## — INTHECOURTOFCRIMINALAPPEALS •f) '-"jURTOFCRIMINALAR^HALP 

# -OFTEXAS .yu JUL102015 NO. PD.-0150-15 " _>? Aho|A„„.. ~, 

# j*% A&e»Acosta,Clerk

DANNYRAYRANCHER,Appellant ProSe FILEDIN 

## COURTOFCRIMINALAPPEALS

—V.

-THE STATE OF TEXAS 

### JUL 102015
AbelAcosta,Clerk

^PETITIONER'S MOTION FOR REINSTATEMENT OF STRICKEN PRO SE PETITION FOR DISCRETIONARY REVIEW PURSUANT TO TRAP.RULE 9.4(i)(2)(D);BECAUSE THE PRO SE PETITION IS NOT UNNECESSARILY LENGTHY ACTUALLY BEING TWO APPEALS AS CONSOLIDATED IN THE 9TH COURT OF APPEALS AND THE "PDR" PROCEDURE IS PART

OF THE DIRECT REVIEW PROCESS FOR EXHAUSTION PURPOSESS AS DETERMINED BY BY THE UNITED STATES SUPREME COURT AND IN THE INTEREST OF JUSTICE PRESENTS CLAIMS THAT STATE JUDGEMENTS OF CONVICTIONS AND SENTENCES WERE BARRED BY THE TEXAS AND UNITED STATES EX POST FACTO CLAUSES WHICH ARE PERMITTED TO PROCEED FOR FIRST TIME ON "PDR" CITING:IEPPERT V. STATE,908 SW.2d. 217 (TEX.CR.APP. 1995);

PHILLIPS V. STATE,NO.PD-1402-09 (TEX.CR.APP. 2011) AND SUCH AVENUE OF APPELLATTE REVIEW SHOULD BE KEPT FREE OF DISTINCTIONS TO IMPEDE OPEN AND EOUAL ACCESS TO COURTS

; EX POST FACTO CLAUSE VIOLATIONS IS A FEDERAL QUESTION THAT THE SUPREME COURT ALSO DETERMINES FOR ITSELF. USCA.CONST.ARTS.UlQ,CL.1;CARMELL V. TEXAS,120 S.CT. 1620 (2000)

TO THE HONORABLE JUDGES OF SAID COURT: NOW COMES,DANNY RAY RANCHER, Petitioner Pro se in the above-entitled and numbered cause seeking Petition for Discretionary Review. And pursuant to USCA. Const. Arts.l§9,C1.3, 1§10,C1.1; USCA.Cc.tfsl:. Amends. 1st,5th,14th; Tex. Const. 

### Arts.l§16,5§5/I§13(Open Courts);Tex.Code Crim.Proc. Art.44.02;TRAP.Rules 2,9.4(4)- (j),38.4,66.1,68.2,69.1,70.3,73.1; FRAP.32.7(A); S.CT. Rules 13.1, 33.2(b). And 

### files Motion for Reinstatement of Stricken Pro se Petition for Discretionary Review Pursuant to TRAP. Rule 9.4(i)(2)(D). Because the Pr so Petition is Not Unnecessarily lengthy being Actually Two Appeals Consolidated in the 9th Court of Appeals. And the "PDR" Procedure is Part of The Direct Review Process for Exhaust-

### ion Purposes as Determined by the United States Supreme Court, which Further in the Interest of Justice Presents claims in that the State Judgements of Convictions 

### Were Barred bythe Texas and United States Ex Post Facto Clauses That are Permitted toProceed for the First Time on "PDR" citing: IEPPERT V. STATE, 908 SW.2d. 217 (TEX. CR.APP. 1995); PHILLIPS V. STATE, NO. PD-1402-09 (TEX.CR.APP. 2011). AndSuch Avenue 

### of Appellate Review Should beKept free of Distinctions to Impede Open andEqual Access to Courts; Ex Post Facto Clause Violations is a Federal Question that the Supreme Court 

### Also Determines for Itself, in granting Petition for Writ of Certiorari,further citing CARMELL V. TEXAS, 120 S.CT. 1620 (2000). And. in further support thereof would respect fully show this Honorable Court as follows:

I. 

### On June 10,2015, this Court entered the following ORDER, On Appellant's Petition 

### for Discretionary Review from the 9th Court of Appeals Montgomery, PER CURIAM,Keasler and Hervey, JJ., dissenting: 

### "The petition for Discretionary Review violates Rule ofAppellate Procedure 9.4- (i)(2)(D) because the petition exceeds the proper length." "The Petition is struck. See Ru;e of Appellate Procedure 68.6. 

