THE STATE OF TEXAS

Respondent

V.S.

SAMUEL BENITEZ

Cestui Que Vie Trust,

Petitioner

N.o TC# F-085659R-H

CRIMINAL DISTRICT COURT NO. 1

DALLAS COUNTY, TEXAS

PETITION FOR PRODUCTION AND

INSPECTION OF GRAND JURY PROCEEDINGS

AND/OR TESTIMONY

TEXAS CODE CRTM. PROC. ARTTC.LE 20.02(d)(e)

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, SAMUEL BENITEZ, Petitioner in the above stvled and cause, Pro Se,

Resnectfullv moves the court pursuant fo Texas rode of Criminal Procedure

(T.C.C.P.) Article 1.26, ArH.de 20.02(dWe) , Article 20.19 and Article 1,

Section 10 and 19 of the Texas Consti*nfcion. The Petitioner Shows the followinq;

1) Petitioner, SAMUEL BENITEZ, without counsel is relying on Haines v. Kerner,

40^ U.S. 519, for less stringent pleading standards.

2) Petitioner is incarcerated in the Texas Department of Criminal Justice

Institutional Division-Bill Clements Unit. In this present incarceration:.

Peitioner is at a disadvantage due to not having access to legal reference

materials in Prison on par with those of the District Attorney's Office and

and other Persons answering this Petition.

3) This Petition is in accordance with (T.C.C.P) and the Laws of Texas upon

which Petitioner relies, same binding as promised performance, a benefit

due this Petitioner, an entitlement to equal Protection of the law under

administration of Justice Procedures.

4) SAMUEL BENITEZ, the Petitioner herein is a Cestui Que Vie Trust unless

otherwise evidenced. See TEXAS RULES OF CIVIL PROCEDURE Rule 52

5) Petitioner requests that he be permitted to examine and and all testimony

of each witness that testified before the Grand Jury. pRfiSElVIHDzll^ need

COURT OF CRIMINAL APPEALS

MAY 27

&osta,t
for the Grand Jury witness testimony— is a strong: interest in ensuring

accuracy of testimony outweights government interest in secerecy. In re

Grand Jury, 490 F.3d 978,988,990. (D.C. Cir.2007). Petitioner contemplates

that a particularized need for the testimony can be shown as follows:

a. To discover impeachment evidence

b. To discover Prior inconsistent Statements- Washington v. Texas 388 U.S.

14 (1967)

c. To discover mitigating and exculpatory evidence- Brady v. Maryland, 373

U.S. 83 (1963).

d. All witnesses that testified in Grand Jury testified on direct examination

pursuant to the Jenks.Discovery Act 18 USC $ 3500.

The need for all witnesses that testified is hereby requested by Petitioner

In the alternative the specific testimony that Petitoner requests is as

follows:

ALMA AVALOS, who testified under Direct Examination

JESSENIA AVALOS, who testified under Direct examination

JENNY PATRICIA ABREGO, who testified under Direct examination

MARINA GARCIA, who testified under Direct examination

ROGELIO PORTILLO, who testified under Direct examination

DETECTIVE RICHARD DODGE, who testified under Direct examination

OFFICER BRANDON INNES, who testified under Direct examination

DETECTIVE EDUARDO IBARRA, who testified under Direct examination

ANDRA LEWIS-KRICK, who testified under Direct examination

VICKI HALL, who testified under Direct examination

6) In the interest of justice Petitioner is further pursuing relief from
his final conviction in a Habeas Corpus Petition under the Gateway Claim

-Schlup v. Delo,. 115 S.Ct. 851 (1995). In his claim, Petitioner is asserting

trial counsel was ineffective. Upon such assertion, Inorder to find that

counsel was effective, an inquirey must be made according to Tex. Code of

Crim. Proc. Article 27.03. Accordingly, Petitioner was relying on trial counsel

to know the law and represent him to the best of counsels Knowledge. The

Law states," All objections and exceptions to the charging instrument must

be made in writing (T.C.C.P.) Art. 27.10; A motion to set aside , dismiss,

or quash an indictment should be made at the first opportunity and must be

presented to the trial court prior to.that Party's announcement of ready."

