All right. I'm a'little more concerned about the fact that the was never
identified in the vehicle, merely by a description of a confidential informant. And,
yes, there were warrants out,l but they actually have to see him in there and
identify m- before Llle_y_pu_l_l__th_e vehicle M" The state agreed that the'only
evidence in the record that identifies applicant as the driver before he was
arrested at gun point was'the CI's.' Vol.4 P.110 L.7-12.' "[w]e have a known inform-- k
a known person making a presumptive--a legally presumptively reliable tip to law
enforcement that these two people are in this vehicle. That's t_h_e evidence that's i_n
tg record-g f_ar_."_ Therefore, all parties acknowledged that the state was able to
establish applicant.was the driver of the vehicle before he was pulled over only
through hearsay testimony, Also the record clearly demonstrates counsel made no
objection. This hearsay testimony was offered to prove for a fact that applicant was
identified as the driver before being forcibly stopped. Counsel failed to"'object-to
this inadmissible hearsay testimony, he therefore, wholly abdicated his role in_ the
adversarial process, thereby depriving applicant of a fair trial. Gochicoa
v. dohnson, 53 F.Supp. 2d 943,953 ((w.D.Tex.1999). See also Sanchez v. State 243
________9
S.w.3d 57,64-65 (Tex.App.-Houston [1$t Dist.] 2007) ("...counsel...failed to object _
28
to officer Morales‘s testimony as to what the confidential informant told him on the
grounds that it was hearsay...here, the testimony in question did ppt_ reveal the
details pf jgy; information provided tp_Morales."). This hearsay information effected
applicant's substantial rights by allowing the state to prove this essential
elements of case by inadmissible hearsay; Schaffer v. State, 777 S.w.2d 111,113
(Tex.Cr.App.1989). As such this case should be reversed. .
Had counsel objected to this hearsay his objection would have »been granted if
not it would have been an abuse of discretion. See Schaffer v. State, Supra at 113,
See also TEX.R.EVID 801(a). without this hearsay testimony there is a reasonable -
probability the results of the proceedings would have been different.
7). Failed to object to backdoor hearsay statements and request an immediate
ruling. ' _
when the prosecutor artfully asked questions of one witness about another
person's demeanor, this is nothing less than the prosecutor soliciting backdoor
hearsay (indirect hearsay). Vol.4 P.86 L.4-5,8-9.). See Schaffer v. State, Supra at
113 ("..,the hearsay prohibition through artful questioning designed to elicit
hearsay indirectly, in short, "statement" as defined in Tex.R.Civ.Evid.BOl(a), now
see Tex.R.Crim.Evid. 801(a) necessarily includes proof of the statement whether the
proof is direct or indirect."). The prosecutors questions were designed to obtain
hearsay indirectly which is still hearsay. Id. at 113. Had these 'statements been
objected to the objection would have been sustained. If not it would have been an
abuse of discretion. Id. at 113. without this hearsay there is a reasonable
probability the results of the proceedings would have been different. Stickland,
Supra. s , _
8). Failed to allow Applicant to review the video (DVD) even in the face of
numerous requests before trial so he could make an intelligent and informed decision
. to accept the state's plea offers or go to trial.
Applicant repeatedly wrote letters to trial counsel informing him he needed to
watch the video so he could decided whether or not to accept the state's plea offers
which were eight, five years prison time. The State went all down to two years
State Jail right before voir dire. Because counsel failed and refused to do so
_applicant's decision to reject the state's numerous plea offers were not an informed
and intelligent decision. See Hill v. Lockhart, 106 S.Ct. 366,369 (1985)("...0ur
concern in McMann v. Richardson [90 S.Ct.1441 (1970)] with the quality of counsel's
performance in advising a defendant whether to plead guilty stemmed from the more
general 'principle that all defendants facing felony charges are entitled to the
effective assistance of competent counsel."). Applicant's decision to refuse the
State's plea offers is based upon counsel's failure and refusal to allow applicant
to view the DVD.~ Thereby providing applicant the knowledge of the strength of the
evidence against him. Because counsel refused and failed to provide applicant the
'_ information he needed to make_a well informed decision, which is the core function
of counsel during the time a defendant»is deciding whether or not to accept the
State's plea offer. This failure of counsel rendered applicant's decision
unintelligent, unknowing and involuntary. C/F Burk v. State, 80 S.w.3d 82,93
(Tex.App.-Fort worth 2003); Johnson v. State, Supra at 19 ("If, prior to trial,
appellant had listened to the audiotape her overall strategy might have been
substantially different. For example, she might have considered a plea."). ``
Applicant's has now'a.ttached these numerous letters collectively as Ex.'s B 1-B
5. Once the DVD was given to counsel on 10-30-12 counsel only came to visit
applicant once at the county jail during this time before trial, this visit only
lasted 20 minutes at the most. _The video was at,least over one hour therefore, it
was impossible for counsel to have shown it to applicant. Applicant has attached a
copy of the jail visitation log as Ex-. C.
Had counsel allowed applicant to view this inculpatory DVD it. would have
convinced applicant to plea guilty and accept the eight, five or two year State dall
offers. The persuasive nature of the video finds support in the record. Vol.4 P. 183
_L.15. Once the jury viewed the DVD it persuaded them to find applicant guilty. For
these reasons applicant's decisions to refuse the state's plea offers were
unknowing,- unintelligent and involuntary decisions. Hill v. Lockhart,
Surpa. 369. For this reason this writ should be granted and the plea offer be
reinstated. _ v
9). Failed to object to the introduction of critical evidence without establishing
a proper chain of custody.'e.g. Gun, DVD or jacket.
Counsel failed to discover that Brazos Co. Sheriff's Department did not have an
evidence control system from the date of arrest to the date of trial. Therefore, it
would have been impossible to establish a chain of custody for all the inculpatory
evidence. Coupled with the discovery there existed no separate evidence sheet
period. Contrary to counsel's belief. Vol.4 P.156. L.13-17. ``
This error is cumulative to the fact counsel failed to discover and object to
the introduction of the DVD because it was the product of four DVD's commingled into
one. Cuba v. State, supra. at 735. Had counsel objected for these two reasons the
objections would have been sustained and the evidence ruled inadmissible. If not it
would have been an abuse of discretion. Id. at 735. Also this would have preserved
error for appeal. without this DVD there is a reasonable probability the results of
the proceedings would have been different.
Regarding the gun and jacket the judge would have had to instruct the jury that
this evidence has not been subjected to a proper chain of custody which effects its
credibility. Id. at 735 Rule of Evid. 901. Had the judge not done so it would have
been an abuse of discretion. 901 Supra. Therefore there exist a reasonable
probability the results of the proceedings would have been different absent these
errors of counsel. v 1 _ j
10). Counsel failed to object when the State stated that Applicant was: "only" in
jail for the offense he is now convicted of. Vol.4 P.9-15 which is the hearing on
the admission of jailer Lakeith McKinney‘s highly prejudicial and inflammatory
testimony. This is true because, first it brings to the juror‘s minds, applicant is
in the County dail wearing jail cloths, which in effect is illegally‘ trying
applicant in jail cloths. 364 F.-Supp 335. Doing is so prejudicial it's automatic
reversal error. Second that applicant is in jail for breaking the rules. P.12
-L.15. The judge asked "was -he in jail for anything else other than this particular
cause of action? CALVERT: He was not judge." This is misleading and presents false
facts and just plain lying to the judge. Duggan v.State, Supra rat 469 ("Nor does it
matter that the falsehood goes merely to the issue of credibility. See M, Supra
("A lie is a lie no matter its subject..."). Because in fact applicant was in jail
for operating a motor vehicle without registration, theft of 1,500-20,000 dollars
magistrated in Brazos Co. on 5-19-12. warrning #427138. warrant #12-04020_-02, and a
blue warrant. These three Ex.s are attached collectively as Ex. D-l,_DT-``?_',
Trial counsel's failure to object caused applicant harm because the state was
allowed to use McKinny‘_s testimony under the false context that applicant was only
in jail for_ a felon in possession of a firearm. So the statement of "I am in jail
for breaking thev rules" can only be applied to that charge. when in' fact it
didn‘t. Had trail counsel had _any kind of grasp of his client's, (applicant's)
actual situation and asked_``for an immediate ruling on his'running objections, it
would have been granted or it would have been an abuse of discretion. Applicant gave
counsel a note during trial in efforts to get counsel to object to his testimony or
impeach his credibility. See Ex. E. Counsel's refusal resulted in allowing the state
to paint a false picture _of the evidence. Means v. State, 429 S.w.2d 490
(Tex.Cr.App.1986). Had counsel consulted with applicant, applicant would have
provided him a copy of the grievance that had been filed against this witness by
31
another offender in which applicant was a witness. Applicant has since tried to
obtain a copy of this grievance. By applicant's father requesting it through a
freedom of information act request. See Ex. F. This request was denied alleging
there was a pending criminal investigation involving this jailer. Ex. G. Also Ex.
