1 No. _________ In the Texas Court of Criminal Appeals At Austin

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No. 06-15-00215-CR In the Court of Appeals for the Sixth District of Texas At Texarkana

—————————— MICHAEL ATCHLEY, Appellant

v. STATE OF TEXAS, Appellee

—————————— PETITION FOR DISCRETIONARY REVIEW OF APPELLANT MICHAEL ATCHLEY

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Micah Belden 711 N. Travis Sherman, TX 75090 Telephone: (903) 744-4252 Fax: (903) 893-1734 State Bar No. 24044294 Board Certified in Criminal Law Texas Board of Legal Specialization Counsel for Appellant MICHAEL ATCHLEY2 TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . . . . . . 3 IDENTITY OF COURT, PARTIES AND COUNSEL...................................................3
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . ........... . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . . . 4
STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . . 4 QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . 4
ARGUMENT IN SUPPORT OF REVIEW............................. . . . . . . . . . . . . . . . . . . . ........... 4
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . ... . . . . 8 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... ... . . . . 9 CERTIFICATE OF COMPLIANCE........................................................................9
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . . . . . ...END3 INDEX OF AUTHORITIES CASES Doyle v. Ohio, 426 U.S. 610 (1976) 5 Ex parte Skelton, 434 S.W.3d 709 (Tex.App.–San An tonio 2014, pet. ref'd) 6 Ex. Parte Jasper , 538 S.W.2d 782 (Tex. Crim. App. 1974) 8 Griffith v. State, 55 S.W.3d 598 (Tex.Crim.App.2001) 5 Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App.1991) 6 Miranda v. Arizona, 384 U.S. 436 (1966) 5 Sanchez v. State , 707 S.W.2d 575 (Crim. App. 1986) 5 Wainwright v. Greenfield, 474 U.S. 284 (1986) 5 IDENTITY OF COURT, PARTIES AND COUNSEL The following is a complete list of all par ties to the Trial Court’s Judgment and their counsel in the Trial Court: TRIAL COURT: 336 th District Court Hon. Laurine Blake 101 E. Sam Rayburn, Suite 200 Bonham TX 75418 P.: (903) 583-2863 F.: (903) 640-1826 THE STATE OF TEXAS / Appellee: Mr. Richard Glaser Don Hoover, ADA 101 E. Sam Rayburn, Suite 301 P.: (903) 583-7448 F.: (903) 583-7682

