ORAL ARGUMENTS REQUESTED NO. 12-14-001420CR

IN THE COURT OE APPEALS I2TH JUDICIAL DISTRICT TYLER. TEXAS FILED INCOURT OF APPEALS 12th Court oftooeals District

CATHVS. LUSK. CL

HENRY M. SWINNEY VS. THE STATE OF TEXAS. APPELLEE

ON APPEAL IN CAUSE NUMBER I 14-1350-13 FROM THE 114TO 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 BRIEFIDENTITY 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 75702APPELLEE: THE STATE OF TEXAS

APPELLEE'S TRIAL COUNSEL: JACOB PUTTMAN CHRISTOPHER GATEWOOD 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)



## ITable ofContents 

### IdentityofParties and Counsel / 

## TableofContents _3 Table ofAuthorities J 

## Statementofthe Case f? Oral Argument u? Issues Presented Statement of Facts Summary ofArgument Argument Personal Evaluation ofthe Record 

## Conclusion /'3 Prayer 13 

## 7 S °i 10 

### itTABLE OFAUTHORITIES

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



## 4ORAL 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 BYAPPELLANT'S COUNSEL, JAMES HUGGLER, WAS TIMELY FILED ON OR BEFORE DECEMBER 2, 2014.



## 5ORAL ARGUMENTS 1. Efficiency ofCounsel 2. Effectiveness ofCounsel 3. Defense Exhibit P1 4. The Effects ofGardner's FalseTestimony 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 myinnocence. (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 willshow that Detective Gardner lied underoath. 

### 2. Mr. Gatewood's closing argumentwas full ofuntrue conclusionary statements. 3. Withstatements ofassaultof 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 ofcase 12-28239, allenhancements are premature.



### 6ISSUES PRESENTED: EFFECTIVENESS/EFFICIENCY OF DEFENSE COUNSEL, v.12, p107 1. Defense Counsel prevented three differentwitnesses from testifying. They wereall 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 intrial and be co-counsel because of the lack ofexperience ofMr. Estrada. Jeremy Coe never showed up. This leftMr. Estrada to stand alone with no previous experience in criminal trial law. 4. Mr. Estrada did notpursue facts of prior alleged assault build up or relationship. He told me that itwas irrelevant, but it is not. StateV, Castellano...disclose any matter. 5. Mr. Estrada himselfasked 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 Itwastold toMr Estrada that theprosecuting attorney andMs. 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 againstmyself before hearing all the case. Nothingwas done aboutthis by any memberofcounsel.

KIM GARDNER'S FALSE TESTIMONY: 1. Gardner's statementofcontacting me was false. 2. Can he show proofor time receipts? 3. Exhibit P1 entered but never mentioned. 1. States quote fromwitnesses original statementdiffersfrom actual witness testimony given under oath. Ms. Swinney made reference to calmlycooking 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. Gardnergave a false interpretation of me to beviolent. (V.12 P16L89) (V12 P42 L11-12)



## 7STATEMENT OF FACTS: 

### Appellantwas charged by indictmentwiththe felony offense ofAssault FamilyViolence. 

### XII RR 10-11(2); Texas Penal CodeAnn. 22.01 (a)(1) and (b) (2)(a) (west2012). Following, testimony, and arguments, thejury found Mr. Swinney guilty as charged in the indictment. XII RR241, CR101. 

### Following testimony,evidence and argument ofcounsel thejury 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. 

## 8ARGUMENTSUMMARY: I, Henry Swinney, after reviewing the courttranscript 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, inthe presence ofand directly made to thejury. 

### VI. Defense Exhibit P1 was offered into evidence without objection, but never explained to thejury. Therefore, nevercorrecting false testimony by the state and states witnesses. VII. Officer Hale, gives unsupported opinion ofdefendantto be violentwith law enforcement. A conclutionary statement falsely offered as fact. No history of anything otherthan compliance with law enforcement or legal authority.



## 9ARGUMENT: I, Henry Swinney, appellant in cause number 12-14-00142-CR , in the 12th Judicial 

### Court ofAppeals, would like to raise seven points that Iperceive to be erroneous and argue the facts that my defense fell shortof Effective.

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

### forthe law office ofJeremy Coe. Mr. Estradawas my retained counsel. Day one ofthe 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 ofthe 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 ofefficiency and effectiveness. VIII RR 6. The courtverbally reprimands Mr. Estradafor his actions offiling motions untimely. VIII RR 8. The courthas to tell Mr. Estradathat motions cannotbe viewed untilthey arefiled. The court also comments on counsels deficiency ofbeing 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 itwas reported to Mr. Estrada that" THE RULE" was being broken by states witnesses in the hallway, he said, "itdoesn't matter unless jury members are present." 

### In fact, thejury members were present as they were leaving thejury room. that;s not whatthejudge said upon invocation ofthe 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.



### 10SECOND 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 thanjustthe 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 ofany 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: 

### Iwouldliketo raise the point that LawEnforcement Detective KenGardner, of the Tyler Police Department, gave false testimony on the witness stand, while under oath. Ken 

### Gardnergave false testimony of a class CAssault 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 proofthat a citation was in fact not paid and a plea of not guiltywas entered. The charges were dismissed due to insufficientevidence and lackof prosecution. Thejury was led to believe by a states counsel and Detective 

### Gardner that Iwas Guilty of a crime that did not occur. Mr. Estrada after receiving 

### Exhibit P1, never reopened argumentto 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 orwhat itpertains to. Inregards to Ken Gardner's statementthat Ipaid a citation, no such comment was ever made.

FOURTH RAISED POINT: 

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

### Ms. Swinney that assault was with an open hand. XII RR 14. Then in Ms. Swinney's testimony on the stand she says that itwas close fisted. XII RR 40. The alleged "victim's" sworn testimony and under oath trialtestimony 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 knowinglyencouraging perjury. Also Defense Counsel never objected and another instance ofineffective 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 "twoweeks later he is performing anotherassault." XIII RR 48. There was onlyone assaultcharge on Ms. Swinney back 

### in 2012. Mr. Gatewood again makes a false conclusion that I had failed anger management classes, when in fact Iwas enrolled, but the class had not begun yet. XIII RR 49. This portrayed to thejury that Iwas a rebellious man and defiant to the tactics taught in said class. A false conclusionary statement is not a factual evidence. 

### Furthermore itshould have caused an objectionfrom an experienced DefenseAttorney.

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 

### ExhibitP1 was published to the courtroom. Nevercorrecting false testimony heard by jurors. XIVRR46; XIII RR38.
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 

### enforcementof any otherlegal Authority figure. XII RR 109. Noobjectionfrom 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 ofthe court records, Ido believe that all the points that Ihave raised are well documented, and therefore warrant closer evaluation and scrutiny thatwill lead up to a new trial being given. Letthe record speakfor itself.



## &CONCLUSION: 

### The records showthat a travesty ofjustice has occurred. A jurywas caused to become prejudiced toward a defendant because offalse statements by state witnesses, and the 

### lack of a properlypresented 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 ofgeneral courtroom 

### knowledge. Keywitnesses 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 prayerthat 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. Appellantprays for general relief.



## A3CERTIFICATE OF SERVICE This is to certify that a copy ofthe foregoing Motion has been delivered to 

### MichaelWest, Counselforthe State, atthe addresses listedbelow on this the /o TM 

### day of rirf\l*^ , 2015 by hand delivery orregularmail or the State of Texas electronic filing system.
Us*?' /-f

Henry Swinney

Michael West Smith CountyDistrictAttorney's Office 

### 100NorthBroadway, 4thFloor Tyler, Texas 75702



### /</