/YS6VY

NO. PD-1486-14

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

ERNEST BENL MCINTYRE

Petitioner, Appellant

V.

THE STATE OF TEXAS

Appellee

MOTION FOR REHEARING

ORIGINAL

RECEIVED IN

COURT OF CRIMINAL APPEALS

APR 17 2015

Abel Acosta, Clerk

FILED IN

COURT OF CRIMINAL APPEALS

APR 17 2015

Abel Acosta, Clerk

ERNEST BENL MCINTYRE

202 Avenue F, Apt.#2

Moody, Tx. 76557

(254) 853-9146

PETITIONER, APPELLANT PRO SE
ERNEST BENL MCINTYRE

V.

THE STATE OF TEXAS

NO. PD-1486-14

§

§

§

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF THE COURT:

COMES now, Ernest Benl Mclntyre, Appellant, Movant pro se,

and files this Motion for Rehearing contending that said motion

is grounded only on substantial intervening circumstances which

requires this Court's supervisory authority to protect Movant's

right to appeal, and in support whould show:

1 - CASE HISTORY

Movant pleaded guilty to possession of child pornography. See

TEXAS PENAL CODE § 43.26. After a non-jury punishment hearing, the

trial court sentenced Movant to 9 years confinement. (RR.5,p.64).

Movant's court-appointed appellate attorney filed a motion to

withdraw supported by an ANDERS brief on December 4, 2012, concluding

that an appeal would be frivolous and without merit. SEE ANDERS V.

CALIFORNIA, 386 U.S. 738 (1967). Movant filed a pro se brief on

May 22, 2013, and a panel of the Third District Court of Appeals

consisting of Chief Justice Jones, Justices Rose and Goodwin, held

that there was no reversible error in the trial court's judgment

1.
of conviction and granted appellate counsel's motion to withdraw.

SEE MEMORANDUM OPINION, No. 03-12-00508-CR. Movant then filed a

motion for rehearing en banc on August 19, 2014, which was overruled

on October 10, 2014. A pe'tition for discretionary review was then

filed in this Court by Movant on January 16, 2015, which was refused

on February 25, 2015. This motion for rehearing follows.

2- - GROUNDS FOR REHEARING

In it's memorandum opinion, the court of appeals erroneously

concluded that the State's withholding of 47 crime scene photos

until AFTER Movant had pleaded guilty did not effect the voluntariness

of Movant's guilty plea, and that therefore, there were no arguable

grounds to be advanced on appeal. SEE MEMORANDUM OPINION pg. 2, No.

03-12-00508-CR, Third District. To support it's conclusion, the

court of appeals relied in part on Movant's confession that was

given during the hearing on punishment six weeks after seeing the

photos of the suspect computer and after the photos of the computer

were admitted into evidence; even placing emphasis on Movant's

confession in bold letters, and because Movant failed to show that

the photos were favorable to him. The court of appeals conclusion.,

on this point is misplaced. The relevant facts supporting rehearing

are set out as follows:

Movant established in his pro se appeal brief to the court of

appeals and in his pro se PDR to this Court that 47 crime scene

photos were withheld by the State until after Movant had pleaded

2.
guilty. (RR.4,p.4-5). Whether there are any arguable grounds for

appeal in this case would turn on the materiality of said photos

under BRADY. SEE BRADY V. MARYLAND, 373 U.S. 83 (1963). As discussed

in Movant's PDR pg. 10-12, the relevant photos show (l) the suspect

computer with both side casings removed in which it appears that

the computer was at the time in a state of assembly and testing,

and; (2) what Movant incorrectly argued was the suspect monitor

turned on and operating while displaying dates of April 28, 2003,

which Movant incorrectly believed to be the dates the contraband

was loaded into the suspect computer. A closer inspection, however,

reveals that these photos were MUCH more significant and MUCH more

material to Movant's guilty plea than previously argued.

In the appendix to this motion for rehearing, Movant has attached

copies of the relevant photos that were withheld by the State and

later admitted into evidence without objection and identified as

State's 2. (RR.5,p.l6). All except one of the atteched photos were

attached to Movant's pro se brief to the court of appeals; all of

which were a part of the record for the court of appeals' review

under ANDERS. To confirm for this Court that Movant is discussing

the correct computer containing the contraband, the inventory sheet

describes the suspect computer as Item #3, computer with covers

off, which was entered into evidence and identified as State's 5.

