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IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

~"AUSTIN, TEXAS

COURT OF APPEALS

FOUR|PE&gT"H JUDICIAL

HOUSTON,TEXAS

CAUSE #01-09-00193-CR

OR!

FILED IN

COURT OF CRIMINAL APPEALS

APR 17 2015

Abel Acosta, Clerk

GERALD ALAN HAYES/APPELLANT

VS.

STATE OF TEXAS, APPELLEE

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENTS REQUESTED

RECEIVED IN f^SSoFcmm. appeals

APR 16 2015

sta,
IDENTITY OF PARTIES AND COUNSEL

APPELLANT

DEFENSE COUNSEL AT TRIAL

STAND 9* COUNSEL

PROSECUTORS AT TRIAL

PRESIDING JUDGE

APPELLANT'S COUNSEL

U

GeraldAllen Hayes

TDCJ NUMBER 1578806

Mark W.Ellis Unit

1697 Farm to Market Road 980

Huntsville, Texas 77343

Appellantprose

Allen Isbell

202 Travis Street, Suite 208

Houston, Texas 77002

Alison Baimbridge

AssistantDistrictAttorney

HARRIS COUNTY DISTRICT

ATTORNEY'S OFFICE

1201 Franklin Street, 6th Floor

Houston, Texas 77002

The Honorable Mark Kent Ellis

351ST DISTRICT COURT

1201 Franklin Street, 14th Floor

Houston, Texas 77002

Franklin G. Bynum

AssistantPublicDefender

HARRIS COUNTY PUBLIC

DEFENDER'S OFFICE

1201 Franklin Street, 13th Floor

Houston, Texas 77002

APPELLANT pro gie—appointed
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

INDEX OF AUTHORITIES

STATEMENTS REGARDING ORAL ARGUMENT

STATEMENTS OF THE CASE

STATEMENTS OF PROCEDURAL HISTORY

STATEMENT OF THE QUESTIONS

ARGUMENTS

PRAYER FOR RELIEF

CERFIFICATE OF SERVICE

DECLARATION

APPENDIX

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INDEX OF AUTHORITIES

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STATEMENT REGRADING ORAL ARGUMENTS

This case is one of possible first impression and concerns

several relevant State and U.S. Constitutional issues based on

the riqhts of A prose defendant at trial and pro se Appelant

counsel once appointed by the Court of Appeal. The defendant/

Appellant/ pro se , has evidence within the record and personal

knowledqe as counsel durinq the (6) years that due process of law

and abuse of discretion by trial court and Court of AppealsFirst District has repeatedly occured in part due to his attempt

to defend himself and brinq the truth(withheld evidence) to li^ht*

Oral arguments would help clarify and corroborate the history

and evidence of this case that appointed counsel have refused to

do as an advocate for the client and justice. The opinion to

follow in this case if properly litigated before this court would

be a standard for the lower Courts to follow.

"3P
STATEMENT OF THE CASE,

A Harris county Grand Jury indicted Gerald Hayes July,22

2005 for Aggravated Robbery-Firearm( ), amended Aggravated

Robbery-Pellet Gun(CR:09) 1/18/2008 and reindicted Aggravated

robbery -Firearm (Oft.1*) 1/9/2009. May 17,17,2007, a Faretta hear

ing conducted granting Mr.Hayes request to represent himself at

trial, removinq Allen Isbell but appointing him standby.(4:RR36)

Jury selectedon February 20,2009 (9RR:14) and guilty verdict re-,

turnedof lesser included offense Robbery-Pellet Gun on Feb. 24,,

2009(11RR:127) The trial court granted Allen Isbell a continu

ance for punishment proceeding, April 15,2009 Judge Ellis made a

findinq of true on both enhancement paragraphs , both plead as

"not true" and sentenced to Life in prison. (13RR at 27-29)

Scott Ramsey, Appellant counsel, filed and conducted New TriAC

hearing March 20 2009(IVCR:637) denied on June 252009(MNT1RR:106)

and filed and argued Bill Of Exception at hearinq on Nov.5 2009.

Ramsey filed direct appellate brief on Dec.14 2010 prior to his

removal. Hayes elected to represent himself as appellate counsel

due to claims of incomplete record and a Faretta hearing was orde

and held August 4 2011 (1RR:15), COA granted order to proceed pos

se on Sept. 18 2011. Pro se hearing pursuant TEXR.APP. P 34.6^f">

held. •

Appellant Hayes, pro se, timelv filed direct appeal brief on

^pT, liJWland adopted Scott Ramsey's Briefing, COA ordered prose

counsel removed and struck filed brief on ^maJBv 2012., a3ainst the.

wished and objections— no hearings held—objections denied(COA D£n><

>

Motion to have new appointed counsel Franklin Bynum removed-denie^j
State Bar Grievance filed against Franklin Bynum at his request.