H. which verifies the cause No. Also Ex.l. which is a news paper article in which
this jailer was successfully indicted for sexually assaulting inmates, "jailer
having sex with inmates.'f This grievance was`` filed against this jailer for sexual
harassment. This grievance could have been used to impeach his credibility. This
_ would have provided the judge with evidence as to why this jailer was willing to
lie. .This evidence would have severally undercut the already questionable probative
value of this evidence. Gilmore v. State, 323 S.w.3d 250,254. Had counsel made these
objections and presented the attached evidence there is reasonable probability the
judge would have ruled this evidence was inadmissible, thereby changing the results
of this proceeding and the results of the-trial. Strickland, Supra.
11). Counsel failed to object when applicant was not allowed to be present at all
stages of the trial. E.g. when the jury sent the note out and the judge sent a
reply. we now know the record is voidv of this mandated information, 36.27
Supra. Vol.4 P. 183 Lans. Ch. 14-16. See "U.S. v. Smith, Supra at 471 ("..[a] criminal
defendant be present "at every stage of the trial," the Sixth‘ Amendment's
confrontation clause, and the Due Process Clause of the Fourteenth Amendment. Thus,
unless waived discussion concerning the jury inquiry and the court's response must
take place on the record in the presence _oith_e defendant."). Had counsel objected
to allowing the judge and prosecutor having an exclusive private, long extended
meeting with the deliberating jurors without applicant being present, this objection
would have been sustained, if not the judge would have abused his discretion, Id. at
471. `` _
This error of counsel effected applicant's substantial rights to be present at
all stages of trial, as well as preventing the prosecutor and judge from having this
extended private ex parte meeting with the deliberating jurors. Therefore, this
error should not be subjected to a harm analysis. Gochicoa v. Johnson, Supra at
950. Additionally this objection would have preserved a complete record of these
events. The courts having found one error of counsel is enough to establish
ineffective assistance of counsel. Nero v. Blackburn, supra. Therefore, absent these
errors of counsel there is a reasonable probability the results of'the proceedings
would have been different. Strickland, supra.- "
12). Failed to object to the numerous times the State presented false evidence. ln
32
this case applicant was charge as being a felon in possession of a
firearm. Applicant stipulated to the fact of being a felon still on parole. Vol.6
Ex. 14. This left the state with the burden to prove only two el ements. 1). That it
a firearm; 2) that it was in applicant's possession. The state' was allowed to prove
both using false evidence. The first element was proved based upon false and M_
existing evidence! Vol.4 P.164 L.5-7. "Because you know that was a firearm because
_tMtL§ stipulated _t_g..." There is no such stipulation. Applicant has supplied the
entire record. This matter has further been set out previously in error No. 9.
The second element was.also proven with false evidence. Vol.4 P.179 L.10-14
"...the lone issue in front of 'you is _r_lpt possession. There can be no doubt. Again
we are there beyond a shadow of a doubt that this man was exercising care, custody,
control or management over the pistol. we know that why? Because i_t Las _ip h_i_s_
vehicle..." The weight the jury placed in this false evidence "it was in his
vehicle" is demonstrated by their commitment during voir dire that if its in his
truck its in his care, custody and control. Vol.3 P.41-44. Even if someone else
claimed ownership of the gun. Vol.3 P.65-70.
what makes counsel's lack of'objection to this obvious false testimony such a
deplorable and despicable act is counsel knew for a stone cold fact it was
false. Vol.4 P.1ZlKL.3-4. "And we don't even have proof'its a firearm." Vol.4 P.72
L.24-25 P.73 L.1-5. ",Q. Now, the vehicle that Mr. Greer was driving that's actually
registered'tga kennith Greer, is that right? A. _Ye§,_``§iL Q. And so, that would be
David's _d_adLLt actually David, i_s__tm correct? A. Xe§¢_si¢
The cumulative effects of this false and prejudicial evidence being admitted
du_e to counsel's poor performance is driven home and cumulative, by allowing the
prosecutor to falsely represent what applicant's only witness testified to thereby,,
bolstering thev effects the previously presented false evidence would have on the
jury verdict. Vol.4 P. 179- L``.1-2. "Monisha told you that. It's registered to his
parents, but 'that's hi__s truck. That's hj_s_ mc_k_.'" This error of counsel was
cumulative to the fact he allowed the prosecutor to literally pound this false
evidence into the jurorsl minds until a minute before they were released to reach a
verdict. Vol.4 P.178 L.24-25; 179 L.2,14-15,2_0-22; 180 L``.25; 182 L.22.
Counsel knew this- evidence was false and he also knew the prosecutor was using
it to prove the only two necessary elements to obtain a conviction and influence the
jury verdict. Had counsel made an objection it would have been sustained if not the
judge would have been abusing his discretion. See earson v. State, 649 S.w.2d
'786,789 (Tex.App.-Fort worth 1983)_("Certainly, we now know, reversal must follow
where the prosecutor deliberately presents a false picture of the facts by knowingly
using perjured testimony." Citing Means v. State, 429 S.w.2d 490 (Tex.Cr.App. 1986).
There can be no reasonable trial strategy in allowing the prosecutor to use
' false evidence! For sure allowing them to use it to prove the only two remaining
elements necessary to obtain a conviction. This error of counsel harmed and
prejudiced applicant by allowing his' trial to be fundamentally unfair. Thee is a
reasonable probability that " without these errors or counsel the results of the
proceedings would have been different. §M<_l_arg, Supra. '
13). Failed to object when the state introduced the illegal incomplete inventory
list. Counsel knew the inventory list did not include the gun-or jacket which
established by mandatory required procedures for a legal inventory search to be-
conducted by the Barzos County Sheriff's Department. which trial counsel works for
as a ride a``long. Yet not only did counsel fail to object but actually actively
assisted gewin establishing _tl£ inventory _lls_t_ t_ha_t M prepared _t_>y_ hip g
worker w proper by asking the court lto consider a non-existing evidence
sheet. Counsel told the judge the gun and jacket are properly listed on this
evidence sheet in accordance to policy. Vol.4 P.156 L.13-17. The record is totally
void of any such evidence sheet. There can be pp t@]_ strategy in helping the state
justify introducing an illegally prepared inculpatory document by telling the`` court
its justified in doing so based upon a false non-existing _document. This is yet one
more prime example of the manifestation of counsel's divided loyalty. Asking the
court to consider non-existing evidence that is detrimental to applicant's case is
far more than unreasonable. In times of war helping the enemy is called
treason. without this evidence there would have been no case. without counsel
helping the state justify the introduction of an ill-prepared document which in turn
was used to justify the confiscation and subsequent arrest for a felon in possession
of a firearm and trial. There is a reasonable probability the out come of the trial
would have been different. Strickland, Supra. d
14). For assisting and urging excuses for the state to deny applicant's his 6th
Amendment right to cross-examine officer Ficke. Vol.4 P'.89 L.24-25 P.90 L.1-9.
The State offered the Vehicle Inventory Report prepared and signed by Deputy
Ficke without objection. See Vol.6 Ex.5. what is so shocking is that counsel
actually set forth the facts that the Supreme Court used to rule- that applicant has
the right to cross-examine this witness. Vol.4 P.89 L.18-21. "Q.I don't anticipate
j_s_ that correct? _l_l4 Yes, sir; lp my knowledge. yes, sir. See Meledez, Supra. at 328
34
as further set out on page four of this memorandum. Then counsel in his next breath
urged the court to introduce this Vehicle Inventory Report without objection in his
mistaken belief that it would prevent Officer Ficke from having to testify. Also _
counsel wanted the judge to know trial counsel was the one that was responsible for
the inventory sheet being introduced into the record and not the state prosecutor.
The record`` further demonstrates the judgewasl shocked and surprised that
counsel had not objections and brought his concerns to counsel attention. See Vol.4
P.90 L.5-9. "MR. GRAY: we have jul objectio . Judge. THE COURT: No further
objection? MR. GRAY: No further objection. Judge. that was actually at our urgence,
[to introduce the inventory sheet not the state's] and that should prevent the
deputy jrgm having tp testify." This record demonstrates two dramatic
things. 1). Counsel did not know the law governing the facts of this case. 2). His
willingness to help the state to deny applicant his constitutional right to
cross-examine this witness thereby subjecting the state's case to adversarial
testing. See Powell v. Alabama, 53 S. Ct. 55, 59 (1932); Meledez, Supra. at 328;
Gochicoa v. Johnson, Supra at 950.
Counsel's statement _is classified as oxymoron as is undeniably pointedly
foolish. The exact reason counsel urges to court`` to deny applicant his
constitutional right to cross-examine officer Ficke is the very reason applicant has
' a' constitutional right to do so. Melediz, Supra at 328-329. Applicant suffered
egregious harm by counsel turning in to a better prosecutor than the state's
prosecutor at denying applicant his constitutional right to cross-examine this vital
witness and evidence. For sure there_ is a reasonable probability that the results of
the proceeding would have been different absent these errors of counsel. Strickland,
Supra.