Neal v. State, 150 S.W.3d ,169(Tex. Crim. App. 2004); Where counsel is to

Motion to Setaside indictment Counsel must do so based on the following:

1. That it appears by the record of the court that the indictment was not

founded by at least nine Grand Jurors, or that the information was not based

upon a valid complaint;

2. That some person not authorized by law was present when the Grand Jury

was deliberating upon the accuation against the defendant, or was voting

the same;

3. That the Grand Jury was illegally impaneled;

Provided, however inorder to raise such question on a motion to setaside

the indictment, the Petitioner must show that he did not have an opportunity

to challenge the array at the time the Grand Jury was impanelled. As required

by Article 19 and 20 (T.C.C.P). Pe^vio^^ o^<^> tvn £».c.v iv\ceureev<xV<a4.

Furthermore, In Vasquez v. Hillery, The Supreme court held," That evidence

of racial discrimination in the Grand Jury selection process compromises
the structural protections because such abuses leave the reviewing court

incapable of determining, if a properly "constituted" Grand Jury would have

indicated the defendant, at 474 U.S. 254,264 (1986). In the interest of JUstice

Petitioner finds a Particularized need for the Grand Jury Proceedings.

7) The Petitioner requests the production of all the above. In Alternative

Petitoner requests the Review of that which the court .may order in part.

8) Under Article 20.02 (d) (T.C.C.P) Petitioner may petiton a court to order

the disclosure of a recording or typewritten transcriptions under Article

20.012 as a matter preliminary to or in connection with a Judicial Proceeding.

The court may order disclosure of information, recordings, or transcription

on a showing by the defendant of a particularized need.

(e) A Petition for disclosure under subsection (d) must be filed in the Dist

rict court in which the case is pending. The defendant must file also a copy

of thp petition with the Attorney representing the State, the Parties to

the Judicial Proceedings and any other required by the court to receive a

copy of the petition. All persons receiving aPetition under this subsection

are entitled to appear.before the court. The court shall provide interested

Parties with an opportunity to appear and present arguments for the continu

ation of or end to the required secrecy.

9) Finally, "In felony cases, filing a sufficient indictment invokes a court's

personal jurisdiction over the defendant."Fairfield v. State 610 S.W. 2d

771, 779(Tex. CRIM.APP.1981). The Indictment also gives the District Court

Subject Matter Jurisdiction. "Subject-Matter Jurisdiction never forfeited

or waived: U.S, V. Cotton, 535 U.S. 625, 630 (2002). "Jurisdiction may be
challenged at any time. Once State and Federal jurisdiction has been challenged

,it must be proven,-Texas Dept. of Public Safety;V,S<BXJyvor\y'26 S.W.3d 5.76

(Tex. App. Houston rlDist.n 2007^; Estrada v. State 1^8 S.W.3d>506)SubjectMatter Jurisdiction is a power that exists by operation of law only, and

cannot be conferred upon any court by consent or waiver, and thus a judgment

will never be considered final if the court lacked Subject-matter jurisdiction

-Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71; When a cause of action is derived

from a statute, the statutory provisions are mandatory and exclusive and

must be complied with in all respects or the actions is not maintainable

for ]ack of Jurisdiction- Grounds v.. Tolar Independant School Dist, 707 S.W.

2d 889; "A plea to the jurisdiction is a dilatory plea, its purpose is to

defeat a cause of action without regard to whether the claims asserted have

merit,"Nuecesr County v. Dale- Hoff, 105 S.W.3d 208. The Petitioner hereby

asserts that the . indictment is founded on fewer than the required number

of Grand Jurors votinq in favor of a true bill, The actual foreman failed

to deliver, the bill. Accordingly, Forgery of the forman's signature or even

inadvertent sigriiingq and returning of a bill in a case not reviewed by the

Grand Jury are all fundamental defects in charging instruments process which

would vitiate the instrument, vitiate trial Court jurisdiction and be subject

to first complaint on Appeal despite the failure to present objection prior

to trial on the merits. Aguilar v. State 810 S.W.2d 230

Petitioner asserts that the trial court had no Subject-Matter Jurisdiction

due to the Improper.grand jury proceedings, and void indictment.

For the reasons shown above Petitioner has asserted a Patricularized need

for. the disclosure of the Grand Jury Proceedings and/or Witness Testimony.
WHEREFORE: Good cause shown and in the interest of justice, the Petitioner

respectfully prays that this Court GRANT this Petition in all things

On jSj-h day of flJM 2015

RESPECTFULLY SUBMITTED,

By:

for SAMUEL BENITEZ-Cestui Que

Vie Trust, Petitioner

^1543909-Bill Clements unit

9601 SPUR 591

Amarillo, Texas 79107