### "The petitioner may redraw the petition. The redrawn petition and copies must be filed inthe Court ofAppeals within Thirty days after the date of this Order." Filed: June 10,2015 

### DoNot Publish. [ALL JUDGE MADE LAWBYDELEGATION FROM LEGISLATURE] 

### TRAP. 9.4(d)(2)(D),provides.FORM, except for the record, a document filed with an appellate court must-unless the court accepts another form IN THE INTEREST OF JUSTICE—be the following form:(i) Length; (2) Maximum Length. (D). . . "A 

### Petition for Discretionary Review andResponse in the Criminal Court of Appeals, 

### 4,500 words if computer generated, and -15- pages if not." Cf. FRAP.Rule 32.7A)- 

### brief -30- pages; S.CT. Rule 33.2(b) -40- pages for Petition for Writ of Certiorari; TRAP.Rule 38.4, Length of Briefs no longer than -50- pages,exclusive of contents. TRAP.Rule 70.3, further provides:"BRIEF CONTENTS AND FORM;PROCEEDING IN THE COURT 

### OF CRIMINAL APPEALS." "Briefs must comply with the requirements of Rules 9 and 38. 

### TRAP. Rule 73.1(d) Form for 11.07 Application's Memorandum, provides: "The Memorandum 

### Shall complywith these rules and. shall not exceed 15,000 words if computer generated or -50- pages if not." 

### TRAP. 9.4(4) provides:EXTENSIONS." ACourt may,on motion permit adocument that exceeds 

### the prescribed limit." Then pursuant to 9.4(4)(j) the Clerk of this Court never returned anynonconforming "PDR" to this filing party after same were stricken. TEX.CODE CRIM.PROC. ART. 44.02, as Legislative enactment, Statutorily provides: "A DEF ENDANT IN ANY CRIMINAL ACTION HAS THE RIGHT TO APPEAL UNDER THE RULES HEREINAFTER PRE 

### SCRIBED." "Everyperson who takes an appeal from aconviction from a . . . district court over which the Court of Appeals has jurisdiction is legally entitled to have his cause reviewed." CHUM3LSY V. STATE, 132 SW,2d. 417 (CR.APP. 1939).

2."Legislature has power to make proper exceptions to right of appeal, and regulate appellate jurisdiction of Court of Criminal Appeals." See 

### DE SILVA V. STATE, 267 SW. 271 (CR.APP. 1924); "The right of appeal is a valauble right and should be denied only where express mandate of law so provides." YOUNG V. STATE, 172 SW.2d. 500 (CR.APP. 1943). 

### "Right to appeal incriminal case is statutory right and jurisdiction of 

### Criminal Appeals is subject to such exceptions and limitations as may be pre scribed by law." EXPARTE SPRING,. 585 SW.2d. 482 (CR.APP. 1978); "Every Indiv idual convicted of crime has statutory right to an appeal." JOHNSON V. STATE, 885 SW.2d. 541 (APP.10-DIST. 1994). "The right of a convicted defendant to appeal exists independent of statute 

### being given bythe Constitution; even if rules are not provided by legislation for 

### its execrcise,or impossible conditions are imposed upon its exercise,yet the right vail be sustained." See REPUBLIC OF TEXAS V. SMITH, DALLAM, 407; LATURNER V. STATE, 

### (1853) 9 TEX. 451. "It is not whether the appeal is precluded bylawmbut whether the appeal is authorized by law." ABBOTTV. STATE, 271 SW.3d. 694 (2008). "An agency cannot by rule do what Congress by statute precludes." MARSHALLV. GIB SON PRODUCTS,INC, OF PLANO, 584 F2d. 553 (5TH CIR. 1978). 

### TEX.CONST ART. 5§5(b) pertinent here provides: "THE APPEAL OF ALL CASES INWHICH THE DEATH PENALTY HAS BEEN•ASSESSED SHALL BE TO THE COURT OF CRIMINAL APPEALS. THE APPEAL OF ALL OTHER CRIMINAL CASES SHALL BE TO THE COURTS OF APPEALS AS PRESCRIBED BY LAW. "IN ADDITION,THE COURT OF CRIMINAL APPEALS MAY,ON ITS OWN MOTION,REVIEW THE DECISION OF A COURT OF APPEALS IN A CRIMINAL CASE AS PROVIDED BY LAW. "DISCRETIONARY REVIEW BY THE COURT OF CRIMINAL APPEALS IS NOT A MATTER OF RIGHT,BUT OF SOUND JUDICIAL DISCRETION." "IN COURT OF CRIMINAL APPEALS' DISCRETIONARY REVIEW CAPACITY,IT REVIEWS "DECISIONS" OF THE COURTS OF APPEALS.TEX.CONST. ART.5§5;TEX.CODE CRIM.PROC.ART.44.45;TRAP. RULE 66.3. See STRINGER V. STATE, 241 SW.3d. 52 (TEX.CR.APP. 2007), reh.,denied,on remand. 276 SW.3d. 95, "PDR" granted. "Following 1978 Amendments, Court of Criminal Appeals has jurisdiction to entertain applications for writs of common-law certiorari in appro priate cases. TEX. CONST. ART.5§5; TEX. CODE CRIM.PROC. ART. 4.04. EX PARTE BRAND, 822 SW.2d. 636 (TEX.CR.APP. 1992). TRAP. Rule 66.1 provides" Discretionary Review With or Without Petition." TRAP. Rule 68.1, provides: Discretionary Review With Petition." "EVEN THOUGH THERE IS NO RIGHT TO HAVE DISCRETIONARY REVIEW GRANTED BY THIS COURT,WE HAVE HELD THAT DUE TO THE VERY FACT THAT THE PROVISION EXISTS THERE IS A RIGHT TO MAKE A REQUEST TO THIS COURT."TRAP. RULE 66.2. See EX PARTE JARRETT, Id. 891 SW.2d. at 940 (TEX.CR.APP. 1995) TEX.GOV. CODE § 22.108(a), pertinent here provides: "RULES OF APPELLATE PROCEDURE IN CRIMINAL CASE." "The Court of Criminal Appeals is granted Rulemaking Power to promul

### gate Rules of posttrail, appellate, and Review Procedure inCriminal Cases EXCEPT THAT ITS RULES MAY NOT ABRIDGE,ENLARGE,ORMODIFY THE SUBSTANTIVE RIGHTS OF A LITIGANT." See also TANGUMAV. STATE, 47 SW.3d. 663 (APP. 13-DIST. 2001), reh.overruled, "PDR" ref'd.