' 15). Failed to object when state introduced critical inculpatory evidence that was'
altered e.g. several different videos selectively made into one. Therefore, this one
video is impossible to authenticate for legal introduction. Vol.4 P.151 L.6-7 Front
camera and backseat camera of Ficke's car. Vol.4 P.144 L.10-12, Vol.4 P.166
L.1920. Front and back seat of Ballew's car. l
Counsel failed- to object because the DVD wasv hopelessly commingled and
impossible to authenticated Selectively putting bits and pieces of four different
DVD made into one is evidence that not only has been tampered with, but seriously,
v and undeniably tampered with and altered. Furthermore, there is no chain of
custody. This inculpatory evidence was obviously inadmissible. Cuba v. State,
Supra. at 735. Counsel did not simply pass over obviously inadmissible inculpatory
35
evidence which is not within the realm of trial strategy. See Lyons v. McCotter,
Supra. at 534. Counsel went one step further by turning into a defense prosecutor by
assisting the state prosecutor by engaging in illegal means to have this
inadmissible evidence introduced by way of a ever changing oral stipulation in the
middle of trial without placing the exact terms of this stipulation into the
record. See lloweth v. State, Supra at 789. Furthermore, as the judge stated any
stipulation that is offered once trial starts must be in writing. Vol.4 P.19
L. 20-22``. which is supported by the decision of the Tex. Crim. App.‘s See Ellard
v. State, Supra at 841.
The defense prosecutor agreeing to allow this inculpatory DVD to be admitted,
and not simply not objecting to it but orchestrating and conspiring with the state
prosecutor by devising an illegal stipulation to insure this inculpatory evidence
was introduced so the jury could consider it repeatedly. Counsel went so far as to
during closing arguments to remind the jurors they have this DVD to refresh their
memory. Vol. 4 P. 168 L.15-17. The very actions of the jury verifies that the DVD is
persuasive and it' s favorable for the state. They were having trouble reaching a
verdict they watched this DVD and quickly returned a_ guilty verdict. Vol. _4 P. 183
L.14-16. P.184 L.3-5. Had it not been for these errors of counsel, this detrimental
inculpatory evidence could not have been introduced. Therefore, there is a
t reasonable possibility the results of the - proceedings would » have been ``
» different. Strickland, Supra. '
16). Counsel refused and failed to allow the only defense witness to review the
, video to refresh her memory, and prepare her for cross- examination, stating that he
could not allow her to review the video because this would be witness tampering:
Fi``rst to not preparing this witness for cross-examination by allowing her
review both the DVD record and the taped interview is_ ineffective. Johnson v. State, _
Supra.; Mallet v. State, 9 S.w.3d 856,867 (Tex.App.-Fort worth 2000). Next not
allowing the witness to review the DVD based upon his misunderstanding of the law,
, "It would be witness tampering." This is yet one more instant of ineffectiveness of
counsel. Because counsel is required to have a firm grasp`` of the laws dealing with
the facts of lthis case. Alabama v'. Powell, Supra. Flores v. State, 576 S.w.2d
632,634 (Tex.Cr.App.1978_``). It is well defined law that a__llowing~this witness to'
review this tape is not witness tamper. As such counsel is ineffective for such
ignorance of the law. Ex Parte Chandler, 182 S. w. 3d ``350, 358 (Tex. Cr. App. 2005). '
The record speaks for itself. Counsel was so grossly ineffective that he not ~
only did not even allow the only defense witness to review the DVD or the audio
recording by the prosecutor but did not even inform her they existed. This in the
face of the fact that counsel knew she was going to clainl ownership of the gun and
if her testimony was believed applicant would be found not guilty. See Vol.4 P. 132
L.22-24. "Q" Are you aware that you were being video tapped at that point and
time?. A. No',4 l wasn't. Vol.4 P.126 L.2-5. "...are you aware that I was recording
that conversation? A. No, l wasn't aware that you were recording anything;
The harm and prejudice due to this error of counsel allowed the prosecutor to
"not" simply impeach her testimony but literally ambush her on cross-examination
with her statements in the video and audio recording. which subsequently allowed him
to point out these inconsistencies to the jury during closing arguments. Vol.4
P. 181 L.3-25 P.182 L.1-14. Additionally this allowed the prosecutor to use the
threat of the unknown recorded conversation to coerce her into testifying favorable
for the prosecution. Vol.4 P.126-132. This video was used repeatedly to impeach her
direct examination testimony. P.126-143. As a prime example see P.143 L.12-14. "Once
she found out she was being videotaped, on redirect, she changed her testimony and
said that happened later." Additionally this allowed the prosecutor to viciously and
relentlessly attack her credibility by reminding the jury it is their job to judge
' witnesses credibility. Vol 4 P.177 L.11-12. "...You're judging the credibility." The
prosecutor then explained why she had a reason to lie, then proceeded to bash her
credibility by portraying her to be a liar, not once, not twice nor even just three
times but eight times during closing arguments. P.180-182.
Counsel' s lack of preparing the only defense witness to testify resulted in the
ultimate harm--"the jury discredited her testimony and found applicant
guilty." Because if the jury would have believed her testimony (the gun was her's)
then they would have found applicant not guilty. Had it not been for this error of
counsel the results of the proceedings would have been different. Stickland, Supra.
v 17). Failed to object when prosecutor ndsstated the law. The Fifth Amendment right
includes the right not to incriminate others. Vol.3 P.85 L.7-9. Instructed the jury
after the jury charge had been read that the evidence; "does not have to be beyond a
reasonable doubt." Vol.4 P.165 L.14-15. Counsel's failure to object to these obvious
well known misstaatmemnt of laws are not with the realm of trial strategy also this
one error of counsel is enough to find counsel ineffective. See Andrew v. State, 159
S.w.3d 98,102 (Tex.Crim.App.2005);
"[tjhe Supreme Court said that, "In making [itsj determination the [reviewing]
court should keep in mind that counsel' s function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work in the
particular case." Counsel failed to do so in the case when he failed to object
to the prosecutor' s misstatement of law...Defense counsel has a duty to
37
correct ,misstatements of law that are detrimental to his client. This duty
derives from counsel' s function "to make the adversarial testing process work
- in the particular case." There can be no reasonable trial strategy in failing
to correct misstatment of law that is detrimental to the client.")
See also Branch v. State, 335 S.w.3d 893,899 (Tex§Crim.App. 2001). There can
be ne reasonable trial strategy in failing to correct this false impression that was
harmful to appellant. See Andrews v. State, Supra at 103. Ignorance of well-defined
general laws, statutes and legal propositions is not excusable and such ignorance
may lead to a finding of constitutionally deficient assistance of counsel. See Ex
Parte Chandler, Supra at 358. The prosecutor gave the jury incorrect information to
determine applicant' s guilt. This is a structural error as it effects the very frame
llwork that trials proceed. See Pyles v. Johnson, Supra. at 993. As such its violation
defies analysis of harmless error. Id; at 995. Furthermore, it a violation
Tex. P. C. §2. 01. had counsel objected to these lnisstatements of law the objection
would have been sustained or it would have been an abuse of discretion. Anderws
v. State, Supra at 102. There is a reasonable probability the results of the
proceedings would have been different without these errors of counsel. Strickland,
Supra. - _
18). Failed to object when prosecutor made improper jury arguments.. See Mayberry
v. State, 830 S.w.2d 176,178 (Tex.App.-Dallas 1992)(“The permissible areas of jury
argument are well established. Proper subject of jury argument include (1) summation
of the evidence (2) reasonable deduction from the evidence, (3) answers to argument
of apposing counsel. (4) pleas for law enforcement."). The complained of arguments:
Vol. 4 P. 164 L. 4- 7. "So what does this all boil down to a whole day spent on
possession, knowingly, intentionally possessing a firearm. Because you know that was
' a firearm because it was stipulated to..." This argument injects new facts into the
record that are totally false, harmful and prejudicial to applicant. lt invites the
jury to based their verdict upon non-existing false evidence. Napue v. Illinois,
Sup ra., U. lS. v. Blakey, Supra. at 1560; U. S. v. Murrah, 888 F.2d 24 (5th
Cir. 1998)("A prosecutor may not directly refer to or even allude to evidence that
was not adduced at trial."). See also Cooper v. State, ("however, such error is not
reversible, unless, viewing the record as a whole, we can conclude the argument is
extreme or manifestly improper, violative of a mandatory statute, or injects new
facts, harmful to the accused into the trial.").
Additionally prosecutor instructed the jury that the vehicle was
applicant' s Vol. 4 P. 178 L. 24- 25 179 L.2,14-15,20-22; 180 Lans. Ch. 25; 181 Lans. Ch. 1 182 Lans. Ch. 22. we
know this is false and the prosecutor is using it improperly to influence the
verdict, as such it's manifestly improper, Guidry v. State, 9 S.w.3d 133,154
(Tex.Cr.App.1999). Additionally the prosecutor falsely stated that: "Monishia told
you that. It's registered to his parents but that's his truck._That's his truck.'
