ORAL ARGUMENT

NOT REQUESTED

NO.

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

ERNEST BENL MCINTYRE

Petitioner, Appellant

V.

THE STATE OF TEXAS

Appellee

On Petition for Discretionary Review

from the Third Appellate District of

Texas, in Appeal No. 03-12-00508-CR

and the 27th Judicial District of

Bell County in Trial No. 66893.

PETITION FOR DISCRETIONARY REVIEW

RECEIVED IN

COURT OF CRIMINAL APPEALS

JAN 08 2015

Abel Acosta, Clerk

ERNEST BENL MCINTYRE

202 Avenue F, Apt.#2

Moody, Tx. 76557

(254) 853-9146

PETITIONER, APPELLANT PRO SE

FILED IN

COURT OF CRIMINAL APPEALS

JAN 16 2015

Abel Acosta, Clerk
IDENTITY OF JUDGE, PARTIES & COUNSEL

Ernest Benl Mclntyre

202 Avenue F, Apt.#2

Moody, Tx. 76557

(254) 853-9146

Petitioner, Appellant pro se

James Hewitt

200 E. Central Ave., Ste.100

Belton, Tx. 76513

Trial Counsel For Petitioner

(Plea)

Tim Copeland

930 S. Bell Blvd.,Ste.408

Cedar Park, Tx. 78613

Appellate Counsel for Petitioner

Bob Odom

Asst.Dist.Attorney

P.O. Box 540

Belton, Tx. 76513

Appellate Counsel for State

Judge Joe Carroll

27th Judicial District

Bell County, Texas

Trial Judge (Retired)

Anthony Smith

18 S. Main St.,Ste.814

Temple, Tx. 76501

Trial Counsel for Petitioner

(Sentencing)

Paul & Leslie McWilliams

Asst.Dist.Attorneys

P.O. Box 540

Belton, Tx. 75613

Trial Counsel for State
ITEM TABLE OF CONTENTS PAGE

Identity of Judge, Parties & Counsel i

Table of Contents ii

Index of Authorities iii

Statement Regarding Oral Argument iv

Statement of the Case iv

Statement of Procedural History iv-v

GROUNDS FOR REVIEW

GROUND ONE

THE COURT OF APPEALS ERRED IN APPLYING A MGHTENED STANDARD OF REVIEW WHEN IT CONDUCTED

AN OUTCOME DETERMINATIVE TEST CONCLUDING THAT "WE HAVE REVIEWED THE RECORD AND FIND NO

REVERSIBLE ERROR," RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN

ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS" TO SUPPORT COURT

APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW 1-4

GROUND TWO

THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED APPELLATE'COUNSEL TO

WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW ATTENTION TO POTENTIAL ERRORS IN THE

RECORD 5-19

GROUND THREE

THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD CONTAINS NO ARGUABLE

BASES FOR APPEAL 5-19

Prayer 19

Certificate of Service 20

APPENDIX

EXHIBIT A 2. Memorandum Opinion

EXHIBIT B - Close up photos of suspect computer

EXHIBIT C - Close up photos of suspect monitor

EXHIBIT D - Photos of mass array of computer parts

ii
CASE INDEX OF AUTHORITIES PAGE

Anders v. California, 386 U.S. 738 (1967) iv,l,3,4,5,6,12,19

Arnold v. State, 853 SW 2d 543 (Tex.Crim.App. 1993) 17

Banks v. State, 341 SW 3d 428 (Tex.App.-Houston [1st Dist] 2009, no pet). 6

Beck v. State, 682 SW 2d 550 (Tex.Crlm.App.1985) 9

Black's Law Dictionary 9th Edition 2009 3,19

Bledsoe v. State, 178 SW 3d 824 (Tex.Crim.App.2005) 4,18

Brady v. Maryland, 373 U.S. 83 (1963) 12,14

Cook v. State, 902 SW 2d 471 (Tex.Crim.App.1995) 8

Cross v. State, 489 SW 2d 572 (Tex.Crim.App. 1973) 2

Currie v. State, 516 SW 2d 684 (Tex.Crim.App. 1974) 1,2,4

Durham v. State, 557 SW 2d 526 (Tex.Crim.App. 1977). 2

Eastep v. State, 941 SW 2d 130 (Tex.Crim.App. 1997) 8

Felton, Ex Parte, 815 SW 2d 733 (Tex.Crim.App. 1991) 15

Gainous v. State, 436 SW 2d 137 (Tex.Crim.App. 1969) iv,l,2,4,5

Garner v. State, 300 SW 3d 763 (Tex.Crim.App.2009) 4

Guzman v. State, 23 SW 3d 381 (Tex.App.-Houston [1st Dist] 1999, no pet) 2

High v. State, 573 SW 2d 807 (Tex.Crim.App. 1978) 1,2,4,5,6

Hill v. Lockhart, 474 U.S. 52 (1985) 13

Kniatt v. State, 239 SW 3d 910 (Tex.App.-Waco 2007, on rehearing, 255 SW 3d 311, pet.