II "THE UNITED STATES SUPREME COURT CAN REVIEW ONLY JUDGEMENTS OF A STATE COURT OF LAST RESORT OR A LOWER STATE COURT IF THE "STATE COURT OF LAST RESORT HAS DENIED DISCRETIONARY REVIEW." SUP.CT.RULE 13.1. See GONZALES V. THALER, 132 S.CT. 641 (2012). "IN ORDER TO SATISFY THE EXHAUSTION REQUIREMENT,ILLINOIS PRISONER WAS REQUIRED TO PRESENT HIS CLAIMS TO ILLINOIS SUPREME COURT BEFORE FILING PETITION FOR FEDERAL HAB EAS RELIEF,AVEN THOUGH REVIEW BY THE STATE SUPREME COURT "WAS DISCRETIONARY AND ONE3.FACTOR COURT WAS TO CONSIDER IN EXERCISING.ITS "DISCRETION" WAS GENERAL IMPORT ANCE OF QUESTION PRESENTED; "ALTHOUGH STATE PRISONER' DID NOT HAVE RIGHT TO REV- , IEW BY STATE SUPREME COURT, HE HAD RIGHT TO "RAISE" HIS CLAIMS BEFORE THAT COURT." See O'SULLIVAN V. BOERCKEL, 119 S.CT. 1728 (1999). "BECAUSE THE EXHAUSTION DOCTRINE FOR FEDERAL HABEAS RELIEF IS DESIGNED .TO GIVE THE STATE COURTS A FULL AND FAIR OPPORTUNITY TO RESOLVE FEDERAL CONSTITUTIONAL CLAIMS BEFORE THOSE CLAIMS ARE PRESENTED TO FEDERAL COURTS, STATE PRISONER MUST GIVE THE STATE COURTS ONE FULL OPPORTUNITY TO RESOLVE ANY CONSTITUTIONAL ISSUE BY INVOKING ONE COMPLETE ROUND OF THE STATE'S ESTABLISHEDAPPELLATE REVIEW PROCESS BEFORE FILING A: HABEAS PETITION.Id, O'SULLIVAN, supra. . "WE ACKNOWLEDGE THAT THE RULE WE ANNOUNCE TODAY—REQUIRING STATE PRISONERS TO FILE "PETITIONS FOR DISCRETIONARY REVIEW WHEN THAT'REVIEW IS PART OF THE ORDINARY. APPELLATE REVIEW PROCEDURE IN THE STATE"— HAS THE POTENTIAL TO INCREASE THE NUMBER OF FILINGS IN STATE SUPREME COURTS. WE ALSO RECOGNIZE THAT THIS INCREASED BURDEN MAY BE UNWELCOM IN SOME STATE COURTS BECAUSE THE COURTS DO NOT WISH TO HAVE THE OPPORTUN ITY TO REVIEW CONSTITUTIONAL CLAIMS BEFORE THOSE CLAIMS ARE PRESENTED TO A FEDERAL HABEAS COURT," Id, 0'SULLIVAN, supra.

. . . "THE EXHAUSTION DOCTRINE, IN OTHER WORDS, TURN ON AN INQUIRY INTO WHAT PRO CEDURES ARE AVAILABLE UNDER STATE LAW, IN SUM THERE IS NOTHING IN THE EXHAUSTIION DOC TRINE REQUIRING FEDERAL COURTS TO IGNORE A STATE LAW OR RULE PROVIDING THAT A GIVEN PROCEDURE IS NOT AVAILABLE. WE HOLD TODAY ONLY THAT THE CREATION OF A "DISCRETIONARY REVIEW SYSTEM DOES NOT,WITHOUT MORE, MAKE REVIEW IN THE ILLINOIS SUPREME COURT UNAVAIL ABLE." Id. 0'SULLIVAN, supra. SUP.CT. RULE 13.1, pertinent here to a completion of the "PDR" Review in the further interest of Justice to Reinstate the Stricken and Un-returned Pro se "PDR" claiming State and Federal Ex Post Facto Clause violations, provides:"REVIEW ON CERTIORARI; TIME FOR PETITIONING." "Unless otherewise provided by Law, a PETITION FOR WRIT OF CER
TIORARI TO REVIEW A JUDGEMENT IN ANY CASE,CIVIL OR CRIMINAL,ENTERED BY A STATE COURT OF LAST RESORT, . . . IS TIMELY WHEN IT IS FILED WITH THE CLERK OF THIS COURT WITHIN 90 DAYS AFTER ENTRY OF JUDGEMENT. A PETITION FOR WRIT OF CERTIORARI SEEKING REVIEW OF A JUDGEMENT OF A LOWER STATE COURT THAT IS SUBJECT TO "DISCRETIONARY REVIEW BY THE STATE COURT OF LAST RESORT" IS TIMELY WHEN IT IS FILED WITH THE CLERK WITHIN 90 DAYS AFTER THE ENTRY OF THE ORDER DENYING DISCRETIONARY REVIEW."
"THE UNITED STATES SUPREME COURT CAN REVIEW ONLY JUDGEMENTS OF A STATE COURT OF LAST RESORT "HAS DENIED DISCRETIONARY REVIEW." SUP.CT.RULE 13.1,. GONZALES V. THALER, 132 S.CT. 641 (2012). Cf. JIMINEZ V. OUARTERMAN, 129 S.CT. 681 (2000). 