Vol.4 P.179 L.1-2. This argument is false, because no such testimony exist, it
injects new facts into the record harmful to applicant. Also it was used for the
improper purpose to bolster the credibility of his previous false
Additionally the prosecutor argument misstated a well,defined law after the jury
charge was read. "...you are the finders of fact, you can find these facts and add
them up. It does not have to be beyond a reasonable doubt." This argument violates
mandatory statues, Tex.P.Code 2.01 and the very structural foundation of criminal
trials. This argument can only be viewed as a improper method calculated top produce 1
a wrongful conviction. U.S. v. Blakey, Supra. at 1560. All of these arguments are
improper and counsel did not object to any them. Had counsel objected the objections
would have been sustained if not it would have been an abuse of discretion. without
these errors of counsel there is a reasonable probability the results of the
proceedings would have been different. Strickland, Supra. '
19). Failed to request findings of facts and conclusion of law after the motion to
suppress was denied. Had counsel done so it would have been granted if not the judge
would have abused his discretion._ State v. Oages, 210 S.w.3d 643,644
(Tex.Cr.App.2006).-Counsel's failure to do so harmed and prejudiced applicant's
right to effective assistance‘of counsel on appeal. Evitts v. Lucey,» Supra. Also
this denied``the appeals court of an adequate record on appeal to. properly review
this v trial court's ruling. State v. Cullen, 195 S.w.3d 696,698
(Tex.Cr.App.2006). Additionally this lack of an adequate record is harming and
prejudicing applicant's post- -conviction proceedings in both State and Federal
court. Tamez v. Director TDCJ- -CID, supra. at 642.
20). Failed to object when the jury were allowed to take this video and player
into the jury room during deliberation. Due the lack of the mandatory record and
possible changes this record may bring about applicant can not adequately present
and brief this issue at this time, but will once record is properly supplemented.
21). Counsel failed to object to prosecutors production and use of custodial
integration video (DVD) in violation of Texas law. The courts in Nguyen v. State,
292 S.w.3d 671,676 (Tex.Cr.App. 2009),l sets out all the requirements that a
electronically recorded custodial integration statement must meet before it's
admissible; 1). It must verify that Miranda warning rights were read and
argument. U.S. v. Murrah, Supra at 26; Guidry v. State, Supra at 154.
39
waived. 2). The~ recording must be accurate and not have been altered; and 3). Trial
counsel must be given a true, complete, and accurate _c_opy_ gf al_l Mdj_ng§ at mg
2_0 d_ay_§ before trial. 'The video verifies the miranda warnings were never
read. Therefore, it was impossible to knowingly waive them. The one video was the
product of four DVD's selectively commingled into one. It‘ was not provided toy
counsel until 10-30-12 (Vol.€ Ex.3) at the earliest and trial was on 11-13-12. As
such the admission was prejudicial and clearly_inadmissible, counsel's failure to
object to its admission is unexcusable. The failure to do so has no strategic
value. Lyons v. McCotter, Supra. at 534. Had counsel objected to its illegal nature
the objections would have been sustained if not _it would have been an abuse of
discretion. Nguyen v. State, Supra at 676. without this evidence there is a
reasonable ' probability the results of the proceedings would have been
different. Strickland, Supra._ ' 1
22). Counsel failed to pursue exculpatory evidence. Dispatch logs of Brazos
Co. Sheriff's Dept. and Bryan Tx. Police Dept. for February 16, 2012 specifically
for the hrs. 1pm-4pm. »Had counsel obtained these logs they would established that
the warrant for applicant's arrest was not confirmed'until after applicant was
pulled over at gun point and placed under'arrest. This evidence could have been used
to prove the stop, arrest and search was illegal._Also it could have been used to
impeach the credibility of the state's witnesses. This is therefore, Brady
material. United States v. Bagley, 105 S. Ct. 3375 (1985). Had counsel d1§covered
this evidence there is a reasonable probability the outcome of the trial woqu have-
been different. Strickland, Supra. '
23). For asking the judge and jury to consider evidence that is not in the record
that is detrimental to applicant. when it came to the attention of the court before
t_he j_\_l_ry_ that the jacket and gun were not on the Vehicle Inventory Report as
mandated by policy counsel informed the courtroom that it was listed in the evidence
sheet. This evidence i§_ gt _in _t_hg record. This allowed the court and jury to
consider evidence that is not in the record and which is detrimental to
applicant. This non-existing evidence could have been considered by the trial court
and appellate court when denying applicant's motion to suppress. There is a``
reasonable probability that without this non-existing evidence being considered the
results of the hearing on the motions to suppress and trial would have been
different. Strickland, Supra.
24). Failed to question venireperson Robert Cessna if his personal friendship with
the presiding judge would have effected his ability to be a fair and impartial
juror, Applicant can not adequately``present this issue due the lack of mandatory
record but applicant has a motion pending to have the record supplemented with the
mandatory record is supplemented applicant will fully brief this issue.
25). Improper jury arguments.- of coun\sel. Applicant will no_w justify .coining trial
counsel the defense prosecutor. Counsel did more to criticize and place Applicant's
fifth amendment right 'to remain silent prejudicially in the minds of the jurors in
closing arguments than the prosecutor is legally entitled to. See the defense
prosecutor's closing arguments. Vol.4 P.170 L.1,11. "...There's no testimony from
David...There is no statement from David.'.'."' This is direct statements of
applicant's failure to testify. Had the state prosecutor made these statements
reversal error would have been required. Anderson v. State,7 813 S.w11.177
(Tex.App.-Dallas 1991) citing Johnson v. State, _ 611 S.w.2d 649,650
(Tex.Cr.App. 1981). Counsel was well aware that the jurors were already struggling
to not hold applicant's failure'to testi __ gzag_ainst him. Especially mixed with the
fact they were told applicant was a convicted fel-ony. See Vol.3 P.90 L.5-13. Counsel
also knew more jurors were excused for cause because they would hold it against
applicant if he did not testify, than any other reason. Vol.3 P. 113 L.16-18. The
defense prosecutor knew any comment on applicant"sq:';right to not testify was highly
prejudicial. This denied applicant a fair trial with an, impartial
jury. U.S. v. webster, supra. at 341. Yet the law allows trial counsel to do
so. nick-s v. state, su‘pra. at 304. ``
The defense prosecutor conceded applicant's guilt which is the proverbial final
nail in the coffin. P. 174 L.19-25, 175 L.1-3.
"...They're going to talk about David's coat, you know, him saying that's not
his. Think about this. You've got a convicted felon. He's in a police car,
just like Monishia, in handcuffs. Officers comes up with a coat, “Hey, is this
yours?" Officers wouldn't be bringing a coat unless he found something in the‘
coat, right? So, is it shocking that.@ would _sgy_ that's Mmy_ coat?
This is a clear' admission of guilt. Defense prosecutor clearly admitted it was
applicant's coat. He also admitted that applicant was a convicted felon. Also
admitted that applicant knew the pol'ice found something in his jacket that a '
convicted felon could not possess e.g. a gun. That applicant was a lair and that
'vthi's is the_ reason he lied. Also that the jury could not be surprised that he
;_;,',_';;_.lied’.;v__Co'unsel connected the gun to the jacket and the jacket to applicant. Also that
1111-"_``appl.-ic_ant knew the gun was in the jacket. Additionally that applicant lied but the
;j_u_r‘y.j' should understand why he lied and not be surprised.' Counsel had already allowed
13‘the state prosecutor to use false evidence to prove the truck was app.licant's, and
41
the gun was a firearm. As such counsel's admission conceded applicant's guilt.v See
Doherty v. State, 781 S.w.2d 439,442 (Tex.App.-Houston [1st Dist.] 1989):
"Fleming himself made remarks prejudicial to appellant. Feleming‘s remarks to
appellant, "you didn' t take all the money? " and, "what did you do, hit him
over the head first?" were heard 15- 20 feet away. Felming essentially admitted
his client' s guilt in the presence and hearing of the jury." -
There is no trial strategy in admitting applicant' s guilt. Stickland',
Surpa. This error resulted in further harm because it opened the door for the
prosecutor _to assassinate and annihilate applicant's character even though hew
testified. This was done by repeatedly telling the jurors he l.ied. Vol.4 P.179, 23,
180 L.3,8-9,12; 182 L.22. These were virtually the last words out of_ the defense
prosecutor's mouth before he dismissed the jurors. what juror would not believe
applicant was guilty if it' came out of his own counsel's mouth. Any chance applicant
had a fair trial was totally destroyed. This final one error of counsel alone is
enough to find counsel ineffective. Ex Parte Felton, Supra at 735.
GROUND 0F``ERROR N0.14: APPLICANT wAS DENIED HIS 6TH AMENDMENT RIGHT TO
EFFECTIle ASSISTANCE OF COUNSEL 0N APPEAL. »
GRGUND 0F ERRORv NO. 15: APPLICANT wAS DENIED HIS AND 14TH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANT 0F COUNSEL ON APPEAL.