MICHAEL ATCHLEY /Appellant: Mr. Micah Belden Attorney at Law 711 N. Travis Sherman, TX 75090 P.: (903) 744-4252 F.: (903) 893-17344 To The Honorable Court of Criminal Appeals of Texas: STATEMENT REGARDING ORAL ARGUMENT Appellant waives oral argument. STATEMENT OF THE CASE Michael Atchley pled not guilty in the 336 th Judicial District Court of Fannin County, Texas to the charge of felony bail jumping - failure to appear, a nd trial was had to a jury. He was convicted of the same on November 13, 2015, and the jury assessed his punishment at ten years confinement. STATEMENT OF PROCEDURAL HISTORY A panel of the Sixth Court of Appeals affi rmed the court’s trial court’s judgment on November 23, 2016 in an unpublished opinion. No motion for rehearing was filed. No mandate has issued. Appellant now files hi s petition for discretionary review. QUESTIONS PRESENTED FOR REVIEW 1. THE COURT OF APPEALS ERRED IN NOT REVERSING THE CASE DUE TO EVIDENCE OF POST ARREST SILEN CE OF MICHAEL ATCHLEY IN HIS NOT RESPONDING TO THE JUDGMENT NISI.
2. THIS COURT SHOULD CORRECT TH E JUDGMENT TO REFLECT MR. ATCHLEY’S BACK TIME FROM MARCH 20, 2015. ARGUMENT IN SUPPORT OF REVIEW The State called Assistant District Atto rney Ben Kaminar, who prosecuted the bond forfeiture allegation of Mr. Atchley, to testif y as an expert witness as to the bond forfeiture proceedings against Mr. Atchley. Counsel obj ected to this line of testimony “as to Mr. Atchley’s lack of response to the civil case as a violat ion of the Fifth Amendment and Mr. Atchley’s right to remain silent...”5 In preliminary questioning, Mr. Kaminar said hi s testimony would be relevant to the jury in that many of the legal defenses available in the forfeiture proceeding are available in the criminal case. The State asked him if he ever received an answer from Mr. Atchley in the bond forfeiture, which he did not, and no excuse was pr esented for Mr. Atchley’s failure to appear. This testimony was not limited to Mr. Atchley’s pr e-arrest silence, but al so included post-arrest silence up to the date of trial. Officer Caleb Hackney testified that he ar rested Mr. Atchley on March 20, 2015 for bail jumping, as well as the underlying offense of assault family violence. RR 3 217-218. Mr. Atchley did not bond out on either charge. Mr. Atchley had a Federal Constitutional ri ght to remain silent after arrest and Miranda , and a Texas Constitutional right to remain silent after arrest whether Mirandized or not. Sanchez
v. State , 707 S.W.2d 575 (Crim. App. 1986). The admission of Mr. Kaminar’s testimony that Mr. Atchley had a duty to respond to the judgment nisi, and the testimony that he did not, was a violation of Mr. Atchley’s right to remain silent. It is fatal to the state’s case that the testimony was not limited to pre-arrest silence. The use of pos t-arrest silence violates the right to be free of self-incrimination, and is not probative as an instance prior inconsistent conduct. Id. , at 578. It is indisputable that Mr. Atchley had a right to re main silent after arrest. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). “The guaranty of fundamental fairness in the Due Process Clau se forbids the government from making the Miranda promises and breaking them by using a suspect's exercise of a right as evidence against him.” Griffith v. State, 55 S.W.3d 598, 605 (Te x.Crim.App.2001) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)); see also Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S.Ct. 634, 640, 88 L.Ed.2d 623 (1986) (“What is impermissible is the evidentiary use of6 an individual's exercise of his c onstitutional rights after the Stat e's assurance that the invocation of those rights will not be penalized.”). Use of a defendant's silence for either substantive or impeachment value is constitutionally prohibited; it is fundamentally unf air to simultaneously afford a suspect a constitutional right to silence following his receipt of his Miranda warnings and then allow the implications of th at silence to be used against him. Doyle, 426 U.S. at 619, 96 S.Ct. at 2245. Silence “does not mean only mutene ss; it includes the statem ent of a desire to remain silent.” Wainwright, 474 U.S. at 295 n. 13, 106 S.Ct. at 640 n. 13. Introduction of a defendant's expr ess invocation of his right to remain silent is prejudicial to a defendant because the introduction of such evidence invites the jury to draw an adverse inference of guilt from the exercise of a constitutional right. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991); Ex parte Skelton, 434 S.W.3d 709, 719 (Tex.App.–San Antonio 2014, pet. ref'd). In other words, the probable coll ateral implication of a defendant's invocation of his right to remain sile nt is that he is guilty. See Skelton, 434 S.W.3d at 719. It follows that, if a defendant invokes his right to remain silent after receiving his post-arrest Miranda warnings, the State cannot use the defendant's invocation of his constitutionally-prot ected right to remain silent as evidence of his guilt at trial. See Hardie, 807 S.W.2d at 322; Skelton, 434 S.W.3d at 719. Counsel objected to the Fifth Amendment violation and the violation of Mr. Atchley’s Texas right to remain silent above, outside the presence of the jury follo wing the 702 hearing on Mr. Kaminar’s testimony. The Court neverthe less allowed Mr. Kaminar to testify with no restrictions. Counsel objected to the Fifth Amendment violation again on Mr. Kaminar’s testimony in front of the jury regarding Mr. Atch ley’s duty to respond to the judgment nisi, and7 Mr. Atchley’s failure to ever respond to the allegations or pr ovide an excuse on his failure to
appear. Under Texas Code of Criminal Proce dure 15.17, Mr. Atchley would have been Mirandized on the failure to appear/bail jumping no later than October 2, 2015. Mr. Kaminar’s testimony included Atchley’s silence between October 2, 2015 and the end of the State’s evidence. The question was not whether Mr. Atch ley answered the NISI by the due date, as the Court of Appeals focused on, but on whether he ever answered: Q. Okay. Did you ever receive any notice from the principal, Mr. Atchley, about any kind of reason or excuse for failing to ap pear on February 25th of this year? MR. BELDEN: Your Honor, I'll object under the Fifth Amendment. THE COURT: The objection is overruled. You may answer.