ref'd) 17

Kyles v. Whitley, 514 U.S. 419 (1995) 12

Lewis, Ex Parte, 587 SW 2d 697 (Tex.Crim.App. 1979) 12,13,14

Luna v. State, 527 SW 2d 548 (Tex.Crim.App. 1975) 2

McCoy v. C.O.A. of Wisconsin, Dist. 1, 486 U.S. 429 (1988) 2

McLeod v. Harris, 582 SW 2d 772 (Tex.1979) 18

McManus v. State, 591 SW 2d 505 (Tex.Crim.App. 1979). 9

Miles v. State, 204 SW 3d 822 (Tex.Crim.App.2006) 15

Mowbray, Ex Parte, 943 SW 2d 461 (Tex.Crim.App. 1996) 12

North Carolina v. Alford, 400 U.S. 25 (1970) 13

Riney v. State, 28 SW 3d 561 (Tex.Crim.App.2000) 8

in
CASE INDEX OF AUTHORITIES CONTINUED PAGE

Roberson v. State, 617 SW 2d 708 (Tex.Crim.App. 1981) 2

Schulman, In Re, 252 SW 3d 403 (Tex.Crim.App.2008) 6,13,19

Scott v. State, 543 SW 2d 128 (Tex.Crim.App. 1976) .2

Sommers v. Concepcion, 20 SW 3d 27 (Tex.App.-Houston [14th Dist] 2000, pet.denied) 17

Stafford v. State, 813 SW 2d 503 (Tex.Crim.App. 1991) 12

Stephens v. State, 35 SW 3d 770 (Tex.App.-Houston [1st Dist] 2000, no pet) 2

Strickland v. Washington, 104 S.CT. 2052 (1984) 15,18

Studer v. State, 799 SW 2d 263 (Tex.Crim.App. 1990) 9

United States v. Chronic, 104 S.CT. 2039 (1984) 15

Vineyard v. State, 958 SW 2d 834 (Tex.Crim.App. 1998) 8

Wilson v. State, 976 SW 2d 254 (Tex.App.-Waco 1998, no pet) 4

Wilson v. State, 40 SW 3d 192 (Tex.App.-Texarkana 2001, no pet) 2,4

Wyatt v. State, 23 SW 3d 18 (Tex.Crim.App.2000) 14

STATUTES

Tex. R. Civ. Proc. Rule 18b.'(b)(1) & (b)(2)... 17

Tex. Code of Crim. Proc. Art. 1.14(b) 9

Tex. Penal Code § 43.26 iv

ma
STATEMENT REGARDING ORAL ARGUMENT

The applicable law is unambiguous, and the analysis required

to properly apply the law to the facts is not complicated.

Consequently, Petitioner does not believe that oral argument

would substantially aid the Court. Therefore, oral argument is

waived.

STATEMENT OF THE CASE

On.Febuary 16, 2012, Petitioner entered an open plea of guilty

to the trial court to the third degree felony offense of possession

of child pornography. (RR.3,p.4, and see TEX.PENAL CODE § 43.26).

On July 11, 2012, after preparation of a pre-sentence investigative

report and after hearing evidence and argument of counsel, the trial

court assessed a sentence of nine years cinfinement. (RR.5,p.64).

Petitioner was also ordered to register for life as a sex offender.

(RR.3,p.8).

STATEMENT OF PROCEDURAL HISTORY

Court appointed appellate counsel, Tim Copeland, filed a

motion to withdraw from the appeal supported by an ANDERS brief.

See ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); GAINOUS V. STATE,

436 SW 2d 137 (Tex.Crim.App.1969). In a Memorandum Opinion, the

Third District Court of Appeals affirmed Petitioner's conviction

iV
and sentence and granted court appointed appellate counsel's

motion to withdraw on June 4, 2014. See EXHIBIT A. After two

extensions of time were granted, Petitioner filed a motion for

rehearing en banc in the Third Court of Appeals which was

overrulled on October 10, 2014. After one extension of time was

granted, this petition for discretionary review follows.

GROUNDS FOR REVIEW

GROUND NO. ONE

THE COURT OF APPEALS ERRED IN APPLYING A HIGHTENED STANDARD

OF REVIEW WHEN IT CONDUCTED AN OUTCOME DETERMINATIVE TEST CONCLUDING

THAT "WE HAVE REVIEWED THE RECORD AND FIND NO REVERSIBLE ERROR,"

RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN

ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS"

TO SUPPORT COURT APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW.

GROUND NO. TWO

THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED

APPELLATE COUNSEL TO WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW

ATTENTION TO POTENTIAL ERRORS IN THE RECORD.

GROUND NO. THREE

THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD

CONTAINS NO ARGUABLE BASES FOR APPEAL.

V
ARGUMENT

GROUND NO. ONE

THE COURT OF APPEALS ERRED IN APPLYING A HIGHTEND STANDARD

OF REVIEW WHEN IT CONDUCTED AN OUTCOME DETERMINATIVE TEST CONCLUDING

THAT, "WE HAVE REVIEWED THE RECORD AND FIND NO REVERSIBLE ERROR,"

RATHER THAN APPLY THE CORRECT STANDARD OF REVIEW ARTICULATED IN

ANDERS V. CALIFORNIA, THAT AN APPEAL BE DEEMED "WHOLLY FRIVOLOUS"

TO SUPPORT COURT APPOINTED APPELLATE COUNSEL'S MOTION TO WITHDRAW.