Applicant is constitutionally entitled to effective of counsel on appeal
pursuant to the 14th Amendment of the' U.S. Constitution. See Lofton v. whitle , 905
F.2d 885,887 (5th Cir.1990). Citing Evitts v. Lucey, 105 S. Ct. 830 (1985).
For a applicant to establish ineffective assistance of counsel on appeal
applicant need only show that a different outcome on appeal would have resulted but
for the error of counsel. Duhamel v. Collins, 955 F.2d 962,967 (5th Cir.7 1992); §§
Parte Owenby, 749 S.w.2d 880,881 (Tex.Crim.App.1988)(This second prong [of
Strickland test] requires that in the instant case the applicant must b_e able to
show that the outcome of his appeal would have been different if he was now allowed
an out-of-time-appeal on this issue). This involves a significant lower threshold
showing of harm, because counsel may have been ineffective on appeal for not raising
an issue or that issue raised was deficiently briefed. Duhamel, supra. at '1130-31.
Applicant asserts that his appellant counsel was ineffective because the trial
court denied counsel the mandatory complete trial record.-There is four
off-the-record discussions. Two applicant has recited to the best of his ability the
essential facts. See pages 1-3 of this memorandum. The jury note is missing and the
astounding extended private ex parte communications between the judge, prosecutor
and deliberating jurors. These missing mandatory records (36.27 supra) denied
42
appellant counsel the necessary records to file a motion for new trial with
supporting affidavit. Had counsel been provided these``records and filed the motion
for new trial seeking to develop these issues the motion would have been granted an
-a hearing would have been ordered. Lucero v. State, Supra. at 94``. This would have
allowed counsel to present a fully developed record supporting counsel's conflict of
interest. Cuyler v. Sullivan, Supra.'at 1719. That applicant was not present at all
stages of the tr``ial and ex parte communications between the judge and prosecutor
with the jury. U.S. v. Smith, supra. at 471-73. Also that counsel did not question
Mr. Cessna about his being impartial, due to being special friends with the
presiding judge. Cadoree v. State, Supra. at 789. Had this motion for new trial been
, filed, developing these facts and bring these issues up on direct appeal there is a
reasonable probability that if applicant was now granted an out-of-time appeal the
results of the proceedings would be different. Ex Parte 0wenby, 749 S.w.2d 880,881
(Tex.cr.App.lgaa); aiso strickiand, supra. ``
Appellant counsel was ineffective because she failed to request a hearing on
the motion for new trial by filing a Setting Request form with the District
Clerk. See Clerk's Records P.70. Also sh_e failed to file the required affidavit and
attaching it to the motion for new trial as pointed out by the District
Attorney. See Clerk's Record P. 65. And appellant counsel failed to present issues
'in`` her motion for new trial specifically requested by applicant. See attached
Ex. J. Had these issues been presented on a motion for new trial then the factual
bases for each claim would have been developed. Therefore, there would have been a
record to reference to, such as but not limited to, why trial counsel failed to
allow applicant to try on the jacket in front of the jury which is a XL and
applicant wears a 5X this would have been like putting 1a baby shirt on a giant, this
would have conclusively proven the jacket was not applicants. Like 0J Simpson "if it
does not fit you must acquit." Had counsel listed these issues in her motion for new
trial along with the necessary papers and attaching them with _her motion for new
trial. There is a reasonable probability the results of the motion for new trial
would have been different. Lucero v. State, Supra at 94. Thereafter, the results of
the direct appeal would have been different. Stricklnad, Supra.
Had counsel raised and properly briefed the issues presented herein there is 5a
reasonable probability a different out come would have resulted. The Honorable Fifth
Circuit held in McGrae v. Blackburn, 793 F.2d 684, 688 (5th Cir. 1986)(Because this
is not a case where counsel's deficiencies prevented ANY APPELLATE review, or where
counsel entirely failed to challenge the prosecution's case,1 McCarae's claim
43
requires a showing that counsel's errors were so serious that counsel was not
functioning as the counsel guaranteed to the defendant by the Sixth
Amendment. Hamilton v. McCotter, 772 F.2d 171,182 (5th Cir.1985). See also
Strickland, supra at 2064"). In the instant case appellant counsel COMPLETELY FAILED
to challenge the Prosecutor's case on Grounds of error 2-12,16,17 also the issues
she did raise were deficiently briefed which denied applicant any meaningful review
which shows applicant was denied his 6th and 14th Amendment right to effective
assistance on appeal. Id. citing Strickland, Supra at 2064.
Applicant has shown and satisfied his burden under Stickland by showing that
the issues now raised if appellate counsel had raised them and properly briefed them
on direct appeal reversal would have followed and a new trial ordered years ago.
The denial of effective assistance of counsel on appeal prejudiced applicant by
denying him proper and/or presentation of these issues now being presented. See
U.S. v. Phillips, 210 F.3d 345 (5th Cir.2000). There is a reasonable probability
that, but for counsel's unprofessional errors, the results of the proceedings would
be different if applicant was now granted an out-of-time-appeal. Ex Parte Owenby,.
supra at 881.
GROUND OF ERROR NO. 16: APPLICANT wAS DENIED HIS 6TH' AND 14TH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BECAUSE HE FAILED TO_ADEQUATELY
-PRESENT AND PRESERVE APPLICANT'S 4TH AMENDMENT CLAIMS. '
This issue is governed by the supreme court's decision in Kimmelman v.
Morrison, 106 S. Ct. 2574 (1986). Counsel completely failed to filed a motion to
suppress the video of the custodial integration. He did file one regarding
suppression of the audio but never properly requested or received a hearing. See
Clerk's Record P.11-12. Had counsel done so and alleged it violated the requirements
the court set forth in Nguyen v. State, Supra at 767. As further set-out in ground
of error 13 subsection 21 on pages' 39¥40 of this memorandum, it would have been
granted, if not it would have been an abuse of discretion. Id. at 767. The video was
4 videos made into one, selectively redacting exculpatory portions and including the
inculpatory .portions. The final video is undeniable a video that has been tampered
with altered and commingled with 3 other videos, hopelessly destroying the ability
for it to be authenticated, and its ability to be legally admitted as evidence. §gbg
v. State, supra at 735. Additionally had counsel discovered and admitted as evidence
that Brazos Co.$heriff‘s Dept. did not have an evidence .control system from time of
arrest until trial. See attached Ex. K. The chain of custody could not have been
established. See wortham v. State, 903 S.w.2d 897,900 (Tex.App.-Beaumont 1995)("0nly
upon a showing that an exhibit was tampered with or altered will a chain of custody
44
question effect admissibility."). This evidence would have proven this video was
hopelessly inadmissible. The nwtion would have been granted if not it would have
been an abuse4 of discretion. Id. at 900. for ' sure the issue would have been
preserved for appellate review. The results of the proceedings would have been
different without this evidence. Kimmelman v. Morrison, supra at 2583.
Counsel failed to file an adequate motion to suppress the illegal arrest and
subsequent search and confiscation of the gun and jacket. Additionally counsel
failed to request a pre-trial hearing on the motion to suppress. Counsel waited
until after the jury was impaneled and even then did not request a separate
hearing. Vol,3 P.167 L.18-20. At the point in time when counsel finally urged his
motion was after the state rested its case. Vol.4 P.100 L.17-18.1 All the evidence
that counsel sought to suppress he had already allowed the state tot present it
without a single objection. See Griffin v. State, 850 S.w.2d 2461249
(Tex.App.-Houston [1st Dist.] 1993)("Defense coundfl mg§t object gygry time
allegedly inadmissible evidence is offered. Hudson v. State, 675 S.w.2d 507,511
(Tex.Cirm.App.1984); See also 1 Brasfield v. State, 600 S.w.2d 288,296
(Tex.Cr.App.1980)." Because no objections were made when the complained of evidence
was admitted, there is "nothing preserved" for appellate review; Hudson, 675 at 511.
Once the motion was denied counsel failed to file a motion requesting findings of
facts and conclusions of law. which would have allowed the appeals courts to
adequately rule on the real reason(s) the trial court denied the motion. §Lgtg
.0ages, supra at 644; State v. Cullen, supra at 698.
Counsel failed to properly present his motion to suppress the gun and
jacket. Counsel should have set out the mandatory requirements of the Vehicle
Inventory Report policy and how the mandatory requirements were not followed: This
inventory policy was entered. Vol.6 Ex.16. This policy specifically requires and
mandates: 1
II. POLICY1 This inventory procedure __y_ not be used as a pre text to conduct
ag_exploratory search for incriminating evidence...Vehicle inventories SHALL
be conducted in accordance with the procedures outlined in this directive.