A. (By the Witness) No, I did not. RR 3 p. 159. As the Court of Appeals noted in its opinion, Mr. Kaminar testified that he never received any response from Mr. Atchley to the judgmen t NISI, but did receive a response from the bondsman. It then goes on to hold that only Mr. At chley’s pre-arrest silence was introduced at trial. However, this is inconsistent with Officer Hackney’s testimony that he arrested Mr. Atchley for bail jumping on March 20, 2015. Mr. Atchley’s failure to re spond to the judgment nisi between March 20, 2015 and the close of the State’s evidence wa s post-arrest silence. Mr. Atchley’s failure to respond to the judgment NI SI between October 2, 2015, and the close of the State’s evidence was evidence of post-arrest silence. Michael Atchley respectfully requests that th is Court grant discretionary review and correct this Constitutional error.8 Time Credit Additionally, Caleb Hackney testif ied he arrested Mr. Atchley specifically for this charge of bail jumping on March 20, 2015. The judgment below only reflects 85 days back time credit. However, Mr. Atchley was in continuous cust ody from March 20, 2015, to the date of judgment of November 13, 2015. Mr. Atchley’s senten ce was not “stacked” until that day. Article 42.03, section 2 of the Texas Code of Criminal Procedure provides, in pertinent part, as follows: (a) In all criminal cases the judge of the court in which th e defendant is convicted shall give the defendant credit on the defendant's sentence for the time that the defendant has spent: (1) in jail for the case, other than confinement served as a condition of community supervision, from th e time of his arrest and conf inement until his sentence by the trial court... Mr. Atchley respectfully requests, in the even t this conviction is not overturned, that the judgment be amended to show 238 days of back time credit as of November 13, 2015 on the bail jumping – failure to appear charge. Since Officer Hackney testified that he arrested Atchley for “bond jumping” on March 20, 2015, and the Court issued warrants for Mr. Atchle y’s failure to appear in this case, Atchley should receive back time credit to the date of ar rest. It is not a normal procedure to issue a new warrant for the crime of failure to appear, and Mr . Atchley getting credit onl y to the time he is booked in on indictment offends due process, much like the prisoners in Ex. Parte Jasper , 538 S.W.2d 782 (Tex. Crim. App. 1974) who were servi ng time in Louisiana with detainers from
Texas. PRAYER FOR RELIEF Mr. Atchley respectfully prays that this Honor able Court of Criminal Appeals review the entire record from all the proceedings below a nd grant this Petition fo r Discretionary Review.9 Respectfully submitted, __/s/_________________ Micah Belden 711 N. Travis Sherman, TX 75090 Telephone: (903) 744-4252 Fax: (903) 476-5555 State Bar No. 24044294 Board Certified in Criminal Law Texas Board of Legal Specialization Counsel for Appellant MICHAEL ATCHLEY

CERTIFICATE OF SERVICE I do hereby certify that on this December 23, 2016, a true and co rrect copy of this Petition for Discretionary Review of Appella nt MICHAEL ATCHLEY, was forwarded by first class mail to:
Don Hoover Assistant Fannin County District Attorney 101 E. Sam Rayburn, Third Floor Bonham, TX 75418 Counsel for Appellee State of Texas State Prosecuting Attorney P.O. Box 12405 Austin, TX 78711 _______________/s/_______________ Micah Belden CERTIFICATE OF COMPLIANCE I certify that this document conforms with the word count requirements of the Texas Rules of Appellate Procedure, containing 2,089 words which are not exempted under the rules. ______________/s/________________ Micah Belden