Petitioner contends that the court of appeals decision issued

on June 4, 2014, conflicts with the decisions of the U.S. Supreme

Court and the Texas Court of Criminal Appeals as articulated in

ANDERS V. CALIFORNIA, 386 U.S. 738 (1967); GAINOUS V. STATE, 436

SW 2d 137 (Tex.Crim.App.1969), CURRIE V. STATE, 516 SW 2d 684 (Tex.

Crim.App.1974) and HIGH V. STATE, 573 SW 2d 807 (Tex.Crim.App.1978),

and that this Court is called upon to (1) exercise its supervisory

authority, and; (2) decide an important question of state or

federal law that has not been, but should be, settled by this

Court..Specifically, the court of appeals conducted an outcome

determinative test concluding that it found no reversible error

and thereafter granted court appointed appellate counsel's motion

to withdraw.

In ANDERS, the U.S. Supreme Court articulated that a court

appointed appellate attorney, after a FULL examination of the

record, may withdraw ONLY if he/she finds that an appeal is (

"wholly frivolous." See ANDERS, 386 U.S. at 744. Likewise, and in

conformity with ANDERS, this Court has applied the same standard
of review in GAINOUS, CURRIE AND HIGH, that an appeal must be

deemed "wholly frivolous" to support a motion to withdraw. See

GAINOUS, 436 SW 2d 137; CURRIE, 516 SW 2d 684 and HIGH, 573 SW 2d

807. The decisions of the Supreme Court in ANDERS and the Court of

Criminal Appeals in GAINOUS, CURRIE and HIGH, are all silent as to

any application of a standard of review that requires the reviewing

court to review the record for "reversible error" before allowing

a court appointed appellate attorney to withdraw.

This Court itself has omitted the use of this standard of

review for a number of years in other cases besides GAINOUS, CURRIE

and HIGH. See CROSS V. STATE, 489 SW 2d 572 (Tex.Crim.App.1973);

LUNA V. STATE, 527 SW 2d 548 (Tex.Crim.App.1975); SCOTT V. STATE,

543 SW 2d 128 (Tex.Crim.App.1976); DURHAM V. STATE, 557 SW 2d 526

(Tex.Crim.App.1977) and ROBERSON V. STATE, 617 SW 2d 708 (Tex.Crim.

App.1981); See also McCOY V. COURT OF APPEALS OF WISCONSIN, DIST.

1, 486 U.S. 429 (1988); GUZMAN V. STATE, 23 SW 3d 381 (Tex.App.-

Houston [1st Dist] 1999, no pet.); STEPHENS V. STATE, 35 SW 3d 770

(Tex.App.-Houston [1st Dist] 2000, no pet.) and WILSON V. STATE,

40 SW 3d 192 (Tex.App.-Texarkana 2001, no pet.). It would stand

to reason that the application of this standard of review which

requires a reviewing court to review the record for "reversible

error" was omitted from these opinions for good reason; that reason

being that in reviewing the record to determine whether an appeal

contains "reversible error" calls for a different result than
reviewing the record to determine whether an appeal is "wholly

frivolous."

The word "wholly", is defined as "not partially; fully;

completely." "Frivolous," is defined as "lacking a legal bases or

legal merit; not serious; not reasonably purposeful." See BLACK'S

LAW DICTIONARY, NINTH EDITION 2009. This would indicate that the

Supreme Court in ANDERS intended an appeal to be deemed fully,

completely and absolutely frivolous to support a court appointed

appellate attorney's motion to withdraw. On the other hand,

"reversible error" is defined as, "an error that affects a party's

substantive rights or the; case's outcome, and thus is grounds for

reversal if a party properly objected at trial." Id. Therefore,

reviewing the record to determine whether it contains "reversible

error" has the same effect as denying an appellate brief on the

merits when in fact no such;brief has been prepared by skilled

counsel, which further denies Petitioner his right to counsel on

appeal; the same right that is afforded to other defendants who

have the financial means to hire appellate counsel. This is in

conflict with the Supreme Court's holding in ANDERS. The Court's

primary concern in ANDERS was to provide framework that would

guarantee an indigent appellant the same rights and diligence on

appeal that are afforded one who is financially able to retain

his/her own attorney. See ANDERS, 386 U.S. 738 generally.

- •" At least two courts of appeals have concluded that "...the
appellate court need not be able to say with certainty that [an]

appeal has merit, the appellate court need only say that [an]

issue warrants further developement by counsel on appeal." See

WILSON V. STATE, 40 SW 3d at 200; and WILSON V. STATE, 976 SW 2d

254,257 n4 (Tex.App.-Waco 1998,no pet.). This would indicate

that these two courts of appeals have recognized a difference in

the standard of review as to whether the record contains "reversible

error" versus whether an appeal is "wholly frivolous," as required

by ANDERS to permit court appointed appellate counsel to withdraw

from an indigent's appeal; a fact that may have been overlooked by

this Court in GARNER V. STATE, 300 SW 3d 763 (Tex.Crim.App.2009),

which is the opinion relied upon by the court of appeals in the

present appeal. See also BLEDSOE V. STATE, 178 SW 3d 824,825 (Tex.