Bynum filed Ander's brief on April 9,2013 and Pro Se Response to

Ander's timely fied and supplement to Response

Court of Appeals affirmed Appellant conviction and Ander's brief

on OckX.'Z a^/freconsideration filed and denied.

Appellant now comes before this Court filing PDR pursuant

TEXR. APP.P 68.
I

STATEMENT OF PROCEDURAL ^iSTORY

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Questions Presented tor Review

i. \MheVHer -foe Court o£ Appeals erred [n concluding

the record was wholly -frivolous and NO arguable 'QrouncKexisl for Appeal, Tj£££fcfiiL<30co

a.\AJhetW4|ne standard and guideline in \Mhich -Phe CourtofAppeal used +o remove PROSE"APrWflE

CooHSEL and sVrike/ brief was procedurally wifhoul P/^cW and GDndrary4o^ sdanda rdWrth

to-toe OoviProeOfimina] Aypealsaod aS.ConsVi+ufional c\ue proems perVathiV>g -fo Appellate, SQ^reo^eMahbn.
Whether the Court of Appeals erred in concluding the record

was wholly frivolous and no arquable ground exist for appeal,

(slip op at 2-3)

ARGUMENT

As a threshold matter, Appellate counsel filed an Anders

brief on April 9,2013 alleqinq that pro se litiqant created a re

cord that completely devoid of any non-frivolous issues.(fenders 18)

claiminq only one issue raised by Allen Isbell.(11RR:107)

Appellant filed a pro se response,supplement and reconsidera

tion, all addressinq reversible errors pursuant T.R.AP. 44^2(^a^b^

and T.R.A.P. 33.1 (la, 2 a,b) on 4/9/2013,5/9/2013, 6/3/2013, with

factual and evidentiary challenged, record claims that should had

been permitted to be litiqated on direct appeal. Ex parte Garder

959S.W.189,198-200(TEXCRAPP1998) Response focused on same issues

previously brief and filed by attorney Scott Ramey Dec. 14,2010

and pro se brief Sept. 12,2012. (see: filed briefs)

The COA should had denied counsel's certification of meritlessness appeal since the record support several arquable claims.

Bynum's brief did not aduquately address the COA attention on the

arquable claims that were evident from the prior (2) briefinqs.

(See; Appendix) The appellant was deprived of constitutional

adequate representation on appeal by Court of Appeal's affirminq

of trial court judgment as prescribed in the Ander's brief,

counsel's Anders brief failed to satify the standard when it fail

ed to refer to ANYTHING IN THE RECORD THAT MIGHT ARUGABLEY SUPPOR

THE APPEAL. A_nders_ 386U .S .at 744 The seperate inauirv by COA

of the record was flawed when considering the appeal in the merit

the proceedinq is frivolous when it lacks an arquable basis eitheft
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in law or in fact. Johnson v. Lynauqh 796 S.W.2d 705,766 (1990)

The Appellate counsel and Court of Appeals erred in its failure

to determine that (2) suppression hearinqs —Hearing for Bill of

exception conducted by Mr Ramsev and Hearing for Motion for New

Trial , all within the record did.not constitute arquable and

preserved points of error. The Court overruling of pretrial

motion to suppress evidence preserve the error on appeal. Brown

v. State 183 S.W.3d 728,741 (TXAPPlst 2005) The pending issues

and objections addressed in these hearings were U.S. Constitution

violations such as suppression of illegal obtained evidence(SX4-8^

impermissible suqqestive ID procedures incourt/out of court that

are protected under Due Process of Law US v. Rodqers 126F3d 655

658 (5thcir), Brady violation and Discovery order violations by

ADA .airbridge. frriM^^Wn^MH,^^"ESP^

How could the Court of Appeal -afford a meaningful review of

the record if blant error and abuses of trial court litter to

record as follows:

estate admitted evidence (SX4-10), over defendant objection

this evidence was diouted and claimed to had been illegally ob

tained violatinq the search and seizure expection of privacy

right within the Fourth Amendment.._U.SCA. see-^Chadawick 433US at

15 97S.CT 247 (10RR:154,165,190-192) these items would become the

cornerstone of the States case and violate Brad^ and the discovery

order .(RR:MNT: 36 :3-9 ) (pretrial objection Feb 13 2009") CCOilO!)

