Blakely, Ex Parte Quincy Demond

PD-0360-18
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/3/2018 2:05 PM
Accepted 6/5/2018 12:20 PM
DEANA WILLIAMSON
CLERK
No. PD-0360-18
FILED
COURT OF CRIMINAL APPEALS
6/5/2018
DEANA WILLIAMSON, CLERK
In the
Court of Criminal Appeals
at Austin
♦
Petition for Discretionary Review
from Second Court of Appeals
Fort Worth, Texas
Trial Court Cause No. F17-2106-211
of Denton County, Texas
♦
IN RE QUINCY BLAKELY
♦
PETITION FOR DISCRETIONARY REVIEW
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IDENTIFICATION OF PARTIES AND COUNSEL
Petitioner:
Quincy Blakely
2701 Little Elm Parkway #100-551
Little Elm, Texas
Counsel for Petitioner
None
Real Party in Interest:
State of Texas Adverse Party
1450 E. McKinney
Denton, Texas 76209
Counsel for Real Party in Interest:
Paul Johnson, District Attorney
1450 E. McKinney
Denton, Texas 76209
Telephone: 940-349-1600
Facsimile: 940-349-2606
Trial Court Judge
Honorable Brody Shanklin
1450 East McKinney Street 2nd Floor
Denton, TX 76209-4524
(940) 349-2330
(972) 434-8873
(940) 349-2331 (Fax)
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TABLE OF CONTENTS
TABLE OF CONTENTS.............................................................3
INDEX OF AUTHORITIES........................................................4-5
STATEMENT OF THE CASE..................................................... 6
ARGUMENT IN SUPPORT OF REASONS FOR REVIEW……6-12
APPENDIX………………………………………………………...13-21
PRAYER FOR RELIEF…………………………………………22
CERTIFICATE OF SERVICE……………………………………22
CERTIFICATE OF COMPLIANCE………………………………22
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TABLE OF AUTHORITIES
1. Bill of Rights of the United States of America
2. United States Constitution
3. Texas Constitution
4. Miranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603
5. Gerstein v. Pugh, 420 U.S. 103 (1975)
6. County of Riverside v. McLaughlin, U.S., 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991)
7. Rabb v. State, 730 S.W.2d 751, 752-54 (Tex.Crim.App.1987)
8. Kelly v. State, 724 S.W.2d 42 (Tex.Cr.App.1987)
9. Scott v. State, 690 S.W.2d 256, 258 (Tex.Crim.App.1985) 10. Omura v. State, 730 S.W.2d 766,
768.
10.Howard v. State, 690 S.W.2d at 255-56
11.Morrow v. Corbin, 122 Tex. 553, 560-61, 62 S.W.2d 641, 645 (1933)
12.McChain v. City of Fond Du Lac (Wis 1959) 96 N.W.2d 607
13.Perkins v. Crittendon, 462 S.W.2d 565, 567-568 (Tex. 1970)
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14.Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984)
15.Donnelly v. Dechristoforo, 1974.SCT.41709 ¶ 56; 416 U.S. 637 (1974).
16.Trinsey v. Pagliaro D.C. Pa. 1964, 229 F. Supp. 647
17.Porter v. Porter, (N.D. 1979) 274 N.W.2d 235
18.United States v. Lovasco 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752
19.Young v. First Bank of Bellevue (Neb 1994)516 N.W.2d 256
20.Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975)
21.Humphreys v. Caldwell, 888 S.W.2d 469 (1994)
22.Walls v. State, 273 S.W.2d 875, 876 24. Gary v. Vick, 203 S.W.2d 869, 870
23.Witty v. Rose, 148 S.W.2d 962, 964
24.Alvarez v. State, 861 S.W.2d 878
25.Donnelly v. Dechristoforo, 1974
26.Miller v. United States, 230 F.2d 486 (5th Cir. 1956)
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STATEMENT OF CASE
On April 13, 2017 at 12:25pm, I was arrested for allegedly unlawfully carrying a
firearm in violation of Penal Code 46.02 without a warrant being issued based upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized. I was not engaged in criminal activity, but in my private car
when I was ordered to exit my car after I had just walked out of a convenience store located at
26748 E. University Drive Little Elm, Texas.
ARGUMENTS PRESENTED
The penal code I was allegedly charged with violating, Penal Code 46.02 (c) was
presented by William P. Keith to the prosecutor to be charged when William P. Keith knew that
he was stimulated legal process by making false statements in his affidavit EXHIBIT A when it
was within his personal knowledge that I was directly enroute to my private car, and was in fact
in my private car when I was unlawfully arrested for possessing a handgun while in my car,
although the indictment EXHIBIT B states that “the defendant was not inside or directly enroute
to motor vehicle”, which on its face contradicts the officer’s affidavit.
