ORAL ARGUMENTS REQUESTED

NO. 12-14-001420CR

IN THE COURT OE APPEALS

I2TH JUDICIAL DISTRICT

TYLER. TEXAS

FILED IN COURT OF APPEALS

12th Court of tooeals District

CATHV S. LUSK. CL

HENRY M. SWINNEY

VS.

THE STATE OF TEXAS.

APPELLEE

ON APPEAL IN CAUSE NUMBER I 14-1350-13

FROM THE 1 14TO DISTRICT COURT

OF SMITH COUNTY, TEXAS

THE HONORABLE CHRISTY KENNEDY. JUDGE PRESIDING

HENRY M. SWINNEY

U1935892

CHOICE MOORE UNIT

1700N FM87

BONHAM, TX 75418

APPLICANTS PRO SE BRIEF
IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

HENRY MARCUS SWINNEY

APPELLANT'S TRIAL COUNSELLOR:

LAJUANDA LACY

2410 CECIL

TYLER, TX 75702

LAW OFFICE OF JEREMY COE

EDWARD ESTRADA - RETAINED

MODESTO ROSALES

423 S. SPRING ST.

TYLER, TX 75702

APPELLANT'S APPELLATE COUNSEL:

JAMES HUGGLER

100 E. FERGUSON, SUITE 805

TYLER. TX 75702
APPELLEE:

THE STATE OF TEXAS

APPELLEE'S TRIAL COUNSEL:

JACOB PUTTMAN

CHRISTOPHER GATE WOOD

LUCAS MACHICEK

SMITH COUNTY CRIMINAL DISTRICT' ATTORNEY'S OFFICE

100 NORTH BROADWAY, 4TH FLOOR

TYLER, TX 75702

(903)590- 1720

(903)590- 1719

APPELLEE'S APPELLATE COUNSEL:

MICHAEL. WEST

SMITH COUNTY CRIMINAL DISTRICT ATTORNEY'S OFFICE

100 NORTH BROADWAY, 4TFI FLOOR

TYLER. TX 75702

(903)590- 1720

(903) 590-1719 (FAX)

I
Table of Contents

Identity of Parties and Counsel /

Table of Contents _3

Table of Authorities J

Statement of the Case f?

Oral Argument u?

Issues Presented

Statement of Facts

Summary of Argument

Argument

Personal Evaluation of the Record

Conclusion /'3

Prayer 13

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S

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10

it
TABLE OF AUTHORITIES

STATUTES:

TEXAS PENAL CODE ANN 22.01 (A)(1) WEST 202 (g) + PAGE 1

TEXAS PENAL CODE ANN 22.01 (b)(2)(a) WEST 202 (G) + PAGE

CASES:

STATE VS. CASTELLANO

RULES:

NO RULES MENTIONED IN PRO SE BRIE

4
ORAL ARGUMENT REQUESTED

NO. 12-14-00142-CR

HENRY MARCUS SWINNEY, IN THE COURT OF

APPEALS

APPELLANT

VS.

THE STATE OF TEXAS 12TH JUDICIAL COURT

APPELLEE

APPELLANT'S PRO SE BRIEF:

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF:

COMES NOW HENRY M. SWINNEY RESPECTFULLY SUBMITTING THIS BRIEF ON

APPEAL.

STATEMENT OF THE CASE:

APPELLANT WAS CHARGED BY INDICTMENT WITH THE FELONY OFFENSE OF

ASSAULT FAMILY VIOLENCE IN SMITH COUNTY ON AUGUST 22, 2013. CR1. TEXAS

PENAL CODE ANN S2201 (A)(1) AND (b) (2)(A) (WEST 2012). A JURY FOUND MR.

SWINNEY, MYSELF, GUILTY OF THE OFFENSE. CR101. FOLLOWING EVIDENCE AND

ARGUMENT THE JURY ASSESSED PUNISHMENT AT EIGHT (8) YEARS OF

CONFINEMENT. CR113. TIMELY NOTICE OF APPEAL WAS FILED CR 120-121 AND 130.