(RR.5,p.l7). The record further identifies the suspect computer as

custom built, (RR.5,p.22), and contained 3 harddrives, and only one

3.
of those harddrives contained contraband. (RR.5,p.31). In photos

numbered 1 & 2, the Court can see, inter alia, a computer monitor

with one computer sitting on each side. The suspect computer is

located on the left with a view of the right side casing removed

and two electrical cords draped over the top of the computer; one

thin cord and one thick cord. Photo number 3, shows a close-up of

the left side of the suspect computer with the left side casing

also removed, and one of the 3 harddrives hanging out the side, as

testimony revealed that this computer had three harddrives. (RR.5,

p.31). This photo, however, shows a much more important fact. Just

above the hanging harddrive, and a little to the right, looking

into the rear interior of the suspect computer, there are 4 empty

slots. These slots are supposed to have up to 4 interface cards in

them which the computer cannot operate without. Although the record

does not identify the parts that are missing from the computer,

this photo clearly shows said computer in a state of assembly and

that said computer was not even functional. Photo number 5, shows

the suspect computer while being pulled out by law enforcement

exposing a rear view of said computer. The small wire pluged in

to the rear is a mouse. The lager plug is for the monitor, and a

power cord can vaguely be seen at the bottom. The internet connect

is located between the mouse and monitor. Note that this computer

is not connected to the internet. Although the record does not

contain testimony identifying these connections, this photo shows

4.
the two componant cords draped over the top of the computer and

obviously not in use. To support this fact, photos numbered 3,5,

6,7,9|, & 10, all show the monitor turned on and operating. Obviously,

according to the photos discussed, whatever is being displayed on

the monitor is not coming from the suspect computer which contained

the contraband. Additionally, photo number 6, shows law enforcement

pulling out a server unit. The first plug that is closest to the

left on the rear of the server, is an internet connection. The

second is a mouse, and the third, which is a larger plug, is for a

computer. If the Court will look closely on the rear of the server

and on each side of the computer plug, you will see that there are

two additional places available in which to make additional computer

connections. These are Input/Output Connectors. Although there is

no testimony in the record identifying these connections, photo

number 6, clearly shows that there is only one main componant, (i.e.

computer), connected to the server.

Photos numbered 12,13,14,15,17,& 18, all show a mass array of

computer parts and an additional computer. Movant requests this

Court to take judicial notice of the photos in the appendix to this

motion for rehearing. The record further shows that a very large

number of computers, harddrives, and other computer storage devices

were seized as a result of a search warrant. SEE STATE'S 5, RETURN

INVENTORY & SEIZURE REPORT. Testimony described Movant's "shed" as

a computer workshop with various computers and computer parts. (RR.

5.
5,p.15). The suspect computer was recovered from Movant's work

shop. (RR.5,p.36). Testimony also established that Movant is a

computer network engineer and computer technician with a degree

in computer science. (RR.5,p.46). Movant argued to the court of

appeals and in his PDR that the relevant photos withheld by the

State and discussed in further detail heretofore, would have

supported an affirmative defense that Movant custom built the

suspect computer not knowing that he was installing contraband.

Movant had the right to the presumption of innocence and the right

to put the State to it's burden of proof before a criminal conviction,

SEE MILES V. STATE, 204 SW 3d 822,825 (Tex.Crim.App.2006)(and cases

cited therein). As previously discussed, the court of appeals

emphasised Movant's confession. SEE MEMORANDUM OPINION, pg.2.

However, in EX PARTE TULEY, this Court stated...

"The guilty plea process is not perfect. But guilty

pleas allow the parties to avoid the uncertainties of

litigation. The decision to plead guilty...,may be

influenced by factors that have nothing to do with the

defendant's guilt. The inability to disprove the State's

case, the inability to afford counsel, the inability to

afford bail, family obligations, the need to return to

work, and other considerations may influence a defendant's

choice to plead guilty or go to trial."

SEE EX PARTE TULEY, 109 SW 3d 388,393 (Tex.Crim.App.2002)(also see

footnote 2 for additional reasons a defendant may plead guilty).

In this case, the record is silent as to why Movant entered a

plea of guilty, although the record does show that defense counsel

did make a plea to the trial court for probation. (RR.5,p.59-61).

6.
But obviously, at some point, there was a discussion between

Movant and his attorney that resulted in a guilty plea. In anyother circumstances, it would be inappropriate for a reviewing

court to infringe upon counsel's actions which would otherwise be

considered sound trial strategy. SEE EX PARTE KUNKLE, 852 SW 2d

499,505 (Tex.Crim.App.1993). Now, however, the reviewing court is

doing exactly that. (EMPHASIS ADDED). It cannot be assumed by the

reviewing court that any advice to Movant by his attorney was not

affected by the State's withholding of said crime scene photos

when considering the totality of the evidence, which, obviously,

denied Movant a valid, not only plausible, but likely, affirmative

defense strategy.

In light of the new relevant facts as to the materiality of

the crime scene photos under BRADY, Movant requests this Court

to grant rehearing and consider these new points along with his

original PDR and pro se brief to the court of appeals. It should

be remembered that the focal point of these appellate proceedings

is to determine whether Movant is entitled to counsel on appeal

under ANDERS.

PRAYER

For the foregoing reasons, Movant prays this Court grant

rehearing.

Respectfully Submitted,
Ernest BenT Mclntyre a

202 Avenue F, Apt.#2 v

Moody, Tx. 76557

(254) 853-9146

APPELLANT, MOVANT PRO SE

8.
CERTIFICATE OF SERVICE

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

served on each party as indicated below on this &C*£ day of

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

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

APPELLATE COUNSEL FOR MOVANT

(WITHDRAWN)

Bob Odom

Crim.Dist.Attorney

P.O. Box 540

Belton, Tx. 76513

Ernest Benln Mclntyre Mclntyi s

Appellant, Movant pro se

CERTIFICATION

This is to certify that the foregoing Motion for rehearing

is grounded only on substantial intervening circumstances and is

made in good faith and not for the purpose of delay.

Ernest Benl Mclntyre

Appellant, Movant pro se
APPENDIX

APPENDIX

APPENDIX

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