In the officer affidavit, William P. Keith was aware that he was making a false statement
when he advised that the convenience store had the 51% sign, because the 51% sign is for
establishments that are licensed to sell alcoholic beverages for on-premises consumption whose
alcohol sales constitutes more than half of gross receipts. See
https://www.tabc.state.tx.us/laws/sign_requirements.asp These sign have 51% in large red letters
superimposed over the warning and the warning notes that possession of a concealed weapon on
the premises is a felony. There in fact was no sign posted as required per TABC to warn
customers that the business is an establishment that sells alcoholic beverages.
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Penal Code 46.02 read as follows: (a) A person commits an offense if the person: (1)
intentionally, knowingly, or recklessly carries on or about his or her person a handgun, or club;
and (2) is not: (B) inside of or directly en route to a motor vehicle or watercraft that is owned by
the person or under the person’s control. The officer affidavit clearly states that I was en route to
my car and then inside of my car without any incidents.
After being arrested pursuant to a bond forfeiture, I was charged with violating Penal
Code 46.02, in which is only an offense if: a person intentionally, knowingly, or recklessly
carries on or about his or her person a handgun or club; and (2) is not: inside of or directly en
route to a motor vehicle or watercraft that is owned by the person or under the person's control.
EXHIBIT A is the arrest report that states that I was directly en route to my car, and in
fact, inside of my car when I was arrested without incident. EXHIBIT B is the indictment, and
on its face contradicts what the affidavit for arrest warrant was attested to. There is nothing in the
indictment that state the facts relied upon to support that I, Quincy Blakely intentionally or
knowingly, carried on or about with a handgun. In fact, the report shows that I was compliant
and was arrested without incident.
I filed a Pre-Trial Writ of Habeas Corpus in the 211th Judicial District Court of Denton
County challenging the following which was denied, and an appeal followed in the Second Court
of Appeals:
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Issued Presented:
(1) Arrested without an arrest warrant
(2) Constitutionality of Statute
(3) Failure to Arraign
(4) Denial of right to a probable cause determination hearing
(5) Indictment failed to inform the charge against me to prepare a proper defense
(6) Challenge the jurisdiction of the Trial Court.
Arrest without an Arrest Warrant
On April 13, 2017 at 12:25am, I was arrested for an alleged unlawfully carrying a
firearm Penal Code 46.02 without a warrant being issued based upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized. I was not engaged in criminal activity, but in my private car when I was
ordered to exit my car after I had just walked out of a convenience store located at 26748 E.
University Drive Little Elm, Texas. There were no exigent circumstances that existed that would
have prevented William P. Keith from obtaining an arrest warrant if he believed that I was
committing the felony of unlawfully carrying a firearm. His own affidavit states that I went into
the store then came out and got into my car, and was then removed from my car and arrested
pursuant to a bond forfeiture warrant. At no time was William P. Keith aware I possessed a hand
gun or did he even allege that I possessed a handgun and was acing intentionally, knowingly or
recklessly while enroute to my car and while in my car. In fact, he stated that there were no
incidents.
Probable cause depends on whether the officers “possess[ed] knowledge that would
warrant a prudent person's belief that [the suspect] had already committed or was committing a
crime.” Eugene, 65 F.3d at 1305. The arresting officer state’s in his own report that he was not
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aware that I had a weapon until I advised him that I did when I was told I was under arrest for an
outstanding warrant.
Constitutionality of Statute
Penal Code 46.02 is unconstitutional as applied to me, Quincy Blakely because I was
directly en route to my private car, and in fact was inside of my car when I was charged with
violating penal code 46.02.
Provision of Code of Criminal Procedure Chapter 14 Arrest Without Warrant, will
cause the Court to deprive me of my protected right guaranteed by the Fourth Amendment to the
United States Constitution and Texas Constitution Article 1 Sec. 9, to be free from arrest without
a warrant base upon probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized. C.C.P Chapter 14 Arrest Without
Warrant cannot be constitutionally applied to effect a warrantless arrest in a place, my car, that I
was allowed by law to be.
Failure to arraign
C.C.P Art. 26.01 requires arraignment in all felony cases. As of the date of this Petition, I have
yet to be arraigned. There was an appearance, Article 15.17 hearing, before Magistrate Robin
Ramsay allegedly on April 13, 2017, the date of the arrest, but I have not been arraigned on the
charge of unlawfully carrying a firearm or given a plea.
No Judicial Determination of Probable Cause
As of May 9, 2018, more that one year after the arrest on April 13, 2017, I have not been
afforded a right to a judicial determination of probable cause hearing. I was arrested without a
warrant, appeared for an Article 15.17 hearing, but before the Article 15.17 hearing or at anytime
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thereafter, I have never appeared for a probable cause determination hearing. Probable cause has
not been determined prompt or otherwise, which is a denial of my right to due process of law.