THE APPELLANT'S BRIEF FILED BY APPELLANT'S COUNSEL, JAMES HUGGLER, WAS

TIMELY FILED ON OR BEFORE DECEMBER 2, 2014.

5
ORAL ARGUMENTS

1. Efficiency of Counsel

2. Effectiveness of Counsel

3. Defense Exhibit P1

4. The Effects of Gardner's False Testimony

5. Asking law officer's to testify as forensic experts

6. counsel's inexperience in criminal trial

7. Multiple lies told by states witnesses

8. Defense Attorney sent defense witnesses home before trial started without my

consent. These witnesses wanted to testify and had valuable information to

share regarding my innocence. (Gary Simmons, Sherri Williams, bobby Gibson).

They all had knowledge towards my defense and were told they would not be

needed.

COURT TRIAL TRANSCRIPT SHOWS PROOF:

1. Suppressed video will show that Detective Gardner lied under oath.

2. Mr. Gatewood's closing argument was full of untrue conclusionary statements.

3. With statements of assault of 11/9/12 alone a retrial should be granted.

4. Judges ruler for discussing the case was broken, reported to counsel, and no

action was taken, counsel disregarded report.

5. Untrue facts told to the jury. Counsel given opportunity to reopen neither side

did. Jury made decisions based on untrue statements.

Based on dismissal of case 12-28239, all enhancements are premature.

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ISSUES PRESENTED:

EFFECTIVENESS/EFFICIENCY OF DEFENSE COUNSEL, v.12, p107

1. Defense Counsel prevented three different witnesses from testifying. They were all told that they

would not be needed. All three had some sort of knowledge and testimony to give that would of

presented reasonable doubt.

2. Mr. Estrada admitted to never having picked a jury (voir dire) before and had Mr. Modesto to sit

in.

3. Jeremy Coe had agreed to sit in trial and be co-counsel because of the lack of experience of Mr.

Estrada. Jeremy Coe never showed up. This left Mr. Estrada to stand alone with no previous

experience in criminal trial law.

4. Mr. Estrada did not pursue facts of prior alleged assault build up or relationship. He told me that

it was irrelevant, but it is not. State V, Castellano...disclose any matter.

5. Mr. Estrada himself asked questions of the judge and prosecuting attorneys in relationship to

suppressed testimony handling.

LAW ENFORCEMENT GIVING MEDICAL TESTIMONY

STATES WITNESSES DISCUSSING CASE IN HALLWAY IN PROXIMITY OF JURY

It was told to Mr Estrada that the prosecuting attorney and Ms. Swinney and Ms. Wilson were seen by a

reliable person discussing the case in the hallway as the jury was exiting the jury room. This allowed

them to hear opinions that were not expressed and caused the jury members to become prejudiced

against myself before hearing all the case. Nothing was done about this by any member of counsel.

KIM GARDNER'S FALSE TESTIMONY:

1. Gardner's statement of contacting me was false.

2. Can he show proof or time receipts?

3. Exhibit P1 entered but never mentioned.

1. States quote from witnesses original statement differs from actual witness testimony given under

oath. Ms. Swinney made reference to calmly cooking a meal of four courses, and was very

specific as to what was prepared, and yet by her own admission was hysterical for 3-4 hours later

Swinney guilty as charged in the indictment Evidence, testimony, and arguments, the jury

found

CONCLUSIONARY STATEMENT BY STATE NEVER PROVEN:

Mr. Gardner gave a false interpretation of me to be violent. (V.12 P16 L89) (V12 P42 L11-12)

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STATEMENT OF FACTS:

Appellant was charged by indictment with the felony offense of Assault Family Violence.

XII RR 10-11(2); Texas Penal Code Ann. 22.01 (a)(1) and (b) (2)(a) (west 2012).

Following, testimony, and arguments, the jury found Mr. Swinney guilty as charged in

the indictment. XII RR241, CR101.

Following testimony,evidence and argument of counsel the jury assessed an eight year

sentence CR113.

Reference to the Reporter's Record are designated "RR" with a Roman Numeral

preceding "RR" specifying the correct volume and a number following designating the

correct page.