# SUP.CT.RULE33.2(b), pertinentjhere, provides: "PAGELIMITSFORDOCUMENTSPRESENTED on 8^-by-ll INCH PAPER ARE: -40- PAGES FOR A PETITION FOR WRIT OF CERTIORARI." "IT IS THE PLAIN LANGUAGE OF § 2244(d)(1)(A) THAT PINPOINTS THE UNIFORM DAATE OF FINALITY SET BY CONGRESS. AND.THAT LANGUAGE POINTS TO THE CONCLUSION OF "DIRECT 

### APPELLATE PROCEEDINGS IN STATE iCOURT." THE STATUTE,THUS/CARRIES OUT THE GOAL OF THE (AEDPA OF 1995)OF PROMOTING "COMITY, FINALITY, AND FEDERALISM BY GIVING STATE COURTS 

### THE FIRST OPPORTUNITY^TO REVIEW THE CLAIM,AND TOCORRECT ANY CONSTITUTIONAL VIOLATION IN THE FIRST INSTANCE. THE STATUTE REQUIRES A FEDERAL COURT,PRESENTED WITH AN INDIVID-UAL'S FIRST PETITION FOR. HABEAS CORPUS RELIEF,TO MAKE USE OF THE DATE ON WHICH THE "ENTIRETY OF THE STATE DIRECT APPELLATE REVIEW PROCESS WAS COMPLETED." See JIMINEZ V. OUARTERMANy. 129 S:CT. 681 (2000). "THE EQUAL PROTECTION CLAUSE REQUIRES THAT ONCE A STATE ESTABLISHES AVENUES OF "APPELLATE REVIEW,THOSE AVENUES BE KEPT FREE OF UNREASONED DISTINCTIONS THAT CAN ONLY IMPEDE OPEN AND EQUAL ACCESS TO THE COURTS." See BLACKLEDGE V. PERRY, 94 S.CT. 2098 (1974). "PRISONERS,LIKE OTHER INDIVIDUALS,HAVE THE RIGHT TO PETITION THE GOVERNMENT ' FOR A REDRESS OF GRIEVANCES, WHICH INCLUDES ACCESS OF PRISONERS TO THE COURTS FOR THE PURPOSE OF PRESENTING THEIR COMPLAINTS." USCA.CONST.AMEND. 1. See also CRUZ V. BETO, 92 S.CT. 1079 (1972).

ON FEDERAL HABEAS REVIEW,STATE COURT DECISIONS ARE MEASURED AGAINST THE PRECEDENTS OF THE SUPREME COURT OF THE UNITED STATES AT THE TIME THE STATE COURTRENDERS ITS DECISION." Se:e CULLENV. PINHOLSTER, 131 S.CT. 1388 (2011). I III. GROUNDS FOR DISCRETIONARY REVIEW, TWO VIOLATIONS OF EX POST FACTO CLAUSES

NUMBER ONE: "THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TINA FULLEN TO TESTIFY AS AN OUTCRY WITNESS,. UNDER ARTICLE 3&.072, CURRENT VERSION OF THE STATUTE AS RESOLVED BY THE COURT OF APPEALS AND PROHIBITED BY EX'TOST

- FACTO LAW; NUMBER TWO: "THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING OFFICER ADAM KULAK TO TESTIFY AS AN OUTCRY WITNESS UNDER TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 38.072, CURRENTVERSION, OF THE STATUTE AS RESOLVED BY THE COURT OF APPEALS AS APPLIED^RETROSPECTIVELY TO OFFENSE COMMITTED IN 1996,EX POST FACTO." USCA.CONST. ART. 1§9,C1.3, provides: "NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED. USCA.CONST. ART. 1§10,Cl.l,provides: "NO STATE SHALL PASS ANY BILL OF ATTAINDER, EX POST FACTO LAW." TEX.CONST.ART. 1§16, provides: "NO BILL OF ATTAINDER,EX POST FACTO LAW, RETROACT IVE LAW, OR ANY LAW , . . . SHALL BE MADE. "Defendant was charged and convicted of aggravated sexual assault under imper 

### missible ExPost Facto Application of 1981 Amendment of VTCA., Penal Code, § 21.03 (repealed: SEE NOW, $ 22.021), proscribing offense of sexual assault where prosecut ion under Amended section required LESS OR DIFFERENT EVIDENCE from section in effect at time of offense, even if defendant's conduct would constitute aggravated rape under 

