CAUSE MO. 67,789-E

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RECEIVED IN

COURT OF CRIMINAL APPEAL

OCT 06 2915

ronm COUNTY, TEXAS

108th JUDICIAL DISTRICT

THE STATE DF TEXAS

V.

MICHAELBAY KENNEDY

Defendant.

(HURT OF APPEALS SEVENTH DISHtlCTof TEXAS.

Ararillo,Texas.

REQUEST FOR APPOINTMENT OF COUNSEL'

PURSUANT TO ARTICLE 38.35, CODE OF CRIMINAL PROCEDURE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendant MKBAEL EAY KENNEDY , T.D.C.D. NO.

1968578 , and requests appointment of counsel to assist Defendant in

obtaining an Order for Forensic Analysis from the Court, pursuant to Article

3B.35(b)(1)(2)(3), CODE OF CRIMINAL PROCEDURE .Sec . (a) (4)"forensic analysis,

means a ballistic or other expert examination or test preformad an physiral(EyiDENCE)

Defendant wishes to submit a Motion pursuant to Chapter 38 requesting

Forensic Analysis and Testing, and Texas Government Code §411.0205 and Defendant

is indigent. An Affidavit of Indigency is attached and incorporated hereto as

FILED IN EXHIBIT "1". ^im, riLLU m

COURT OF CRIMINAL APPEALS

OCT OC 2G^5

Abel Acosta, Clerk

Request for Appointment of Counsel

Pro Se, Self-Representing Litigant

m

Respectfully submitted,

Signature of Defendant Pro Se /

T.D.C.ZIJ 1968578

Stevenson Unit

1525 FM 766

Cuero, Texas 77954

(361) 275-2075
CAUSE NO. ^7. 7,1%-£

THE STATE OF TEXAS § IN THE DISTRICT OF

V. § POTTER COUNTY, TEXAS

MICHAEL RAY KENNEDY § 108th JUDICIAL' DISTRICT

ORDER REGARDING APPOINTMENT OF COUNSEL1

On this -•-• day of — r '--•'^•K , 2015, Defendant's Request for Appoint

ment of Counsel, together with Defendant's Declaration of Inability to Pay Cost,

was presented and heard by the Court.

IT IS ORDERED, ADJUDGED, AND DECREED that the request should be:

GRANTED DENIED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by the Court that

, is appointed to represent Defendant on this

Motion For Forensic Analysis of Physical Evidence in the above styled and

numbered cause .

SIGNED AND ENTERED on this the day of

in the year 2015.

Order Regarding Appointment of Counsel

Pro Se, Self-Representing Litigant ,.'/^\

JUDGE PRESIDING
EXHIBIT (1)

AFFIDAVIT OF INDIGENCY

Texas Rules of Civil Procedure,

Title 6, Chapter 132, Texas Civil

Practice and Remedies Code.

NOW RESPECTFULLY comes Michael Ray Kennedy ' , t.D.C. J.# 1968578

presently at the Clarence N. Stevenson Unit in Cuero (Deklitt County) Texas,

77954-6300. I declare that I am unable to pay the Court costs in this request

to the Court, and requests Leave of the Court to proceed - in forma pauperis -

in this accompanying request and action while showing the Court the following:

(1) I am presently incarcerated in the Texas Department of Criminal

Justice - Correctional Institution Division where I. am not

permitted to handle money; and

(2) I have no source of income or spousal income; and

(3) I currently have $30.00 dollars credited to me in

the T.D.C.J. Inmate Trust Fund; and

(4) During my incarceration in the Texas Department of Criminal

Justice - Correctional Institution Division, I have approx

imately $ 25.00 dollars per month as gifts from relatives

and friends; and

(5) I neither own nor have an interest in any realty, stocks, bonds

or bank accounts, and, I receive no interest or dividend income

from any source; and

(6) I have 0 dependants; and

(7) I have total debts of approximately $ dollars; and

(B) I owe $ 0 in restitution; and

(9) My monthly expenses in hygiene and medical expenses are

approximately $ 0 dollars.

IjMichael Ray kennady t T. D. C. J. # 1968578 r t

being presently incarcerated at the Stevenson Unit, located at 1525 FM 766,

Cuero, Texas, 77954-6300, (361) 275-2075, declare and verify under penalty of

perjury that the foregoing statements in this Affidavit of Indigence are true

and correct.

EXECUTED on this %£ day of Septaiber 2015.

Signature of Declararrc, Pro Se /

NOTE: Amendments to the Texas Civil Practice & Remedies Code §132.001, now allows any party to use

an Unsworn Declaration instead of an Affidavit or Verification (2012).

Affidavit of Indigence

Pro Se, Self-Reprenting Litigant
THE STATE OF TEXAS

Vs

Michael Ray Kennedy

Certified #.

