1

No. _________ 

 

In the 

Texas Court of Criminal Appeals 

At Austin 

—————————— 

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 

—————————— 

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 ATCHLEY 
2

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . . . . . . ...END
3

INDEX OF AUTHORITIES 

CASES 

 

Doyle v. Ohio, 426 U.S. 610 (1976) 5 

Ex parte Skelton, 434 S.W.3d 709 (Tex.App.–San Antonio 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 parties to the Trial Court’s Judgment and their 

counsel in the Trial Court: 

TRIAL COURT: 336th 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) 893-1734 

 
4

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 336th Judicial District Court of Fannin County, 

Texas to the charge of felony bail jumping - failure to appear, and 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 affirmed 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 his 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 SILENCE OF MICHAEL ATCHLEY IN HIS 

NOT RESPONDING TO THE JUDGMENT NISI. 

2. THIS COURT SHOULD CORRECT THE JUDGMENT TO REFLECT MR. 

ATCHLEY’S BACK TIME FROM MARCH 20, 2015. 

ARGUMENT IN SUPPORT OF REVIEW 

The State called Assistant District Attorney Ben Kaminar, who prosecuted the bond 

forfeiture allegation of Mr. Atchley, to testify as an expert witness as to the bond forfeiture 

proceedings against Mr. Atchley. Counsel objected to this line of testimony “as to Mr. 

Atchley’s lack of response to the civil case as a violation of the Fifth Amendment and Mr. 

Atchley’s right to remain silent...” 
5

In preliminary questioning, Mr. Kaminar said his 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 presented for Mr. Atchley’s failure to appear. 

This testimony was not limited to Mr. Atchley’s pre-arrest silence, but also included post-arrest 

silence up to the date of trial. 

Officer Caleb Hackney testified that he arrested 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 right 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 post-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 remain 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 Clause 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 (Tex.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 of 
6

an individual's exercise of his constitutional rights after the State'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 unfair to simultaneously 

afford a suspect a constitutional right to silence following his receipt of his Miranda warnings 

and then allow the implications of that silence to be used against him. Doyle, 426 U.S. at 619, 96 

S.Ct. at 2245. Silence “does not mean only muteness; it includes the statement 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 express 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 collateral implication of a defendant's invocation 

of his right to remain silent 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-protected 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 following the 702 hearing on 

Mr. Kaminar’s testimony. The Court nevertheless 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. Atchley’s duty to respond to the judgment nisi, and 
7

Mr. Atchley’s failure to ever respond to the allegations or provide an excuse on his failure to 

appear. 

Under Texas Code of Criminal Procedure 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. Atchley 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 appear 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 judgment NISI, but did receive a response from the 

bondsman. It then goes on to hold that only Mr. Atchley’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 respond to the judgment 

nisi between March 20, 2015 and the close of the State’s evidence was post-arrest silence. Mr. 

Atchley’s failure to respond to the judgment NISI between October 2, 2015, and the close of the 

State’s evidence was evidence of post-arrest silence. 

Michael Atchley respectfully requests that this Court grant discretionary review and 

correct this Constitutional error. 
8

Time Credit 

Additionally, Caleb Hackney testified 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 custody from March 20, 2015, to the date of judgment 

of November 13, 2015. Mr. Atchley’s sentence 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 the 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 the time of his arrest and confinement until his sentence by 

the trial court... 

Mr. Atchley respectfully requests, in the event 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. Atchley’s failure to appear in this case, Atchley 

should receive back time credit to the date of arrest. It is not a normal procedure to issue a new 

warrant for the crime of failure to appear, and Mr. Atchley getting credit only 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 serving time in Louisiana with detainers from 

Texas. 

PRAYER FOR RELIEF 

Mr. Atchley respectfully prays that this Honorable Court of Criminal Appeals review the 

entire record from all the proceedings below and grant this Petition for 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 correct copy of this 

Petition for Discretionary Review of Appellant 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