County of Riverside v. McLaughlin
Indictment failed to charge an offense
The indictment alleges that Quincy Blakely did “intentionally and knowingly carry on or
about a handgun on a premises licenses or issued a permit by the State of Texas for the sale of
alcoholic beverages, and defendant was not on defendant’s own premises or premises under the
defendants control, and the defendant was not inside of or directly en route to a motor
vehicle……………
The indictment is defective as convenience store I walked out does not have a license
issued by the State of Texas for the sale of Alcoholic Beverages, the State of Texas does not
regulate alcohol.
Indictment does not explain any events that led up to me, Quincy Blakely allegedly
intentionally and knowingly carry on or about a handgun on the premises of a convenience store
that sells alcoholic beverages, nor does it allege with reasonable certainty the act or acts
relied on to constitute the culpable mental states of knowingly and intentionally. This
information is essential to fair notice of the charges against I must defend.
Texas law guarantees an accused the right to have an indictment present fair notice of the
charges against him. Article I, Section 10, of the Texas Constitution provides that, “[i]n all
criminal prosecutions the accused…shall have the right to demand the nature and cause of the
accusation against him, and to have a copy thereof.” Additionally, Articles 21.04 and 21.11 of
the Texas Code of Criminal Procedure require that an indictment must contain “that degree of
certainty that will give the defendant notice of the particular offense with which he is charged”
and “enable the accused to plead the judgment that may be given upon it in bar of any
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prosecution for the same offense.” Tex. Code Crim. Proc. Ann. arts. 21.04, 21.11 (Vernon
1989).
Indictment No F172106-211 does not allege each element of the offense of unlawfully
carrying a firearm, which is intentionally and knowingly. There is no listing in detail the specific
acts relied upon that me walking into a convenience store and getting into my car, I knowingly or
intentionally committed the offense of unlawfully carrying a firearm.
The en banc Texas Court of Criminal Appeals has recognized that the requirement that
indictments give adequate notice implicates “fundamental notions of fairness.” Drumm v. State,
560 S.W.2d 944, 946 (Tex.Crim.App. 1977) (en banc). Accordingly, “[t]he accused is not
required to anticipate any and all variant facts the state might hypothetically seek to establish.”
Id. at 947.
The indictment must allege on its face the facts necessary (1) to show that the offense
was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the
defendant notice of precisely what he is charged with. See: Sassano v. State, 163 Tex. Crim. 345,
291 S.W.2d 323. Indictment number F172106-211 alleged on it’s face, acts contrary to what the
officer affidavit allege, which was I, Quincy Blakely was not en reoute to my car, when in fact
the officer affidavit stated plainly that I was en route to my car, then was inside of my car.
Texas law also clearly requires that the notice of the charges must come from the face of
the indictment alone. Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App. 2000); Miller v. State,
909 S.W.2d 586, 591 (Tex.App.-Austin, 1995); Voelkel v. State, 501 S.W.2d 313, 315
(Tex.Crim.App.1973); See, e.g., Benoit v. State, 561 S.W.2d 810,813 (Tex.Crim.App. 1977). It
is, of course, not sufficient to argue that the accused knew with what offense he was charged;
rather, the inquiry must be whether the face of the indictment furnished that information in plain
and intelligible language. Miller at 591; Benoit at 813; Riney at 565. Moreover, it is improper to
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look to the record of the case in order to determine whether the charging instrument constitutes
adequate notice. Adams v. State, 707 S.W.2d 900,901 (Tex.Crim.App. 1986), citing Bonner v.
State, 640 S.W.2d 601 (Tex.Crim.App.1982)
Jurisdiction of the Trial Court
Under the "fundamental defect" doctrine, the Court has ruled that every essential element of the
Penal Code offense being alleged must be stated in the written charges with precision, in terms
drawn from the Penal Code itself and from the cases interpreting the code ... in order for the trial
court even to have jurisdiction to hear the case. Studer v. State 799 S.W.2d 263 (1990)
Respectfully submitted:
/s/ Quincy Blakely
2701 Little Elm Parkway #100-551
Little Elm, Texas
quincyblakely@gmail.com
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APPENDIX
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EXHIBIT A
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EXHIBIT B
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PRAYER FOR RELIEF
For the above reasons, I, Quincy Blakely respectfully prays that this Court grant
this Petition, order briefing and oral argument and decide the issue and advise the
Court of Appeals concerning the properly applicable law in Texas and for any
further relief to which he may be entitled at law, in equity and under this Court’s
supervisory power.
Respectfully submitted:
/s/ Quincy Blakely
2701 Little Elm Parkway #100-551
Little Elm, Texas
quincyblakely@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above Petitioner’s Petition for Discretionary
Review has been sent via E-file.Texas.gov, as registered participants, on this the
29th day of May 2018 to the following: Paul Johnson District Attorney.
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements of Tex.
R. App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes and contains 2544 words.
This document does comply with the word-count limitations of Tex. R. App. P.
9.4(i) (3).
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