### either version." See LINDSEYV.jSTATE, 672 SW.2d. 892 (APP.5-DIST. 1984),"PDR",ref'd. "Term "female sexorgan" in 1985 Amendment toVTCA.,Penal Code § 22.011(a)(2)(A), defining sexual assault, was intended to include more than term "Vagina" used inprior version was "EX POST FACTO STATUTE" IN ITS APPLICATION TO ACT COMMITTED BEFORE EFFECT IVE DATE OF AMENDMENT." See AYLOR V. STATE, 727 SW.2d. 727 (APP.3-DIST.1987),"PDR" ref'd. "Retroactive application of 1993 Amendment to Statuterelating to evidence in sex offense prosecutions under which either Outcry by victimwithin one year or corroboration of victim's testimony is required, in order to support conviction only when victim is 18 years of age or older ALTERS RULES OF EVIDENCE TO REQUIRE LESS EVIDENCE TO SUSTAIN CONVICTION AND VIOLATES EX POST FACTO CLAUSE." See also BOWERS V. STATE, 914 SW'.2d. 213 (APP.8-DIST. 1995),reh.overruled,"PDR" ref'd.

5."Under Texas Law. statute providing circumstances under which sexual offense convictions may be supported by uncorroborated testimony of victim is treated as a sufficiency of the evidence rule, rather than as a rule con cerning the competency or admissibility of evidence, and trial court's failure, to comply with statute's requirements results not in remand for new trial, but reversal of conviction and remand for entry of order of acquittal.. TEX.CODE CRIM.PROC. ART. 38.07. See CARMELL V. TEXAS, 120 S.CT. 1620 (2000). "AMENDMENT TO TEXAS STATUTE AUTHORIZING CONVICTION OF CERTAIN SEXUAL.OFFENSES ON VICTIM'S TESTIMONY ALONE WAS LAW THAT ALTERED THE LEGAL RULES OF EVIDENCE AND REQUIRED LESS EVIDENCE TO OBTAIN CONVICTION, FOR PURPOSES OF EX POST FACTO CLAUSE, WHERE PREVIOUS STATUTE REQUIRED VICTIM'S TESTIMONY PLUS OTHER CORROBORATING EVIDENCE TO CONVICTv" USCA.CONST.ART.1§10,CI.1;TEX.CODE CRIM.PROC.ART.38.07 (1992). Id,, CARMELL, supra.
"AMENDMENT TO TEXAS STATUTE WHICH AUTHORIZED CONVICTION OF CERTAIN SEXUAL

- OFFENSES ON VICTIM'S TESTIMONY ALONE,WHERE PREVIOUS CORROBORATING EVIDENCE WAS REQUIRED, WAS NOT SIMPLY WITNESS COMPETENCY RULE, BUT WAS SUFFICIENCY OF THE EVIDENCE RULE,FOR PURPOSES OF ANALYZING RULE UNDER EX POST FACTO CLAUSE." Id, CARMELL, supra.
"WHETHER A STATE LAW IS PROPERLY CHARACTERIZED AS FALLING UNDER THE EX POST FACTO CLAUSE IS A FEDERAL QUESTION THAT THE SUPREME COURT DETERMINES FORhITSELF." USCA.CONST. ART. 1§10,C1.1, CARMELL, supra (citing: CALDER V. BULL, 3 DALL. 386, 390, 1 L.Ed. 648 (1798); WEAVER V. GRAHAM, 101 S.CT. 960 (1981); MILLER V. FLORIDA, 107 S.CT. 2446 (1987); BEAZELL V. OHIO,. 45 S.CT. 68 (1925)." Cf. "The requirement that the victim inform another person of an alleged offense does not apply if the victim is younger than -14- years of age at the time of the alleged offense. TEX. CODE CRIM.PROC. ART. 38.07 (Vernon 1983), We emphasize Three features of this law that are critical to petitioner's case. The First is the so call ed (OUTCRY OR CORROBORATION") requirement. Under that provision, a victim's testimony can support a conviction for the specified offenses only if (1) that testimony is 

### corroborated by other evidence, or (2) The victim informed another person of the offense within Six months of its occurence (AN OUTCRY). The SECOND feature is the "CHILD VICTIM" provision which is an exception to the "Outcry or Corroboration", requirement. "According to this provision, if the Victim was Under -14- years old at the time of the alleged offense, The "Outcry or Corroboration Requirement" does not apply and the victim's testimony alone can support a conviction-—even without any corroboarating evidence or outcry. The THIRD feature is that Art. 38.07 establishes a sufficiency of the evidence rule Respecting the Minimum Quantum of evidence necessary to sustain a con 

### viction.^If the Statutes' requirements are not met (for example, by introducing only the uncorroborated, testimony of a -15 year oldvictim whodid NOTMAKE ATIMELY OUTCRY),5 a Defendant Cannot be Convicted, and the Court must enter a judgement of Acquittal." See LEDAY V. STATE, 983 SW.2d. 725 (TEX.CR.APP. 1998); SCOGGAN V. STATE, 799 SW.2d.679 (TEX. CR. APP. 1990). Id. CARMELL, supra. 

### USCA.CONST.AMEND.V, pertinent here also provides: "NO PERSON SHALL BEDEPRIVED OF LIFE,LIBERTY,OR PROPERTY, WITHOUT DUE PROCESS OF LAW." 

### "THE FUNDAMENTAL REQUIREMENT OF DUE PROCESS IS "THE OPPORTUNITY TO BE HEARD." IT IS AN OPPORTUNITY WHICH MUST BE GRANTED AT A MEANINGFUL TIME. AND IN A MEANING FUL MANNER." See ARMSTRONG V. MANZO, 85 S.CT. 1187 (1965). 