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ARGUMENT SUMMARY:

I, Henry Swinney, after reviewing the court transcript record, would like to raise attention

to several issues for argument.

I. Efficiency/Effectiveness of Defense Counsel. I challenge Mr. Estrada's

experience in criminal law and trial procedures. Pointing out mistakes and

deficiencies during trial proceedings.

II. Law Enforcement testimony given as a medical examiner, Injuries were

inconsistent with sworn statement.

III. Detective Ken Gardner, while under oath, gave and or made false testimony and

swore to the aforementioned.

IV. States witness gives contradicting testimony from original report to match

injuries.

V. With no objection from defense, counsel gives conclutionary statements as facts,

unproven facts, in the presence of and directly made to the jury.

VI. Defense Exhibit P1 was offered into evidence without objection, but never

explained to the jury. Therefore, never correcting false testimony by the state and

states witnesses.

VII. Officer Hale, gives unsupported opinion of defendant to be violent with law

enforcement. A conclutionary statement falsely offered as fact. No history of

anything other than compliance with law enforcement or legal authority.

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ARGUMENT:

I, Henry Swinney, appellant in cause number 12-14-00142-CR , in the 12th Judicial

Court of Appeals, would like to raise seven points that I perceive to be erroneous and

argue the facts that my defense fell short of Effective.

FIRST RAISED POINT

Efficiency and effectiveness of counsel assistance. Edward Estrada does in fact work

for the law office of Jeremy Coe. Mr. Estrada was my retained counsel. Day one of the

trial, State V. Henry Swinney, at the start of Voir Dire, Mr. Estrada admits to me that he

has never participated in selecting a jury, therefore, he would have Mr. Modesto

Morales sit in to assist. XI RR 2

Mr. Estrada shows multiple accounts of incompetence in volume eight of the reporters

record VIII RR 4-11. The court has to remind Mr. Estrada how long he has been on the

case, and that motions were to be filed prior to trial. VIII RR 5. Mr. Estrada admits he

has not filed motions in a timely manner. The court tells Mr. Estrada "this is no way to

run a case." showing lack of efficiency and effectiveness. VIII RR 6. The court verbally

reprimands Mr. Estrada for his actions of filing motions untimely. VIII RR 8.

The court has to tell Mr. Estrada that motions cannot be viewed until they are filed. The

court also comments on counsels deficiency of being ready on time. VIII RR 9-19. On

several instances the court repeated the invocation of "THE RULE". XII RR 8,9,90,93;

yet, when it was reported to Mr. Estrada that" THE RULE" was being broken by states

witnesses in the hallway, he said, "it doesn't matter unless jury members are present."

In fact, the jury members were present as they were leaving the jury room. that;s not

what the judge said upon invocation of the said rule.

Mr. Estrada sent defense witnesses home saying they wouldn't be needed. Gary

Simmons, Bobby Gibson, and Sherri Williams Hague all showed up and were ready to

testify on my behalf, and without my prior approval they were told they wouldn't be

needed and that they could leave. Gary Simmons was a key witness to Ms. Swinney

and Ms. Wilsons conspiring the false report of the alleged assault. No references to

reporters record on these events.

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SECOND RAISED POINT:

I concur that law enforcement should not give testimony in likeness of a medical

examiner. It is my belief that with past threats of self-harm by Ms. Swinney to get

revenge by having me arrested and then dropping the charges a few days later, a more

appropriate medical analogy of the injury should have been given under oath, rather

than just the OPINION of law enforcement officers. XII RR 106,131. There should have

been a pathology report from a medical professional since at no time did Ms. Swinney

seek medical attention of any kind. And the report was filed several hours after she left

the residence on North Grand Avenue where the alleged assault was supposedly to

have happened.

THIRD RAISED POINT:

I would like to raise the point that Law Enforcement Detective Ken Gardner, of the Tyler

Police Department, gave false testimony on the witness stand, while under oath. Ken

Gardner gave false testimony of a class C Assault on Carolyn Swinney. He stated that

notes orl, Henry Swinney, confirmed guilt and paid a citation to Tyler Municipal Court.