P. 2B. VEHICLE INVENTORY REPORT
3. LLL items of value SHALL be recorded on the Vehicle Inventory Report.
4. In most cases, the property should be left inside the impounded
vehicle. If, however, the vehicle cannot be reasonably secured or the property
is of such value that the officer does not believe it would be safe to leave
it in the vehicle, the property SHALL be logged into the Property/Evidence
unit for safekeeping. Any property removed from the vehicle SHALL be noted on _
the Vehicle Inventory nggrt, indicating_ where it was stored...6. The
``signature of the owner or driver gf_th inventoried vehicle should be obtained
on the Vehicle Inventory Report, when practicable. The signature of the driver
of the wrecker towing the vehicle, shall be obtained.
45
Police officers have no discretion in following inventory search procedural
policy. See Colorado v. Bertine, 107 S.Ct. 738,743 (1987):
"The underlying rational for allowing an inventory exception to the Fourth
determine the scope of the inventory search. See §outh Dokota v, Opperman, 428
U.S. 364, 282, 96 S. Ct. 3092, 3103- 3104, 49 L. Ed. 2d 1000 (1976)(P0wELL
J. Concurring). This absence gil discretion ensures that inventory searches
will ng___t_ be used as a purposeful and general means of discovering evidence of
§;im7e42 Our decisions have always adhered to the requirements that inventories
be conducted according to standardized criteria. See Lafayetta ,462 U. S. at
648, 103 S. Ct. 2610; Opperman, 428 ll.$. at 374-375, 96 S.Ct. _at 3099-3100.“
Therefore, the Supreme Court has set the legal guidelines: If the standard
procedure policy is not followed then the inventory search is illegal. because it
becomes nothing more than a purposeful and general means of discovering evidence of
a crime, §_qlorado v. Bertine, Supra_ at 743.
First the policy mandates that all items of value S|IALL be recorded on the
Vehicle Inventory Report. Now we must determine the base line of the value of the
property officer'Ficke considers valuable enough that it must be listed on the
report. This inventory list is in the record. Vol.6 Ex.l$. lt list 3 pair of
sunglasses ($1.00 each) 2 small flashlights ($3.00 dollars each),-3 Blue water
bottles that were empty which are free, but even full they are about $5.00
each. Therefore, any item of value of $1.00 or more is considered of value. we know
the pistol and black leather jacket is worth way more than $1.00. Neither was
listed, as such this is the first instance in which the mandatory requirement of the
policy was not followed. ‘
Next the policy mandates (P.2 sec.4). Any property removed from the vehicle
$HALL be noted on the Vehicle'Inventory Report. The gun and jacket were not listed
'on the report nor where they were stored. The_refore,!-,this is the second and third
instances in which the mandatory policy was not followed. ,These three instances of
failure to follow the mandatory policy exhibits and demonstrates bad faith. To
further verify bad faith the state capitalized on the lack ;of' following the
mandatory requirements of policy by making a major issue out of not knowing where
-_ the jacket was found. Vol.4 P.60 L.20-23. By stating it was not found in Monishia'.
'1.1.'1'duffel`` bag. Yet as Monishia testified it was in her duffel bag. Had the jury
131-believed the jacket was i_n her duffel bag there is a reasonable probability the
H'outcome_would have been different.`` As such the record verifies that this was a
strategic decision. A clear act of B_A_D_ FAITH. '
Next remember that the policy includes mandatory language therefore, it_
`` 46
mandates compliance....'Vehicle inventories SHALL be conducted in accordance with the
procedures outlined in this directive. Applicant has thus established that three
mandatory requirements that' were not adhered to. Next requirement, the signature of
the owner _g§ driver of the inventoried vehicle should be obtained, when practicable.
Officer Ficke was the officer that prepared the report and the arresting
officer. 0nce the report was completed with the tow truck driver_'s signature.
The officer along with his report got into the front seat with applicant in the
backseat. Applicant was taken to the county jail unhandcuffed and booked in. At any
point applicant could have reviewed this document and placed his signature on it. So
its obvious that it was highly practicable to obtain his signature.1At any point
officer Ficke could have handed applicant the report and applicant signed it. This
lack of compliance denied applicant the chance to insure the inventory was
complete. This lack of compliance undercut two of the three major reasons to conduct
the inventory search in the first place. See Lagaite v. State, 995 S.w.2d 860,865
(Tex.App.-Houston [lst Dist.] 1999, pet. ref'd). Inventories serve to protect (1)
the owner‘s property while in custody, (2) the police against claims or disputes
over lost or stole property. Had this procedure been followed applicant would have
noticed his $75.49 dollar camouflage jacket was not even listed or where the black
jacket and gun were stored. This bad faith lack of compliance, is the key reason the
state was allowed to present false evidence at trial; There was only two jackets in
the truck one Ms. Campbell was wearing and the black leather jacket, and applicant
was wearing only a tank top and it was the middle of winter so that _was his jacket
with the gun in it. Also where it was stored. Vol.4 P<43 L.9.
Also trial counsel argued during the motion _to suppress that the County allows
drivers that are going to be arrested to call someone else to come get the vehicle
so they will not have to search and tow it off. See Vol.4 P.63 L.'18-25 P.64
L.1. Counsel could have called applicant's father and he would have testified that
just 83 _days latter applicant called him after he was arrested and he came and got
the truck instead of them searching it and towing it in. See Ex. L attached. 1
Additionally is the fourth instance the mandatory procedural requirements in
the policy were not complied with. which counsel failed to alleged or argue in the
suppression hearing. Ex 16 P. 2: c. olscovl-:RY or Evlo£uc£.
"1. If, in the course of a vehicle inventory, the officer discovers an item
that constitutes contraband or evidence connected to the commission of a
criminal offense, the officer SHALL seize the evidence and process _in
according g g established procedures o_f this Department." '
This once again mandates that the gun and jacket are mandatorily required to be
47
listed on this Vehicle Inventory Report. Counsel then could have presented the fact
that the Department had no evidence control system. Therefore, there was no way to
follow a non-existing procedure for processing evidence. This evidence would have
established the state failed to follow four mandatory requirements of their policy
and one requirement. Had counsel presented these in the motion to suppress it would
have been granted and without this evidence there would have been no trial. As such
the out come would have been different without this evidence. Kimmelman-Yv. Morrison,
supra at 2583. '
Additionally _at the hearing counsel failed to issue a subpoena for officer
Ficke because he is actually the officer that prepared the inventory
.' report. 1Applicant had a constitutional right to cross-examine him. Meledez, supra at
328. Also counsel should have insisted that the confidential informant be present
because _he was the sole person that identified applicant before he was arrested at
gun point. Applicant had a right to test his description, even if it would have had
to be in camera. See Bodin v. State, supra at 318. Counsel failed to cite one single
case law to support his motion. 1 ``
For sure had 'the motion been presented as 'now outlined it would have been
properly preserved for appellate review. Thereafter there is a reasonable
probability the results of the direct appeal would have been different._
1 1GROUND OF ERROR NO. 17: PROSECUTOR DENIED APPLICANT HIS DlJE PROCESS RIGHT TO
THE DISCOVERY AND DISCLOSURE 0F EXCULPATORY EVIDENCE.
STANDARD OF' REVIEW: "PYLES V. JOHNSON, SUPRA AT 998. THE PROSECUTIONS SUPPRESSION OF
EVIDENCE FAVORABLE TO THE ACCUSED VIOLATES THE DUE PROCESS CLAUSE IF THE
EVIDENCE IS MATERIAL EITHER TO GUILT OR THE PUNISHMENT. KOPYCINSKI V. SCOTT,
64 F. 3D 223, 225 (5TH CIR.1995) (CITING BRADY V. MARYLAND, 373 U.S. 83, 87, 83
S. Ct. 1174,1197, 10 L. ED. 2D 215 (1963)). THIS INCLUDES EVIDENCE THAT MAY BE
USED T0 IMPEACH A WITNESS'S CREDIBILITY. SEE ID. (CITING UNITED STATES
V. BAGLEY, 473 U.S. 667, 676, 105 S.CT.3375,3380, 87 L.ED.ZD 481
(1985))."[E]VIDENCE IS MATERIAL ONLY IF THERE IS A REASONABLE PROBABILITY
THAT, HAD THE EVIDENCE BEEN DISCLOSED TO THE DEFENSE, THE RESULTS OF THE
PROCEEDINGS WOULD HAVE BEEN DIFFERENT." BAGLEY, 473 U. S. AT 682, 105 S. CT. at
3383- 84; SEE ALSO KOPYCINSKI, 64 F. 3D AT 235- 36: IF THE PROSECUTION WITHHOLDS
EVIDENCE THAT Sl-\TISFIES THE ABOVE DEFIN_ITION OF MATERIALITY, THEN HARMLESS
ERROR ANALYSIS IS IN APPOSITE AND HABEAS RELIEF IS NARRANTED. SEE _K__YLES
V. WHITLEY, 514 U.S. 419, 435, 115 S.CT. 1555,1556, 131 L. ED. 20 490 (1995)_ "
The state's witness testified that he was notified by phone by a confidential
informant that applicant was in a certain location driving a certain vehicle and had
a pending'arrest warrant. That he confirmed the arrest warrant by contacting
dispat'ch._ This was the only reason they were legally allowed to forcefully stop and
l arrest applicant at gun point,``1was to execute this arrest warrant. Vol.4 P.16
L.5-8. Therefore, the authority is based upon the confirmation by the dispatcher
that is listed on the dispatch log. Applicant contends that it was not until after
applicant was arrested at gun point that dispatch confirmed the arrest
warrant. Therefore, this dispatch log is exculpatory evidence. This dispatch log can
prove the stop, arrest and inventory search of the vehicle and confiscation_of the
gun were all illegal products of the fourth amendment violation. This dispatch log
could have also been used to impeach the credibility of each of the state's
witnesses. Bagley, supra at 3380. Whether this dispatch log is exculpatory evidence
can easily be determined. Simply compare the video of the stop which has a digital
time displayed on it, to the time on the dispatch logs dated 2-16-12 between the
hours 1PM-4PM each communication is listed word for word with both the time and
date. Applicant's father has tried to obtain this through freedom of information act
with "no response." See attached Ex. M. This dispatch log will verify that all the
state's witnesses testified falsely, as such this log`` could have been used to
impeach the credibility of all but one of the state's witnesses.v This satisfies the
materiality requirement. Id at 3380. This establishes the materiality of this
evidence. P les v.1Johnson, supra at 998. Furthermore, the results of the
proceedings would have been different had these logs been d~isclosed. Ba le , supra
at 3380. _ ’ '
vNext is the fact that the prosecutor did not disclose the fact that the Brazos
Co. Sheriff's Dept. did not have a evidence control system covering the time from
arrest until trial. This evidence could have been used to establish the video was
inadmissible as evidence “no chain of custody. Cuba v. State, Supra at 7315‘. Also it
could have been used to discredit the admissibility of the gun and jacket. Also to
further establish the mandatory policy was not followed thereby establishing
additional incidents of BAD FAITH. This would establish that the inventory search
was nothing more than a search for criminal evidence. Because the inventory search
was illegal. See Colorado v. Bertine, supra at 742-743. As such the gun and jacket
would have been ruled inadmissible. No gun no trial. This unambiguously establishes
the materiality of this evidence. Pyles v. Johnson, supra at 998.