(Defendant)' Ofay. Qnd thco+her thnj btwa nttf Jrfdau.Tp i&.k the thiei proSautoA has ntustd^oComply wMthco/'Swrtr/

Cind in On attempt -jo mt i}$itm5 to tMs/t/t the defense an<ktrmb

Sitf-rtpn'Saltation cti-fifieull andimpossible Si-/(/^/on>>*Hapftctrs ttit

D-A has trfldt cttlilerah decision not-to Comply t/ui-fh 4M ofotovcryoroltr dndalsc to Actmalic lootsty -fowro/s mt, andTCanp/ove e\/iJe/7 ce

ofMottSpec/fiectl// on (Mctmltr t/; ujtienXouas^, (Sitytffclz i$)
Sgt. Ryza confiscated search and a luqqaqe duffle baq without

warrant containinq personal items of defendant (SX :5-7 )<, claiminq

an incident to the arrest althouqh there was never probable cause

to search inside the luqqaqe without a warrant. The prosecutor

repeatedly offered the illeqally obtained clothing to match a

general discription of clothes worn by the suspect: ,f Does it

look like. ..((10RR:105:18-25,RR;104-106) Sq-t Ryza agreed the

clothinq were only similar but no proof of exactness(11RR:25-26)

and possession not unusal (10RR:202-203)

The State had waived the existence of these items seized durinq t

the suppression hearinq Dec.11 2008 (MOTION ILLEGALLY SEIZED EVID_.

CR:I/II213,CR:I/IV:391)

Court; Do ya all have any evidence seized for the defendan

that you intend to use at trial .

State: No. (RR:mosupp:4:23-25)

The Court of Appeals erred by not reviewing suppression pursuant

bifurcated standard of review. Carmouche v. State 105 S.W.3d 323

327 (TXCRIMAP 2000) The historical fact are in dispute or not

review in full violating TXC.C.P. 3&-__3 and not give a jury instr

uction TKa. Ani*Jbg^*> f^(Hk A^d^^Jot^^^ **<*

Impermissible sugqestiveness tainted incourt/out court ID

procedure during multiple occasion. Guzman v. State 955S.W.2d

85,89, (TXCRIMAPP,1997) I, + «=s lv.oi*S5*»^

These incident demonstrate by clear and convincinq evidence that

the trial identification was irreparbly tainted . Neil v.Bigger

409 US 188
tf The Motion for New Trial Hearing preserved the reversal 2I: r.

claim for Brady and discovery violations. Contrary to the COA

previos rulings and USCA. Walker v. State 321 S.W.3d 18 (TXAPP

Houslst2009)

Defense: from June2008 until you tookover this case until

(2) days before trial you have could have ascertain

ed the existence of this evidence, right , you

could have found out whether it was there and what

it was.

ADA: Sure if he asked me to.

Q: That's not my question, you yourself as prosecutor could

have?

A: s~ure:~yes " sir.

Q; you did not.

A: I did not. (RR:MNT:22:1-4)

ADA Baimbridqe was negliqent and unaware of actual evidence ob

tained by law enforcement(CR:213)

Defense: ...did you make any effort to contact him(Ryza)

about what evidence he had in his possession and

what evidence was in possession of the HPD.

ADA: Besides the evidence that I already had,., nno sir

(RRMN1T:19:7/12

Evidence willfully withheld should be excluded . Hoi 1owjll v.

State 571 S.W.2d 179,180 (TXCRIMAP, 1978)

• The appellate record prevail on a claim of ineffective

assistance of counsel by Allen Isbell as both trial and standby

counsel7. The record is developed by a preponderance of the evid

ence for both (2) prongs of Strickland v. Washinqton 466US 668,

686 (1984) The trial court caused inherent diffuculties and un

reasonable prejudice by the restraints on pro se counsel and

appointed standby counsel. The trial court ensured that defendant"

would be denied rights of assistance necessary to justify reliance,

on the outcome of the proceedinqs and a fundamental error of

such siqnificants that effects the verdict and subject to automattc8
reversal by the Court of Appeal. Mitchell 68S.W.3d 640,640 ;

(TXCRINAPP 2002) The Appellant contends the record is adequate

to address cliams of ineffectiveness. Scheanette v. State

144 S.W.3d 503,510 (TXCRIM AP 2004)

.# The Court of Appeal erred in it decision bv conflicting with

U.S. Constitutional due process rights and applicable ruling from

the Texas Court Of Criminal Appeals by rulinq the record wholly

frivolous and no arguable grounds although the trial court imposed

a unconstitutional "standby and wait" rule , so the pro se defend

ant was forbidden to consult with standby counsel at any time.