### USCA.CONST. AMEND.14TH/ provides pertinent here:SECTION 1. "ALL PERSONS BORN, ... IN THE UNITED STATES,AND SUBJECT TO THE JURISDICTION THEREOF,ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE. "NO:STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED 

### STATES; "NOR SHALL ANY STATE DEPRIVE ANY PERSON OFLIFE,LIBERTY,OR PROPERTY,WITHOUT

o.DUE PROCESS, OFeLAW; "NOR DENY TO ANY PERSON WITHIN/ITS JURISDICTION THE '; . EQUAL PROTECTION OF THE LAWS." 

### USCA., CONST. ART. VI,CI.2, also pertinent here provides: [SUPREMACY CLAUSE],, "THIS CONSTITUTION,AND THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE INi' 

### PURSUANCE THEREOF, ... ORWHICH SHALL BE MADS UNDER THE AUTHORITY OF THE;i-••'•-;.-- .'^J};:'; UNITED STATES, SHALL BE THE SUPREME LAW OF THE LAND; AND THE JUDGES IN EVERY STATE SHALL BE BOUND THEREBY, ANYTHING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY NOTWITHSTANDING." "THE. ;EX .POST FACTO CLAUSE RAISES TO THE CONSTITUTIONAL LEVEL ONE OF THE MOST BASIC PRESUMPTIONS TO OUR LAW; LEGISLATION, ESPECIALLY.OF THE CRIMINAL SORT IS NOT TO BE APPLIED RETROACTIVELY." USCA.CONST. ART. 1§9,C1.3. JOHNSON V. UNITED- ' STATES, 120 S.CT. 1795 (2000). The records of this instant case on its face reflects that under the current .Amended version.of,Art.38.072, not in effect during the commission of the alleged Sexual Offenses committed on NOVEMBER 8,1996,then as a New Crime prosecuted as Continious Sexual Abuse of a Child well over 500 times until the Child victim left 

### home at age -18- years old. clearly altered the Rules of Evidence to Petitioner's Serious Disadvantage. Whereas the victim's Mother (TINA FULLEN) was the State's First 

### initial outcry witness when the child victim was 13years Old, and the previous ver sion of the Outcry Statute in effect in 1996, required that the Child victim's Out cry was to'had been made when thevictim was -12- years old oryounger. And,thus clearly not admissible under the"Retroactive application of the['Statute altering •%t ••••••: • •••• -'• ' "

. « _j;

. . .- 

### the rules of evidence byraising*'the Age of the Outcry requirement to -14-^years 

## or younger. Furthered likewise by the untimely outcry testimony introduced.'into evidence by-Police Officer, Adam Kulak under the Amended version of theStatute 

### (Art.38.072), applied retroactively to erroeneously permit a greater Untimely' Outcry when the alleged Child, victim was -28- years old. Clearly altering the rules of evidence and creating the New Crime of Continous Sexual Abuse of a Child, neither of which were in effect during the date the alleged Offenses
were committed on NOVEMBER 8,1996, against the alleged Childvictim,then -14- 

### years old or younger. Thereby stair-stepping even thedefense of the 10 year Statute of Limitations in effect in 1996, intending to circumvent the State and 

### Fedral ExPost Facto Clauses as prohibited byTEX.CONST.ART.1§16;USCA. CONST. ARTS. 1§9,C1.3,1§10 Cl.lf as well as to Deny Due Process and Equal Protection ' of USCA.CONST. AMENDS.5,14TH. Moreover the unobjected to testimony of the alleged 

### child victim's statements,that Petitioner had sexually abused her -500- times 

### before she left home at age -18- under the retroactive Statute permitted evidence 

### pursuant to the altered rules tohad obtained anUnconstitutional Judgement of Conviction and Imposition of Illegal Sentences.

## "OVERALLSTRUCTURE STRONGLYFAVOREDTHE "NEWCRIME" INTERPRETATION."Cf. CASTILLOV..UNITED STATES, 120 S.CT. 2090 (2000). 

## As this Courtnoted inGARCIAV. STATE, 125 SW.3d. 921 (TEX.CR.APP. 2004,"IF 

## WHENALL ISSAIDANDDONE, THECONVICTIONIS SURETHATTHE ERRORDIDNOT INFLUENCE THF "TTTRY" ORHAD BUTASLIGHT EFFECT, THE JUDGEMENT SHOULD STAND, ... BUT IFONE 

## CANNOTSAY WITHFAIRASSURANCE, AFTERPONDERINGALLTHATHAPPENEDWITHOUTSTRIPPING THE ERRONEOUSACTIONFROMTHEWHOLE,THATTHEJUDGEMENTWAS-NOTSUBSTANTIALLYSWAYED 

# bTtHEeKiTISIMPOSSIBLETOCONCLUDETHATSUBSTANTIALRIGHTSWERENOTAFFECTED." Id. at 927 n.9.(QuotingKOTTEAKOSV. UNITED STATES, 66 S.CT. 1239 (1946). 