Crim.App.2005).

Accordingly, this Court is called upon to determine (l) whether

the court of appeals subjected Petitioner to a hightened standard

of review in concluding that it "finds no reversible error," and,

if so, (2) does this hightened standard of review conflict with

the Supreme Court's holding in ANDERS and this Court's application

of ANDERS in GAINOUS, CURRIE and HIGH, that an appeal be deemed

"wholly frivolous" to support a motion to withdraw by court appointed

counsel on appeal.
GROUND NO. TWO

THE COURT OF APPEALS ERRED WHEN IT ALLOWED COURT APPOINTED

APPELLATE COUNSEL TO WITHDRAW WHERE ANDERS BRIEF FAILED TO DRAW

ATTENTION TO POTENTIAL ERRORS IN THE RECORD.

GROUND NO. THREE

THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE RECORD

CONTAINS NO ARGUABLE BASES FOR APPEAL.

To avoid unnecessary duplication grounds two & three are

argued together.

The U.S. Supreme Court has determined that a court appointed

appellate attorney who represents an indigent defendant on first

appeal, may withdraw from from such appeal ONLY if he/she determines

that the appeal is "wholly frivolous," i.e., that there are no

arguable points of error to advance on appeal. See ANDERS V.

CALIFORNIA, 386 U.S. 738, 87 S.CT. 1396, L.Ed.2d 493 (1967); GAINOUS

V. STATE, 436 SW 2d 137 (Tex.Crim.App.1969). Should this occur,

counsel is required to discuss in his brief, the evidence adduced

at trial, point out where pertinent testimony may be found in the

record, refer to pages in the record where objections were made,

the nature of the objection, the trial court's ruling and discuss

either why the trial court's ruling was correct or why the appellant

was not harmed by the ruling of the court, or anything that "might"

arguably support the appeal. See HIGH V. STATE, 573 SW 2d 807 *
810-813 (Tex.Crim.App.1978). Thereafter, the court of appeals

is required to thoroughly review the record, INCLUDING MATTERS NOT

DISCUSSED IN THE BRIEF, to determine whether the appeal is "wholly

frivolous." Id at 811. If the court of appeals determines that

counsel did not address a potential ground for appeal, and the

court of appeals believes that the ground for appeal meets the low

threshold for disclosure in counsel's ANDERS brief, the court "will

(1) grant counsel's motion to withdraw, and;.(2) abate the appeal

and remand to the trial court for appointment of new appellate

counsel with directions to file a merits brief." See BANKS V. STATE,

341 SW 3d 428,431 (Tex.App.-Houston [1st Dist] 2009, no pet.)

citing IN RE SCHULMAN, 252 SW 3d 403,409 (Tex.Crim.App.2008).

Petitioner contends that (1) the issues presented herein meet the

low threshold for disclosure in counsel's ANDERS brief but were

not included and counsel did not explain why these issues should

not be briefed on appeal, violating the requirements of ANDERS and

HIGH, (2) that the court of appeals erred in allowing counsel to

withdraw without discussing the following issues in his ANDERS brief,

and; (3) that the court of appeals further erred in concluding that

the following issues should not be briefed by counsel on appeal.

DEFECTIVE INDICTMENT

Petitioner was indicted for possession of child pornography

pursuant to Penal Code § 43.26. The indictment states in pertinent
part:

..."did then and there intentionally and knowingly posses

visual material that visually depicted, and which the

defendant knew visually depicted A CHILD WHO was younger

than 18 years of age at the time THE IMAGE of THE CHILD

was made, engaging in sexual conduct, to-wit: actual

sexual intercourse."

(CR-4). It was to this indictment and ONLY to this indictment

that Petitioner entered an open plea of guilty on Febuary 16, 2012.

(RR.3,p.4 & 6). The State then entered Petitioner's Judicial

Confession without objection, identified as State's 1, which

tracked the language of the indictment verbatim. (RR.3,p.9)(CR-46).

Nothing in the record heretofore indicates that Petitioner was

being charged with, or had entered an open plea of guilty to,

anything more than one photograph depicting one child engaging in

sexual intercourse. However, during sentencing held July 11, 2012,

the State produced evidence that Petitioner was on trial for

possessing seven different images and four series of child

pornography which consisted of an unknown number of images because

testimony from Detective Gary Richards indicates that a "series"

means that it could be ten photos or it could be one hundred

photos of any one particular child. (RR.5,p.21). These images

were admitted into evidence without objection and were identified

as State's 3. (RR.5,p.34). The Index of Exhibits identifies State's

3 as a "Large number of images taken from E. Mclntyre's computer."

(RR.5,p.4). These images were all identified by the National
Center for Missing and Exploited Children to be actual items of

child pornography. (RR.5,p.20-21). Each of these images of child

pornography constitutes an allowable unit of prosecution in itself.

See VINEYARD V. STATE, 958 SW 2d 834,837-38 (Tex.Crim.App.1998).

The trial court reviewed these "large number of images" and

conducted "sort of a quick trial" while determining punishment.

(RR.5,p.63). Petitioner was sentenced to 9 years confinement.