When in fact Defense Exhibit P1 shows proof that a citation was in fact not paid and a

plea of not guilty was entered. The charges were dismissed due to insufficient evidence

and lackof prosecution. The jury was led to believe by a states counsel and Detective

Gardner that I was Guilty of a crime that did not occur. Mr. Estrada after receiving

Exhibit P1, never reopened argument to offer the information to the jury, as directed by

Judge Kennedy. Thus letting the jury make their decision believing false testimony. XIII

RR 36-38. State and Defense both rest never mentioning to the jury what Defense

Exhibit P1 is or what it pertains to. In regards to Ken Gardner's statement that I paid a

citation, no such comment was ever made.

FOURTH RAISED POINT:

During the states opening remarks, he is repeating from notes or sworn statement from

Ms. Swinney that assault was with an open hand. XII RR 14. Then in Ms. Swinney's

testimony on the stand she says that it was close fisted. XII RR 40. The alleged

"victim's" sworn testimony and under oath trial testimony differ in a perjurous manner.

The statement of open hand contradicts closed fist, and in regards to related injury,

;/
open hand would not have caused the "alleged" (self - inflicted) injury. So by this going

without correction by prosecution it was an act of knowingly encouraging perjury. Also

Defense Counsel never objected and another instance of ineffective counsel.

FIFTH RAISED POINT:

In relation to closing statements by states counsel, and no objection from defense

counsel, Mr. Gatewood makes a false statement of "two weeks later he is performing

another assault." XIII RR 48. There was only one assault charge on Ms. Swinney back

in 2012. Mr. Gatewood again makes a false conclusion that I had failed anger

management classes, when in fact I was enrolled, but the class had not begun yet. XIII

RR 49. This portrayed to the jury that I was a rebellious man and defiant to the tactics

taught in said class. A false conclusionary statement is not a factual evidence.

Furthermore it should have caused an objection from an experienced Defense Attorney.

SIXTH RAISED POINT:

Recapping specifically on Defense Exhibit P1; In State V Castenello, no one during

proceeding has the privilege of refusing to disclose any matter. States counsel as well as

Defense Counsel refused to disclose to the jury exactly what they were looking at when

Exhibit P1 was published to the courtroom. Never correcting false testimony heard by jurors.

XIVRR46; XIII RR 38.

SEVENTH RAISED POINT:

States' witness, Officer Collin Hale, gives unsupported testimony, in an opinionated

statement, alluding to the jury that I, Henry Swinney, would become violent with law

enforcement. With no record showing anything other than full compliance to law

enforcement of any other legal Authority figure. XII RR 109. No objection from Defense

Counsel. The statement, by Officer Hales, demeans defendants character and should

have been stricken.

PERSONAL EVALUATION OF THE RECORD:

After a thorough and exhaustive search and reading of the court records, I do believe that all

the points that I have raised are well documented, and therefore warrant closer evaluation

and scrutiny that will lead up to a new trial being given. Let the record speak for itself.

&
CONCLUSION:

The records show that a travesty of justice has occurred. A jury was caused to become

prejudiced toward a defendant because of false statements by state witnesses, and the

lack of a properly presented defense by a counsel man that was inadequate to say the

least and incompetent from the very beginning. In an attorneys quest to obtain a

retainer fee, he failed to acknowledge his inexperience and lack of general courtroom

knowledge. Key witnesses were not allowed to testify and an innocent man is currently

locked up and prevented from seeing his family and friends.

PRAYER:

It is appellant's prayer that a new trial be granted on the above mentioned grounds and

that the appellant's rights by the constitution be given for a chance at a fair unprejudicial

jury trial. Appellant prays for general relief.

A3
CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Motion has been delivered to

Michael West, Counsel for the State, at the addresses listed below on this the /o TM

day of rirf\l*^ , 2015 by hand delivery or regular mail or the State of

Texas electronic filing system.

Us*?'

/-f

Henry Swinney

Michael West

Smith County District Attorney's Office

100 North Broadway, 4th Floor

Tyler, Texas 75702

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