## Cf MARTINEZV. STATE, 188 SW.3d. 291 (TEX.APP. 10DIST. 2006), onremand, whereby this Court of Criminal Appeals reversed, holding that the'Majoritywasmistaken in 

## its conclusionthatAdmittingHearsayTestimony (Complainant'sOutcry) brthe (Comp 

## lainant'sMother) wasadmissibleunderArticle 38.07. "InMARTINEZV. STATE, ITSSW-M. 

# 806 (TEX?Cr!aPP. 2005), remanded: "TODETERMINEWHETHER.THEADMISSIONOFTHEOUTCRY WAS HARMLESS ERROR." Id. 

## "Error inadmitting testtimonyof victim'smother, regardingwhat victimtoldher 

## aboutoffensewasHARMFUL inprosecutionforIndecencyWithaChild; "Absent improperly admitted evidence, onlydirect evidence supportingverdictwasvictim's testimony,tnere- 

# bymakinghercredibilityessential totheconviction.
. .And^dunngmother's testimony 

# trial judgeinstructedJuryabout itsroleas judgeofthecredibilityoftestimonyand its riqht to considerwhat victimtoldmother, and thus, therewas not Fairassurance that errordidnot have substantial and injurious effect or influence indetermining 

# jury'sverdict." TRAP. RULE44.2(b). Id. "BecauseA.R. WASOLDERTHAN12, THEOUTCRY TESTIMONY GIVEN BYA.R.'S MOTHER WAS NOT ADMISSIBLE." 

## "A.R.'S Motherwas thewitness immediatelypreceding A.R.'S Testimony. This testi 

# monywas introducedasbackgroundtestimonyandgavecontext toboththeOutcrytest 

# imonyaboutwhichMARTINEZComplains, ANDTHESUBSEQUENTTESTIMONYGIVENBYA.R.,WITH OUT 03JECTI0N." Id. 

## "THE STATUTE OF LIMITATIONS APPLICABLE TOACHARGE OFAGGRAVATED SEXUAL ASSAULT 

## WHERETHEVICTIMISYOUNGERTHAN-14- YEARSOFAGE ISTENYEARS." MOOREV. STATE, 4 SW ^d 269 (TEXAPP. 1999); "STATUTEOFLIMITATIONS FOR AGGRAVATED SEXUALASSAULT 

## OF*ACHILDCOMMITTEDAFTER 1987, WAS TENYEARS." TEX.CODE CRIM.PROC.ART.12.01; VTCA., PENAL CODE §22.011(a)(2)." FORDV. STATE, 908 SW.2d. 32 (TEX.APP. 1995). "STATUE OF LIMITATIONS ARE PRIMARYGUARANTEES USEDTOPROTECT CITIZENS FROMSTALE CRIMINAL CHARGED THAT IMPAIRTHOSE CITIZENS' ABILITIES TO DEFEND THEMSELVES." 

## "LIMITATIONS IS ANABSOLUTE BARTO PROSECUTIONOF ACRIMINAL CASE. STATE V. KRIZAN

## WILSON, 354 SW.3d. 808 (TEX.CR.APP. 2011); EXPARTE SMITH, 178 SW.3d. 797 (TEX. CR.APP. 2005). "CRIMEOF AGGRAVATED SEXUALASSAULT CARRIES TEN-YEARLIMITATIONS PERIOD.„ ZINGERV. STATE, 899 SW.2d. 423 (TEX.APP.1995). 

## "APPLYINGTHE NEW STATUTE INTHE CASE AT HANDWOULDUNFAIRLY (a) SUBJECT THE 

## ACCUSEDTOPROSECUTIONLONGAFTERTHE STATEHAD,INEFFECTGRANTEDAMNESTY; (b) TORETROACTIVELYWITHDRAWACOMPLETE DEFENSE TO PROSECUTIONAFTERTHE DEFENSE 

## HADALREADYATTACHED; AND (c) DO SO INAMANNERTHATWOULDALLOWTHE STATE TO 

## WITHDRAWTHIS DEFENSE ATWILL ANDWITHRESPECTTO INDIVIDUALS ALREADY IDENTIFIED. 

## USCA. ART. 1§10, Cl.l. See STOGNERV. CALIFORNIA, 123 S.CT. 2446 (2003)(citing CALDER V. BULL, supra). 

### "PORTIONOF LEGISLATION "VOID" WHICH SHOULD ENDEAVORTOREACH BY ITS RETROACTIVE 

## OPERATIONACTS BEFORE COMMITTED." JAEHNE V. NEWYORK, 9S.CT. 70 (1888); "BYSIMPLY 

## LABELINGALAWPROCEDURAL, ALEGISLATURE DOES NOT IMMUNIZE ITFROMSCUTINYUNDERART. 1§10,C1.1. BEAZELL V. OHIO, 46 S.CT. 68 (1925).IV. "EX POST FACTO CLAUSE PROHIBITIONS DO NOT MERELY CONFER'UPON THE PEOPLE A WAIVABLE OR FORFEITABLE RIGHT NOT TO HAVE THEIR CONDUCT PENALIZED RETROACT IVELY. INDEED,THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LEGISLATION IS NOT REALLY AN INDIVIDUAL RIGHT AT ALL. IT IS A CATEGORICAL PROHIBITION. SHORT OF A CONSTITUTIONAL AMENDMENT,THE PEOPLE CANNOT WAIVE THIS PROHIBITION,EITHER INDIVIDUALLY OR COLLECTIVELY,ANY MORE THAN THEY MAY CONSENT TO BE IMPRISONED FOR CONDUCT WHICH DOES NOT CONSTITUTE A CRIME."TEX.CONST.ART.1§16;USCA.CONST. ART. 

