CAUSE MO. 67,789-E § § § 

## RECEIVEDIN COURTOFCRIMINALAPPEAL 

## OCT062915

ronm COUNTY, TEXAS 

### 108th JUDICIAL DISTRICT THE STATE DF TEXAS V. MICHAELBAYKENNEDY Defendant. (HURT OF APPEALSSEVENTHDISHtlCTofTEXAS. 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 MKBAELEAYKENNEDY , 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 expertexaminationortestpreformadanphysiral(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 

### FILEDIN 

## EXHIBIT "1". ^im, riLLUm COURTOFCRIMINALAPPEALS OCT OC2G^5 AbelAcosta, Clerk

Request forAppointment of Counsel Pro Se, Self-Representing Litigant 

### m Respectfully submitted, 

### SignatureofDefendantProSe / 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 ofPhysical Evidence in the above styled and numbered cause . 

### SIGNED AND ENTERED on this the day of in the year 2015.

Order Regarding Appointment ofCounsel 

### ProSe, Self-RepresentingLitigant ,.'/^\ JUDGE PRESIDING

### EXHIBIT(1)

AFFIDAVIT OF INDIGENCY Texas Rules of Civil Procedure, Title 6, Chapter 132, Texas Civil Practice and Remedies Code.


### NOW RESPECTFULLYcomes MichaelRayKennedy' , 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) Ihave 0 dependants; and (7) I have total debts of approximately $ dollars; and 

### (B) Iowe $ 0 in restitution; and (9) My monthly expenses in hygiene and medical expenses are 

### approximately $ 0 dollars. IjMichaelRaykennady 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. SignatureofDeclararrc, Pro Se / NOTE: Amendments to the Texas Civil Practice & Remedies Code §132.001, now allows anyparty to use anUnsworn Declaration instead ofan Affidavit orVerification (2012).

Affidavit ofIndigence Pro Se, Self-Reprenting LitigantTHE STATE OF TEXAS Vs 

### Michael Ray Kennedy Certified #. CAUSE NUMBER 67,798-E § § § § In The 108th District Court 

### In and for; Potter County,Tx And Court ofAppeals 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 onhis Motion for Forensic Analysis And 

### Testing of Ballistic Evidence in the Above Styled andNumbered 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 PG158. Officer Michael wheeler Questioned ByThe Attorney: Martinez in4-5-6 Q Officer, Did You send that slug to AnyKind of LAB for Analysis ? 

### A NO, IDidn'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 roundcollected from the seat,if this slugg shattered thewindow, itwouldhave glass fragments in the bullet. This Officer is NOTOULIFIED to Test ify on Ballistics, byhis 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 KellyV. State 824. S.W.2d 568(Tex.Crim.App.1992). This is The Threshold Regaurding the Admission of Expert Testimony,Whether that testimonywill 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 wouldnot be allowed to clear the confusion of the issue.

### IE; An Expert is required orTexas Rule of Evidence 104(a)&(c) & Rule 702, Will be forever Lost. None of the CriteriawasProven. There wasNo 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, AExpert Can [GIVEANEXZACTTIMEFRAME 

### THISBULLETWASFIRED],(Corrosion) Another TheoryIfTheBulletwas Fired and there was Moisture or rain on thewindow, The Bullet would have samples on the 

### Slugg. Let's Just say; TheIncident Occured on a HotandSunny Day and a Expert Shows this Slugg was NotFiredwhen the Officer or the Statehas CLAIMED, Then it is a Miscarrige ofJustice. Michael Ray Kennedy [Did NotFire,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 ProperBasis 

### infact, In law and is Not madefor 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 THISbWDay ofSt$Twr[}dL ,2015.

Signature of Defendant,Pro^Se

MOTION FOR FORENSIC TESTING Pro-Se Self Litigant Representing.

page 21 2 3 4. ?5

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e1;5Sw 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 analysis? * 

### 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's1 2 3 4 5 6 7 8 9 10 11 12 13 14 

### _15

16 17 18 19 20 21 22 23 24 25 171


### 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 didn 't^:-;-v. I .mean , as far as