Additionally the state withheld the audio recording that the investigating
prosecutor made of "hls" interview with Ms. Campbell. This recording could have been
used to establish that the prosecutor illegally used it to impeach her testimony at
trial during cross-examination. This will establish the prosecutor committed the
criminal act of witness tampering. Tex.P.C.§36.051. Applicant was entitled to have
the use of this evidence 20 days before trial. Tex.C.C.Proc. Rules 38.22(3)1(a)(5),
49
and 39.14. This undiscovered and undisclosed evidence has been used to discredit the
only defense. The recording could have been used to rehabilitate the credibility of
applicant's only witness. Had this witnesses' testimony been believed applicant
would have been found not guilty. For these reasons this writ should be granted and
a new trial ordered. 1 1
PRA¥ER v
Applicant prays that this Honorable Court will hold all proceedings deal with
this 11.07 in abeyance until applicant's request to transcribe the missing regaining
portions of the mandatory Court Reporter's records are transcribed and supply to
applicant at a reasonable cost. Then allow applicant to supplement his
11.07. Applicant also prays that an evidentary hearing will be ordered at which time
applicant will be allowed to fully develop the record regarding the factual basses
4 of each of his claims. That applicant's writ in all things be granted thereby
' ordering a new trial. lt is so prayed.
I, Dave Greer TDCJ-ID# 1829754, presently incarcerated in the Texas Department
of Criminal Justice Institutional Division at the wayne Scott Unit, in Brazoria
County, Texas declare under the penalty of perjury that the facts in this memorandum
of law are true and correct to the best of my belief.
. My date of birth is )l'¢la»*r ..
ExF_cuTEr) on this 3& day of ,§g mg , ``2015.'
Under both Federal Law (28 U.S.C. §1746) and state law (V,A.C.Civ. Prac. &
Rem. code §132.002-132.003) ~
Respectfully submitted,
'Dave Greer #1829754
wayne Scott Unit '
6999 Retrieve Rd.
Angleton, Texas 77515
CERTIFICATE 0F1SERVICE
I, hereby certify that a true and correct copy of this memorandum has been sent
to the criminal District Attorney addressed to: Mr. Jarvis Parsons, 300 E. 26
Street, Suite 310, Bryan, Texas 77803, by placing a true and correct copy in the
U. S. Mail postage paid on this 357/ul day of §¥\H``{Z , 2015.
probate
ve Greer
APPLICANT'S EXHIBIT LIST
EX. A. AFFIDAVIT OF MS. GROSS VERIFYING THE EX PARTE COMMUTATIONS BETWEEN THE
JUDGE, PROSECUTOR AND DELIBERATING JURY ON 11-14-12.
_ EX. B-1. LETTERS T0 APPLICANT' $ TRIAL ATTORNEY SEEKING TO REVIEW THE 'VIDEO
BEFORE TRAIL 50 HE CAN; DECIDE TO 1TAKE THE STATE'S PLEA OFFERS. FIRST 1ONE ON
5-23-12.'
Ex. 3-2 """. ou 8-4-12
Ex. B-3 """. ou 8-26-12 4
Ex. 5-4. """. ou 9-16-12 PAGE 1.
Ex. B-4-A. """. PAGE 2.
Ex. B-s. """". on 9~30-12
EX. C¥1. COPY OF LETTER FROM OPEN CUSTODIAN AT BRAZOS CO. SHERIFF'S DEPARTMENT.
EX. C-2. "" COPY OF JAIL VISITATION LOG, PAGE 7.
EX. 0-3. "" COPY OF VISITATION LOG. PAGE 5.
EX. D-1. WARNING BY MAGISTRATE ON 5-19-12.
EX. D- 2. wARNING BY MAGISTRATE ON 5-15-12.
EXs E. A COPY OF NOTE TO TRIAL ATTORNEY DURING TRIAL IN EFFORTS TO HAVE HIM MAKE
AN OBJECTION.
EX F. FREEDOM OF INFORMATION.REQUEST FOR COPY OF THE GRIEVANCE THAT WAS FILED
AGAINST JAILER LAKETH MCK1NNEY.
EX. G. BRAZOS COUNTY-SHERIFF'S OFFICE CUSTODIAN 0F RECORDS RESPONSE.
EX.| .DISTRICT CLERK' S RESPONSE W/LAKETH MCKINNEY' S ACTIVE CAUSE NO.'S.
EX. I- 1. BRYAN EAGLE NEW PAPER CLIPPING.
EX. J. LETTER TO APPELLATE ATTORNEY ASKING HER1BRING 1UP SPECIFIC ISSUES ON
MOTION FOR NEw TRIAL. _
EX. K. LETTER FROM ATTORNEY RICHARD WETZEL'TO THOMAS BLANCHARD, INFORMING HIM
wHAT GROUNDS OF ERROR TO FILE ON 11. 07. ON THE BACK IS l\ LETTER TO APPLICANT
INFORMING HIM ABOUT THE OPEN INVESTIGATION ON BRAZOS COUNTY SHERIFF DEPARTMENT' S
LACK 0F EVIDENCE CONTROL SYSTEM.
EX. L1AFFIDAVIT FORM KENNETH GREER.
'EX. M-l. FREEDOM INFORMATION REOUEST FOR DISPATCH LOGS.
EX. M-2. CERTIFIED MAIL RECEIPTS'FOR FREEDOM OF INFORMATION REQUESTS.
EX. N. FREEDOM OF INFORMATION REQUEST FOR AUDIO RECORDING OF MONISHIA ON
11-13-12.
.............
untitled
6/25/2015 __
Kimberly Gross
5177 Julie Circle
Bryan, Texas 77807
AFFIDAVIT
I'm over 18 years old, and I base this statement on my personal knowledge:
!. The D.A. set up the video projection with his personal lap tQD and he was the 1
only person with control of it.
2. During jury deliberation everyone was removed from the courtroom so the1jury
could watch the DVD and the D.A. stayed to operate his computer.
_ 3. Mr. Greer was in:a holding cell in the back of the courtroom.
4. The Attorney (Mr. Gray) was not present in the courtroom.
Sincerely;
Kimberly Gross
§~¥__§;€<, Joe Roy Bewley'
- is , ,
§,,,,§1+"$-' Commission Expires .JL < 3‘° ‘5._
<‘ 04-17-2016
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EX. B-5
(
BRAZOS COUNTY OFFICE oF THE SHERIFF
CHRISTOPHER C. KIRK
W. JAMEs STEWART, CHIEF DEPu'rY 1700 WEST STATE HIGHWAY 2 1
WAYNE DicKY, JAIL ADMlle'rRA'roR BRYAN, TExAs 77803- 1300
Kenneth Greer
5177 Julie Circle
Bryan, Texas 77 807
Mr. Greer,
I received your Open Records Request for the attorney visits~onl David D. Greer between-the
dates of 10/29/2012 and 12/07/2012. We did not list the attorneys separate in the computer at
that time. I am enclosing a list of visits with all of the other visits and personal information
redacted that was prepared by our County Attorney.