The Texas Constitution guarantees to defendants the right to

indictment by a grand jury for all felony offenses. See COOK V.

STATE, 902 SW 2d 471,475 (Tex.Crim.App.1995). Both the Sixth

Amendment and Article 1, § 10, require that a defendant be given

notice before trial of the "nature and cause" of the accusation

against him, and require further that the notice be given with

sufficient clairity and detail to enable the defendant to

ANTICIPATE THE STATE'S EVIDENCE AND PREPARE A PROPER DEFENSE TO IT.

See EASTEP V. STATE, 941 SW 2d 130,132 (Tex.Crim.App.1997). Under

article 1, § 10, the requisite notice must come from the face of

the charging instrument. Id. The accused is not required to look

elsewhere. See RINEY V. STATE, 28 SW 3d 561,565 (Tex.Crim.App.2000).

In this case, Petitioner did not receive the required notice.

Petitioner had no idea that he pleaded guilty to a mountain of

child pornography images. It is not sufficient to say that Petitioner

knew with what offense he was charged. The inquiry must be whether

the charging instrument in writing furnished that information in
plain and intelligible language. See BECK V. STATE, 682 SW 2d 550,

554 (Tex.Crim.App.1985). The fundamental protections of adequate

notice and due process require careful examination and consideration

from the perspective of the accused. See MCMANUS V. STATE, 591 SW

2d 505,515 (Tex.Crim.App.1979). Petitioner contends that because

adequate notice is encompassed by fundamental protections and due

process, that the present indictment was fundamentally defective

and did not constitute an "indictment" under article V, § 12, of

the Texas Constitution. Should this Court find that this error

constitutes a defect in form or of substance requiring an objection

or pre-trial motion to quash, See STUDER V. STATE, 799 SW 2d 263,

268 (Tex.Crim.App.1990); see also TEXAS CODE OF CRIMINAL PROCEDURE

ART. 1.14(b), this error still raises a claim of ineffective

assistance of trial counsel for these omissions, as well as an

ineffective assistance of appellate counsel by failing to brief

this issue for appeal, or at very least, draw attention to this

issue in appellate counsel's ANDERS brief.

VIOLATION OF THE BRADY RULE /INVOLUNTARY GUILTY PLEA AND

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

To avoid unnecessary duplication, the Brady violation,

involuntary guilty plea and ineffective assistance of trial counsel

for failing to motion to withdraw Petitioner's guilty plea or file

a motion for new trial will be briefed together.
On Febuary 16, 2012, Petitioner entered an open plea of guilty

to the trial court to the third degree felony offense of possession

of child pornography. (RR.3,p.6). Petitioner was represented by

retained attorney Anthony Smith. (Smith)(CR-23). The trial court

heard a motion for continuance on punishment on May 31, 2012, that

was filed by Smith. (RR.4,p.l). During this hearing, the State

untimely presented Smith with discovery of some crime scene

photographs. (Photos)(RR.4,p.4-5). There were forty-seven (47)

crime scene photos handed to Smith at this time. (RR.4,p.8). These

photos depict, inter alia, the inside and outside of Petitioner's

residence and shed, photos which were later identified and admitted

into evidence as State's 2. (RR.5,p.16). The "shed" was later

described as a computer work-shop with various computers and

computer parts. (RR.5,p.15). The computer containing the child

pornography, suspect computer hereinafter, was custome built, (RR.5,

p.22), and contained three (3) seperate hard drives for storage.

(RR.5,p.31). The suspect computer was recovered from Petitioner's

work-shop. (RR.5,p.36). Two of the photos contained in State's 2,

are close-ups taken by law enforcement at the time the suspect

computer was seized. See EXHIBIT B. These photos show the left

and right side casings of the suspect computer have been removed.

This fact, in conjunction with testimony from Agent Baskerville

that the suspect computer was custome built, (RR.5,p.22), would

have supported a plausible defense that the suspect computer was

10
still in the process of being built and tested at the time of the

alleged offense during May 2008. Indeed, Petitioner is a computer

network engineer and computer technician. (RR.5,p.46).

Moving now to three additional photos, also contained in

State's 2, are photos of the suspect monitor taken by law

enforcement while the suspect computer was turned on and operating.

See EXHIBIT C. A close inspection of the display on the suspect

monitor in exhibit , reflects dates of April 28, 2003. These dates

represent the dates the user loaded the contraband into the hard

drives. This strongly supports a defense that the child pornography,

contraband hereinafter, was already present in the suspect hard

drive when the suspect computer was custom built in May 2008.

Seven (7) additional photos contained in State's 2, show a

mass array of used computer parts. See EXHIBIT D. Indeed, Agent

Baskerville confiscated numerous hard drives and computer storage

devices from Petitioner's workshop. (RR.5,p.30-31). A reasonable

summation of all the foregoing evidence adduced during punishment

would have supported an affirmative defense and trial strategy

that Petitioner, while using used computer parts, custom built

the suspect computer without knowledge that he was installing used

hard drives that contained contraband. Except, Petitioner was

denied this defense because the State withheld the exculpatory

photos until AFTER Petitioner pleaded guilty. The trial court

opined that if the photos were important enough for the State to

11
introduce them into evidence, that they were important enough to

give the defense discovery of the said photosv (RR.4,p.9). (EMPHASIS

ADDED). Even so, the State and the trial court still expresses thier

objections should Petitioner attempt to contest his guilt at the

time said photos were untimely disclosed by the State. (RR.4,p.lO).