TC: StRpJdby and wait if you decide youwnat him to represent

you.(RRSUPPL:10:10-16)

Standby and wfljt until you come to your senses. (7RR:9)/

(RRSUPPL:11:1-5)Cfeb. 13 2009 pretrial h.1

The new trial hearing preserved the issue for appellat review:

Defense: And the Judge advised him-Mr. hayes--clearly that

that is he choose to represent himself he could not.

question or consult with Mr. Isbell, is that corret

ti

ADA: Almost everytime he was on the docket... You are not

entitled to speak with Mr. Isbell. .\RRMNT:50-51)

NOT ENTITLED: The Appellant argues that this denial to consult

orbe advised during critial stages of trial-guilt-innocence,

violates his rights under Art.I sec 9 Texas Const, and Tex.Code

Crim.P 1.051 (h) Faretta right$ are not infringed when standby

counsel assist in defendant "overcoming rountine procedural or

evidentiary obstacles, nor are thev infringed when counsel merely

helps to ensure the defendant compliance basis rules of courtroom

protocol. "Literally going to be sitting in the courtroom, standby-that's the concept...he does not represent you and has no lega^

obligation to the case.(6RR:7)

<\
9 The Court of Appeal erred in the application of law to facts

pertaining to theleqal sufficiency of the evidence applying the

Jackson Standard. Jackson v. Virginia 443U.S.307,319nl2 (1979)

The jury was not rationally justified in finding that Appellant

was guilty of the lesser-included robbery-pellet gun.

The Appellate Court should had found with some, objective

basis in the record, that the great weight and preponderence of

evidence contradicts the verdict of Robbery-Pellet gun. Watson., v.

State 204 S.W.3d 404,415 (TXCRIM APP 2006) Grotti v. State 273

S.W.3d 273,288 (2008) Here the State failed to prove beyowtfd a

reasonable doubt that appellant committed robbery by using or

exhibiting a pellet gun. If a pellet-gun was used in the course •

of so doing, preponderance of evidence would constitute Agg.

Robbery TEX.PEN.CD. 29.03 Complaiant, Allen Scroggins testifed

gun was in his waistband(10RR:109,113-114)althouqh it was never

seen in SX photos and never found,removed or pinted(10RR:127)

no verbal threats made. States closinq arqumentemphasised the

theory that a semiautomatic handqun was tucked in his waistband.

(HRR:120:18-23) but the theory is based on a "bulge"(11RR:121 :23

State: Do you have any prooff of that? The only proof

you have is that it was found in his —hotel room...

(ref. to pellet gun 11RR:124:14-17)

The due process attached to legal sufficiency requires that

the State provide proof beyound a reasonable doubt of every

element of the crime charqed. Since Robbery 29.02 PEN.CD involve

a two part analysis , the evidence fails to demonstrate that de

fendant "caused bodily injury,.?thfeatened +-"-or:-placed:another in

10
fear of IMMINENT FEAR bodily injury or death while in the course

of committing theft." there is reasonable doubt as to the element"

IMMINENT FEAROF BODILY INJURY OR DEATH certainly if the robbery

was executed with a pellet qunand a lack of any physical inter

action between victim and the defendant . Harper V State 675 SW2<i

534-5^6 (lH'ous app) Scroggins was never in imment fear but did

state "kind of in.shock"(19RR:10:116:7), "kind of like paused"

(10RR:109)

The evidence is leqal insufficient to prove all the elements

of Robbery -pellet qun because the facts and testimony of witness

prove the theft was with a note-"note dropping"

Scroggins: He had a letter in there(Fed-Ex envelop). I

didn't notice it at the time but it was a letter

demanding, I quess cash...(10RR:108:10-16)

The State expert witnesses deputed the gun allegation when veiwthe photos(SX:17-20), no weapon seen (RR10:36) and Oglesby stated

"I saw basically a man provide an envelope to a teller and then

recieve some money and the he left the premises.(10RR:71:1-8)

When all the facts of this case are considered, it is clear

that a findinq of qulity for Robbery-pellet gun is against the

great weight and prepondence of the credible evidence and this

issue should had been briefed bv Appellate counsel. Evidence did

not match theory alleged in indictment of lesser included offense

and motion to quash were filed and denied in pretrial—demanding

appropriate manner and means in which defendant caused immient

fear. Cruise.v. State 587S.W.2d 403 TXCRIMAPP1979 Sidney v. State.

560 S.W.2d 679 (TXCRIMAPP 1978) A unprepared Allen Isbell, stand

by counsel, incorporated a possible circustance in the criminal

espisode as a."hypothetical" in addition to proof that the defendII
ant was not at the Wells Fargo Bank at the time of the robbery,

but a registered guest at the Westin Hotel and made a phone call

at the time of the robbery.(1IRR:66-97) Clearly a disparity exist

between the charge and proof and the jury failed to reach a ration

al decision if it's centered on irrational and unreasonable evid

ence to support the element of a crimal offense.

Clearly the Court of Appeals erred in apply the correct stand

ard of review for sufficiency of ev/dence based on all the relevant

evidence within the record and it decision that the record is

wholly frivolous conflicts with other Court of Appeals and the

Jackson Standard_adhered to by this Court.T.R.A.P.66.3 £aX.c>

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