Hope you find this helpful,
Sgt. Pechacek
Custodian of Records
Brazos County Sheriff’s Ot’f``loe
0FF10E(979) 3614901 ADMlNIs'rRATIoN (979) 361-4992 -' FAx(979)361-4999~-
l Ex¢ c-l
QFI¢ER ,
WARNING BY MAGISTRATE
§
§ wARNING #:42713§ é. '
' THIS IS TO C§RTIFY THAT I, RO§E JONES ' IN THE CAPACITY OF MAGISTRATE DlD,_(GB§l& d
arn/pm AT BCDC ADMINISTER THE WARNINGS REQUIRED BY ARTICLE 15. 17 OF THE §XAS CODE
- OF CRIMINAL PROCEDURE 'l``_Q:
STATE oF TEX'AS §
COUNTY OF BRAZOS
NAME: D``AVID.DUANE.GREER 4 " t PID’No;: 26619800
Auulutbb: all/winn L,n<, mPOINT§D_
THE ACCUS§D _7DOES _DO§S NOT WANT TO REQU§ST A COURT-APPOINT§D ATTORN§Y. l
10 THE couRT FrNDs THAT PROBABLI-; cAUsE _DOES_ DoEs NOT Ex1sT rN THls MATTER.
1 1. IF YOU ARE NOT A u _s clTIzEN, 130 YOU wANT YooR coNsULA'Tl-: To BE N0r11=1131j? '___No, __ YES. '
COUNTRY? . ,
wITNEss / 7 ' , l
Distribntion: __ Court, _Defendant, __Magistrate, _Jail _ 7 7 JUSTICE OF TH§ P§ACE, PR.§CINC'I`` 4
m - 7
-Form # 5015 Waming by Magis``txate 7 j _ Ex . 0_2 77..
`` g . _ " . ,
.. . . _ ,
C``
._``
\_
1 /f[/U_#/ /@U/é_§_/"fc//~\ //,/»1_,'7
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To: Records Asoess O_ffiser v l
Minimn Sesur.'ity Jail (MSJ)
577muemwm- ~ . 1» 7.
Bryan, Texas 77807 '7 ' 77 7 7 7 7 7 77 ,_
1 Re: Freedom ``075 Onfor'rmtion law Reqnest
Records Aocess Officer
Under the provision 05 the Texas E``reedom of 7ln50rnuati7.0n Law, Gsvemmat
cede Ann. § 552 000, 1 request the following= ' 4 ~ ’f
1 Step 1 grievance forms 511-ed by Stev_e Austin against I..aheth M<:.Kmney
51201171 20172 where David D. Greer was a witness. 1
2. Step 2 grievance forms filed by Steve Austin against Laketh MvKirmey
form 201231111ere David D. Greer was a witness. ~ ~
As you know the Freedom 05 information Law requires thalj'.an agency respond
within five business dive of seseip``t of a request, therefow¢ l wonld appreciate
a res'pond``e as soon as possible and look 50rwa1:d to hearing from von soon 15
501-t any reason any portion o_f my reqnest is denied, please inform me in writing
05 the reesskf0r denial and provide me the name and address 05 the person to
whom an appeal srgid be directed.
Sincefely,
oMM:i-oi¢¢ooceo¢¢o
Kenneth Greer
51'??’;'¢10111=.\C»):;»l ‘ * "
Bryan, Texas 77807
EX. F
BRAZOS COUNTY OFFICE 0F THE SHERIFF
CHRISTOPHER C. KIRK
_W. JAMES S'rEwAR'r, Cx-nEF DEPUrY 1700 WEs'r STATE HIGHWAY 2 1
WAYNE DICKY, JAIL ADMINIs'rRA'roR BR\'AN, TEXAS 77803- l 300
Kenneth Wayne Greer
5177 Julie Circle
Bryan, Texas 77807
__ .93/9?{?015 _.
Dear Mr. Greer,
l have received your request for records concerning grievances tiled by Steve Austin against Laketh
McKinney. I have been advised by Assistant Disu‘ict.Attorney John Briek that I cannot release these
records due to the criminal case filed against Laketh McKinney' still pending
Sincerely,
452 QMZMA
Sgt C. Pechacek
_ Custodian of Records
Brazos County Sheriff's Oflice
oFFICE (979)3614900 * A_DMINISTRATIQN (979)-361.4992 § FAx(s'/Q) 361-4999
EX. G
' Brazos County
Kenneth Greer -
Bryan,Texa'-``s""77'8l)"7 ‘
Regarding: -``Ca"u'se'-'Number 01-345,8;&:.-1-3-.+037,04.4_.¢[{_.|?_-3_61... ,``: r,_;___:.:___._ _.
Nlr. Greer,
Your request for copies of said "Final.Convictiori:;':"fo``r Cé"o'se:#():’l'-$ll_$$ _e'hclosed, howell ,"_Frecords
show that regarding Cau~se# 13-03704~CRF-361 is still an Active case 56we will not have F_in_al
Conviction. P|ease know that you may follow the case documents-on'o\lr'website: ' ' v
lh'c’m://i``usticeweb.co.brazos.tx.us and retrieve co"'pies if needed.
`` \Ne aoologiie``for an\/'ih``cohi}'éri_l”e“h"ce"'ttiis m have ca '
Thank yob,
District clerk office ll l ' '
EX. ll
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RICHAR:) E_. WET::EL`` .
ATTORNEY AT LAV_\/
1411 wEST 1111/1311 11 3111113 100
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(51 ;z';- 469-1943
Board Certi&ed Criminal Law ' - 1 -' `` - _ ' n .1512) 474 5594- fax
And Criminal Appellate Law by _ ’ wetzel_ law @1411west.com
The ``1`` exas Bo:n'd of Legal Special_ization _ wwvv. TexasCriminalAppealsLawyer. com
_ 111111311.1;'_1" 2 1_ 211 111 »
1841613
1300 Luther Dr. _
Navas.ota TX ``
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To: Record Access foicer -
Brazos County .Sieriff's Department
1700 Hwy. 21 West
Bryan, Texas 778_07
From: Kenneth Greer
5177 Julie Cr. -
Bryan, Texas 77807
(979)823-’3200 1
Re: Freedom 'of Information law Request
Records Access 0fficer:
Under the provision of the Texas Freedom of Infometion law, Government
®de`` §i'in.-- § 552 001, l request the1.51£ollowing information' `` `` '
1. Unredacted video from the patrol vehicle that recorded the incident
from 2/16/12. '
2. Trnascript of the video from the patrol vehicle that recorded the incident
from 2/16/12. '
3. Recording from the Brazos Ccmxty Sheriff's dispatcher from the incident
of _2/16/12.
4. 'l``ranscript of the Brazos County Sheriff°s dispatcher from the incident
of 2/16/12. '
As you know, the I"reedom of Information law requires that an agency respond
to a request within five business days of receipt of a_ request, therefore, l
' " "_ appreciate a response as soon as possible and look forward to hearing
from you shortly. If for any reason any portion of my request is denied, please
inform me of the reason for denial and provide the name abd address to whom ``
an appeal should be directed, in writing.
" ' 'S~inc_ere,-ly ,_ l
I% ....C.Ql.°...‘......\..
Kenneth Greer
. 5177 .Julie Cr. ,-
Bryan, Texas'7780``/.i .
Cerfi‘i"r_€d F€e
Retum Fleceipt Fes
(Endqr_sement Required)
Resuictsd Delive!y Fee
(Enao_rsamem He_quired)
mar Post_age & Fe€S
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(E_n_c_iorsement Required)
asserted emery see
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``To. Ryan Calvart, Asst. District Attorney
300 East 26th Street_, Ste 310
Bryan, Texas 77803 v
me Kecmeth Greer
5177 leslie Circler
Bryan, Texas 77897
Re: Freedom of In§ormation Law Request
Rec‘&~ds Access foicerz
Under the provision of the Texas Freedcm of Information Baw, Govermnent
' 'Code "."'Ann' "``"f"'"§§ 552;001~5 l request the following informtionx ' '
1 Mdionrecording of conversation with whistle Campbell outside of the
courtroom 11/13/12.
2. ‘l'ranscript of recording of conversation with Monishia ¥ampbell outside
of the,courtromz 11/13/12.
As ace mm the Freeden of Int'oraration Law requires that an agency respond
to a request within five business days of receipt of a request, tl‘\ere£ore,' l
would epmiate a r£eponse as soon as besible and look forward to hearing
from you shortly. If Eor any team any portion of my request is denied, please
informmsof thereason fordenial inwriting,andprovidema thenaweand
address to winn en appeal should be directed.
Sincerely,
..K th Greer
5177 Juiie Cr.
Bryan, Texas 77807
' (2)
msappl’°*”@nconmns(che¢kauamtapply)~
d a c"]"“*‘»vom - 1;;_ name
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Whaiwasfhe nameofthe frml;udge"
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