The Due Process Clause of the Fourteenth Amendment requires

disclosure of favorable evidence even without a request. See KYLES

V. WHITLEY, 514 U.S. 419,433 (1995); BRADY V. MARYLAND, 373 U.S.

83 (1963) and EX PARTE MOWBRAY, 943 SW 2d 461,466 (Tex.Crim.App.

1996), a request that was made by defense counsel in the present

case. (CR-24). This mandatory disclosure of material evidence

applies in a bench trial on a guilty plea. See EX PARTE LEWIS, 587

SW 2d 697 (Tex.Crim.App.1979). Petitioner was entitled to PRE

TRIAL discovery of this evidence as a matter of law. The court of

appeals erroneously concluded that Petitioner failed to show that

the said photos were favorable to him. This is not Petitioner's

responsibility to meet this burden because the court of appeals

is not permitted to consider Petitioner's pro se response on the

merits. See STAFFORD V. STATE, 813 SW 2d 503,511 (Tex.Crim.App.

1991) quoting ANDERS, 386 U.S. at 744. The issue for the court

of appeals was to determine whether there were arguable bases for

appeal. Id. If so, then a skilled attorney would brief the issue

in an attempt to convince the court of appeals that the photos

12
were favorable to Petitioner. See IN RE SCHULMAN, 252 SW 3d at

409 (the appeal will be abated and remanded to the trial court

for appointment of counsel to file a merits brief). As stated in

ground one, this gives the effect of denying Petitioner's appeal

on the merits without counsel briefing the issue.

The court of appeals erroneously concluded further that the

State's withholding of the photos did not affect the voluntariness

of Petitioner's guilty plea as would provide an arguable bases for

appeal. The proper analysis in determining whether a guilty plea

was made voluntarily is "whether the plea represents a voluntary

and intelligent choice among the alternative courses of action

open to the defendant." See HILL V. LOCKHART, 474 U;S. 52, 56

(1985)(quoting NORTH CAROLINA V. ALFORD, 400 U.S. 25,31 (1970)).

As demonstrated, the record heretofore conclusively shows an

alternative course of action that was available to Petitioner

PRIOR to entering his guilty plea if only Petitioner would have

been aware that the State possessed the said crime scene photos

that would have supported a defense theory that Petitioner custom

built the suspect computer not knowing that it contained contraband,

Such a denial of due process before entry of a guilty plea cannot

be waived by that plea, but to the contrary, as a matter of law

renders the plea involuntary. See EX PARTE LEWIS, 587 SW 2d at 703.

Petitioner and his attorney could not make an intelligent decision

13
on whether to plead guilty when they had not received favorable

information that was in the State's file to which they were

entitled. Id. A fact that the court of appeals ignored when

placing emphasis on Petitioner's confession during the punishment

hearing. See MEMORANDUM OPINION pg. 2. As stated, the trial court

and the State had both already expressed their objections should

Petitioner attempt to contest his guilt at the time the said

photos were untimely disclosed to the defense. (RR.4,p.lO). This

left Petitioner with the only alternative trial strategy to plead

guilty, (RR.3,p.6), accept full responsibility for the contraband,

(RR.5,p.47), and request probation from the trial court. (RR.5,p.

59-61). A trial strategy that yielded Petitioner a nine (9) year

prison sentence. (RR.5,p.64). Accordingly, it cannot be said that

the outcome of these proceedings would have been the same if

Petitioner would have been provided PRE-TRIAL discovery of the

said photos. See BRADY, 373 U.S. 83 and WYATT V. STATE, 23 SW 3d

18,27 (Tex.Crim.App.2000)(setting standard which creates a

"reasonable probability" that the outcome of the proceedings

would have been different).

The inquiry into the withholding of the photos is not limited

to the BRADY claim and the voluntariness of Petitioner's guilty

plea. This issue further raises an ineffective assistance of

trial counsel claim because counsel should have filed amotion for

14
new trial or a motion to withdraw Petitioner's guilty plea at

the time that the said photos were untimely disclosed and counsel

himself stated that he believed that the photos were more

pertinent than just crime scene photos. (RR.4,p.l0). Indeed,

Petitioner had the right to the presumption of innocence and the

right to put the State to its burden of proof before a:criminal

conviction. See MILES V. STATE, 204 SW 3d 822,825 (Tex.Crim.App.

2006)(and cases cited therein). If trial counsel would have filed

a motion to withdraw Petitioner's guilty plea or a motion for new

trial, a hearing on either motion would have (1) entitled Petitioner

to a new trial holding the State to its burden of proof, or; (2)

made a record of the proceedings sufficient enough to preserve

this error for appellate review. Trial counsel's conduct fell

below an objectionable standard of reasonableness, and, but for

counsel's errors, the outcome of these proceedings would have

been different. See STRICKLAND V. WASHINGTON, 104 S.CT. 2052

(1984). And although the reviewing court generally reviews the

totality of counsel's representation, a single error may be the

focus of a claim of ineffective assistance of counsel as well.