CAUSE NUMBER 67,798-E

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In The 108th District Court

In and for; Potter County,Tx

And

Court of Appeals Seventh Dis

of Texas. Potter County,Tx

MOTION PURSUANT TO CHAPTER 38

REQUESTING FORENSIC ANALYSIS & TESTING

To The Honorable Judge of Said Court;

Comes Now Michael Ray Kennedy, Defendant Pro-Se and Respectfully

Moves this Honorable Court for a ruling on his Motion for Forensic Analysis And

Testing of Ballistic Evidence in the Above Styled and Numbered Cause,In Support

The Defendant will Show This Court as Follows:

I

Defendant is Submitting this Motion Pursuant to Article 38.35 Code of

Criminal Procedure: Rule 401 [Relevant Evidence]. Texas Rules of Evidence and

Texas Government Code § 411.0205 In the Interest of Justice and Fairness and

Not to Vex The Court.

II

That Such Admissible Evidence was Not Previously Tested ; Reporter Record

Vol.2 Page 158. See; RR. V.2 PG 158. Officer Michael wheeler Questioned By The

Attorney: Martinez in 4-5-6

Q Officer, Did You send that slug to Any Kind of LAB for Analysis ?

A NO, I Didn't.

RR V.2 PG 171 LN 1-2

Q And of Course You're Not An EXPERT in BALLISTICS, Are You ?

A NO, Sir

Attached are RR. V.2 PG 158-171. The Officer Testified to a Statement of the

Size of the Caliber of a Weapon and was Questioned of the Exhibits Number 6 of

Glass, This Slugg Allegedly was the Cause of the Window being Shattered. Exhibit

18 Is the bullet round collected from the seat,if this slugg shattered the window,

it would have glass fragments in the bullet. This Officer is NOT OULIFIED to Test

ify on Ballistics, by his Own Word's. RR. V.2 PG 171

Q You'r Not a Expert in Ballistics are you ?

A NO, SIR

Tex.R.Evid.702 Kelly V. State 824. S.W.2d 568(Tex.Crim.App.1992). This is The

Threshold Regaurding the Admission of Expert Testimony,Whether that testimony will

Help the Trier of fact Understand the Evidence or Determine a fact in Issue. And

If the Failure to Conduct previous testing is excused,means Individual samples of

Ballistic Material Having Discrete and Independent Probative Value for Purposes of

the particular issues arising from trial would not be allowed to clear the confusion

of the issue.
IE; An Expert is required or Texas Rule of Evidence 104(a)&(c) & Rule 702, Will

be forever Lost. None of the Criteria was Proven. There was No Gate Keeper

Hearing on Qualifications. Testimony was of a 380 Bullet and what if the Bullet

was a 22. Slugg or a 25 Bullet or a 44 or a 45 Bullet.

Further testing is so Advanced Now adays, A Expert Can [GIVE AN EXZACT TIME FRAME

THIS BULLET WAS FIRED],(Corrosion) Another Theory If The Bullet was Fired and

there was Moisture or rain on the window, The Bullet would have samples on the

Slugg. Let's Just say; The Incident Occured on a Hot and Sunny Day and a Expert

Shows this Slugg was Not Fired when the Officer or the State has CLAIMED, Then

it is a Miscarrige of Justice. Michael Ray Kennedy [Did Not Fire,No Weapon].

The Probative Force of Evidence Sought by Testing is Not so Weak that it Would

Raise only Surmise or Suspicion of Existence of Fact sought to be Established.

Defendant has made a reasonable Inquiry and Believes This Motion has Proper Basis

in fact, In law and is Not made for Improper Purpose.

Wherefore, All Considered, Defendant Prays that the Honorable

Court Grant Defendants Motion and Enters an Order for testing and

All Things which Defendant is Entitled.

RESPECTFULLY SUBMITTED ON THIS bW Day

of St$Twr[}dL ,2015.

Signature of Defendant,Pro^Se

MOTION FOR FORENSIC TESTING

Pro-Se Self Litigant Representing.

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MR. HORN: We'll pass the witness.

CROSS-EXAMINATION

BY MR. MARTINEZ:

. Q. Officer.did you send that slug to any kind of.

1ab for analysi s? *

A. No, I didn't.,

Q. So what's the significance of the slug in the

seat; when did that happen?'

A. It's -- Ms. Monnet told me that it -- her

window was damaged from the subject. And based on the

text message that she had received, I figured -- I

determined it to be a part of the investigation, a part

of the case.

Q. Well, did you check out the phone number?

A. No, sir, I didn't.

Q. Did you get a warrant to find out whose phone

number that was?

A. No, I didn't.

Q. Did you know about Ms. Monnet's prior criminal

hi story?

A. No.

Q. Did you know about her criminal history

afterwards?

A. No.

MR. MARTINEZ: Would you put State's
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to be glass outside. And, of course, you're not an

expert in ballistics, are you?

A. No, sir.

Q. Okay. But just from your training and

experience in investigation, is the glass being inside

the vehicle consistent with someone shooting through

that window into the car?

A. The glass inside the vehicle is a good

indication that the damage was done from the outside of

the car, inward.

Q. Okay. And just from your assessment of this

scene, is it your conclusion that the bullet came from

this window and not the front of the car?

A. Yes, it came -- my belief, it came from the

passenger's side front window.

Q. Okay.

MR. HORN: We'll pass the witness.

THE COURT: All right. Anything further,

Counsel ?

You may -- oh.

MR. MARTINEZ: Excuse me.

RECROSS-EXAMINATION

BY MR. MARTINEZ

Q. You didn't -- you di dn 't ^:-;-v. I .mean , as far as