See UNITED STATES V. CHRONIC, 104 S.CT. 2039,2045-46, n.20 (1984)

and see EX PARTE FELTON, 815 SW 2d 733,735-36 (Tex.Crim.App.1991)

(supreceded on other grounds).

15
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

FAILING TO.MOVE TO RECUSE JUDGE CARROLL

On May 31, 2012, the trial court heard Petitioner's motion

for continuance filed by defense counsel. (Smith) During the

hearing on said motion, the following exchange occurred:

THE COURT: '.'..I don't care about your little fusses over your

discovery. But I'm going to revoke his bond: and I'm going to put

him back in jail, and he can wait in jail until you get ready for

trial. 7:.I.'v done nothing except hear from Mr Mclntyre for the

last almost two years, and I'm just sick of dealing with him. And

he's going to go to court, and he's going to go to trial, and he's

going to get his trial over with, and I'm not going to wait for

him anymore. And, so, I'm going to put him in jail and revoke his

bond, and you can have two weeks or three weeks, or whatever you

want."

MR SMITH: Yes, sir.

THE COURT: Okay ? And he'll be waiting in jail while you get your

act together.

MR SMITH: Judge, I just want to be effective. I appreciate that.

THE COURT: Well, two weeks.

MR SMITH: That's fine, Your Honor.

THE COURT: Is that effective ?...So Mr Mclntyre, I'm going to raise

your bond. I'm not:.going..to set a bond.' :.I 'm:.goi.ng to hold you

16
without a bond... .

(RR.4,p.11-13). Petitioner asserts that these statements and

rulings by Judge Carroll demonstrate the judge's inability to

be impartial, (1) to the Petitioner and his counsel; (2) as to

the rules of evidence governing discovery, and: (3) Petitioner's

right to due process and due course of law. At this time, Smith

should have filed a motion to recuse Judge Carroll. See TEX. R.

CIV. PROC. RULE 18b (b)(1). These provisions governing recusal

apply to criminal cases. See ARNOLD V. STATE, 853 SW 2d 543,544

(Tex.Crim.App.1993). A motion to recuse on the grounds that the

judge's impartiality may be questioned would not have required a

showing of bias or partiality arising from an extrajudicial source

that is outside the judicial proceeding. See KNIATT V. STATE, 239

SW 3d 910,920 (Tex.App.-Waco 2007, on rehearing, 255 SW 3d 311,

pet.ref'd). Judge Carroll's statements also display bias and

prejudice to Petitioner and Smith. See TEX. R. CIV. PROC. RULE

18b (b)(2). This provision generally requires a showing that the

bias or prejudice stemmed from an extrajudicial source. See

SOMMERS V. CONCEPCION, 20 SW 3d 27,44 (Tex.App.-Houston [14th

Dist] 2000, pet.denied). However, Judge Carroll's remarks in the

present case show a deep-seated antagonism that makes fair

judgment impossible. Under these particulars, Petitioner would

not have been required to show that the bias or prejudice stemmed

from an extrajudicial source. See KNIATT, at 920. If Smith would

17
have filed a motion to recuse, Judge Carroll would have been

required to either grant the motion or refer the motion, so

another judge could determine the merits of the motion to recuse.

See MCLEOD V. HARRIS, 582 SW 2d 772,775 (Tex.1979). A hearing on

the motion to recuse would have, (1) further developed any grounds

for recusal, and; (2) preserved this error for appellate review.

Trial counsel's failure to file a motion to recuse Judge

Carroll.fell below an objectionable standard of reasonableness,

and but for counsel's error, the outcome of these proceedings

would have been different because Petitioner's punishment hearing

would have been before a different judge. See STRICKLAND, 104 S.CT.

2052 (1984). The court of appeals erroneously concluded that this

conduct by Judge Carroll only "expressed exasperation" with

Petitioner. See MEMORANDUM OPINION pg.2. By reaching this

conclusion the court of appeals has dismissed Petitioner's claim

on the merits of a pro se brief.

CONCLUSION

The above issue, as do the others, only require that there

be an "arguable bases for appeal." See BLEDSOE, 178 SW 3d at 824.

It appears that the court of appeals has lost sight of this fact

while issuing its memorandum opinion. The fact is that there are

thousands of memorandum opinions issued each years from appeals

that were briefed by skilled counsel. As is known to this Court

18
a memorandum opinion is based upon well established law. See

BLACK'S LAW DICTIONARY 9TH Ed. 2009. However, thousands of other

defendants are granted the opportunity to have these appeals

prepared and argued on the merits by skilled counsel. At the very

least, the foregoing should have been included in counsel's ANDERS

brief and explained as to why these issues are not meritoreous.

For this reason, this case should be remanded to the trial court

for appointment of new counsel for the purpose of filing a proper

ANDERS brief or to file a merits brief on these issues or any

other issues identified by this Court. See IN RE SCHULMAN, 252

SW 3d at 409, and ANDERS 386 U.S. at 744.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this

Court grant discretionary review.

Respectfully Submitted,

Ernest Benl Mclntyre

202 Avenue F, Apt.#2

Moody, Tx. 76557

(254) 853-9146

APPELLANT, PETITIONER PRO SE

'*£-

19
CERTIFICATE OF SERVICE

This is to certify that a true copy of the foregoing was

served on each party as indicated below on this 6th day of

January, 2015, via U.S. mail, postage pre-paid.

Bob Odom

Asst.Dist.Attorney

P.O. Box 540

Belton, Tx. 76513

State Prosecuting Attorney

P.O. Box 12405

Austin, Tx. 78711

Tim Copeland

Attorney at Law

930 S. Bell Blvd.,Ste.408

Cedar Park, Tx. 78613

Ernest Benl Mclntyre

20

*a£.
EXHIBIT A

MEMORANDUM OPINION

EXHIBIT A

EXHIBIT A
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00508-CR

Ernest Benl Mclntyre, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 66893, HONORABLE JOE CARROLL, JUDGE PRESIDING

MEMORANDUM OPINION

Ernest Benl Mclntyre pleaded guilty to possession of child pornography. See

Tex. Penal Code § 43.26. After a non-jurypunishmenthearing,the trial court assessed a sentence

ofnine years in prison.

Mclntyre's court-appointed appellate attorney has filed a motion to withdraw

supported by a briefconcluding that this appeal is frivolous and without merit. The briefmeets the

requirements of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional

evaluation of the recorddemonstrating whythereare no arguable grounds to be advanced. See id.;

seealsoPenson v. Ohio, 488U.S. 75,80 (1988); High v. State, 573S.W.2d 807,811-13 (Tex. Crim.

App. 1978). Mclntyre's counsel sent a copy ofthe brieftoMclntyre andadvised him ofhisright to

examine the appellate record and to file a pro se brief. SeeAnders, 386 U.S. at 744.

£Yj%Hi£/7' S?
Mclntyre has filed a pro se briefin which he raises four issues that he contends merit

furtherstudybynew appellatecounsel. Threeofthe complaintsrelate to photographsofa computer

on which pornographic imageswere found—photosthat Mclntyre contends are exculpatorybecause

they raise the possibility that he unwittingly acquired the illegal images when he bought used disk

drives to install as he built the computer. He argues (1) that the State violated the Brady rule by

withholding favorable evidence until after his guilty plea, (2) that the State's failure to produce

photos ofthe computer before his guilty plea rendered his plea unknowing and involuntary, and

(3) that his trial counselwas ineffectivefor failingto file a motioneither to withdrawhis guiltyplea

or new trial once these photos were revealed. His fourth claim is that his counsel was ineffective

in failing to file a motion to recuse the trial judge as biased because he expressed exasperation

with Mclntyre.

We conclude, based on the record before us, that Mclntyre has not shown meritorious

grounds that could be substantiated with new appellate counsel. He has not shown that new

counsel could present a meritorious argument that the photos are favorable to him. Further, at the

punishment phase—six weeks after seeing the photos of the computer and after the photos of

the computer were admitted into evidence—Mclntyre admitted his guilt, saying "I'm accepting

responsibility. I actually take full responsibility for this even though it was the cocaine that caused

this. But I do accept—I did this. I went to those sites. I clicked on those buttons and it was

on my computer." This is inconsistent with his claim in his pro se briefthat, had he known ofthe

photos of the computers sooner, he would have argued that the disk drives were loaded with

the illegal images before he bought them and without his knowledge. The record also does not
demonstrate a plausible argument that his counsel was ineffective for failing to file a motion to

withdraw his guilty plea, for a new trial, or to recuse the trial judge.

We have reviewed the record and find no reversible error. See Garner v. State,

300 S.W.3d 763, 766 (Tex. Crim. App. 2009). We agree with counsel that this appeal is frivolous,

affirm the judgment of conviction, and grant counsel's motion to withdraw.

Jeff Rose, Justice

Before ChiefJustice Jones, Justices Rose and Goodwin

Affirmed

Filed: June 4, 2014

Do Not Publish
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED JUNE 4,2014

NO. 03-12-00508-CR

Ernest Benl Mclntyre, Appellant

The State of Texas, Appellee

APPEAL FROM 27TH DISTRICT COURT OF BELL COUNTY

BEFORE CHIEF JUSTICE JONES, JUSTICES ROSE AND GOODWIN

AFFIRMED -- OPINION BY JUSTICE ROSE

This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs is

made.
EXHIBIT B

PHOTOS OF SUSPECT COMPUTER

EXHIBIT B

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ERNEST BENL MCINTYRE

202 Avenue F, Apt.#2

Moody, Tx. 76557

(254) 853-9146

Court of Criminal Appeals January 6, 2015

Abel Acosta, Clerk

P.O. Box 12308

Austin, Tx. 78711-2308

RE: MCINTYRE V. STATE, P.D.R. NO. PD-1486-14

Dear Clerk,

Enclosed please find Appellant's pro se petition for

discretionary review to be filed for record in the above

referenced cause and brought to the attention of the Court.

Thank you.

c. File

Sincerely,

Ernest Benl Mclntyr'e /

Appellant, Petitioner Pro Se

"33S

JAM-08 2015

Abe! Acosta, Clerk