### 1§10,C1.1. IEPPERT V. STATE, 908 SW2d. 217 (TEX.CR.APP. 1995). "THE COURT REVERSED APPELLANT'S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT, FINDING THAT THE INDICTMENT CHARGED AN OFFENSE THAT WAS NOT IN EXISTENCE AT TIME OF THE ALLEGED CRIMINAL CONDUCT,AND THAT THIS EX POST FACTO VIOLATION WAS NOT WAIVED BY APPELLANT EVEN THOUGH HE DID NOT OBJECT AT TRIAL,AND AT THE FIRST LEVEL OF APPELLATE REVIEW,THE LOWER COURT OF APPEALS DID NOT REACH THE MERITS OF THE CLAIM,WHEN HOLDING INSTEAD THAT APPELLANT FORFEITED THE RIGHT TO COMPLAIN OF IT ON APPEAL." IEPPERT, supra. "3ECAUSE THIS IS A CONSTITUTIONAL ISSUE THAT WILL UNDOUBTEDELY RECUR GIVEN THE EVEN MORE RECENT' STATUTORY ELIMINATION OF THE STATUTE OF LIMITATIONS FOR SOME SEXUAL OFFENSES,WE GRANTED APPELLANT'S PETITION FOR DISCRETIONARY REVIEW. ALTHOUGH THE STATE PROSECUTING ATTORNEY AGREES THAT THE STATUTE OF LIMITATIONS HAD RUN BEFORE APPELLANT'S INDICTMENT,SHE ARGUES THAT APPELLANT FAILED TO PRE SERVE THIS ISSUE FOR. APPEAL BECAUSE HE DID NOT OBJECT IN THE TRIAL COURT." WE REVERSE THE COURT OF APPEALS,WHICH HELD THAT APPELLANT'S PROSECUTION WAS NOT 

### BARRED." USCA.CONST.ART. 1§10, Cl.l. See PHILLIPS V. STATE OF TEXAS, NO.PD-1402- 

### 09 (TEX.CR.APP. 2011),ONAPPELLANT'S PETITION FOR DISCRETIONARY REVIEW." (Citing STOGNER and IEPPERT, supras). 

### Petitioner pro se should, be given the Equal Protection of the laws alleging an ExPost Facto violation on Petition for Discretionary review, shown IEPPERT, 

### and PHILLIPS, supra. With the Court reinstating his stricken Pro se PDR, present 

### ing and. Arguing Two Constitutional Claims not presented in the trial or Lower Court of Appeals regarding the Retroactive Application of TEX.CODE CRIM.PROC.ART. 38.072, not inexistence at the time of the Sexual Abuse Offenses committed on November 8,1996. Which saidPro se PDR, should not be considered unnecessarily 

### lengthybecause actually its -28- pages contains Two Appeals as Consolidated also in the 9th Court of Appeals as NOS.09-13-00355-CR and 09-13-00356-CR. On Direct 

### Appeal fromTwo consolidated trials and. convictions for Aggravated Sexual Assault of a Child and Sexual Assault of a Child from the 221st District Court for Mont 

## gomeryCounty, Texas, inTRIAL CAUSE NOS. 12-01-00820 CR(COUNTS 1AND 2). With the Jury finding himguilty of both Counts and. Sentencing him to Life Imprison ment for Aggravated Sexual Assault and aFine of $10,000 on Count 1. Then also 

### finding him guilty of Sexual Assault of aChild and Sentencing him to Twenty Years Imprisonment on Count 2. Further if both cases were Briefed SEPARATELY Petitioner under the Judgemade TRAP Rule 9.4(i)(2)(D), would, be permitted an accumulated. -30- pages, being -15- pages for each separate PDR rather than
9.• ..... \«"-!^.\f

.-if:-

than the less lengthy -28- pages as contained in the currently stricken PDR sought to be reinstated and heard. Petitioner's -28- page Pro se PDR, was not prepared or drafted to vex, annoy or harass the Justices of this Highest Court of Last resort but* in 

### _the interest of justice for exhaustion and. acces to the Courts purposes,

in seeking TimelyPetition for Writ of Certiorari with the United States . Supreme Court, aftergiving this Court a fair opportunity to address and correct the Ex Post Facto Claims, pursaunt to S.CT.Rule 13.1; 28 USCA.§ 1257, and 28 USCA.§ 2101(a). In the event of Refusal or Denial of the Pro 

### Se PDR., sought to be Reinstated rather than proceeding on a State PostConviction Writ of Habeas Corpus. The United States Supreme Court has the power of Judicial Review in saying what the Law is. See MARBURY V. MADISON, 1 CRANCH 137 (1803). TRAP.RULE 69.1, pertinent here also provides: "GRANTING OR REFUSAL." "If Four 

### Judges do not vote togrant a PDR,the Court will enter a docket notation that the Petition is REFUSED. If Four Judges vote toGRANT a Petition, the Court will enter
a Docket notation that PETITION FOR DISCRETIONARY REVIEW'IS GRANTED."-Cf. also O'SULLIVAN and GONZALES, supras. Petitioner further invokes TTOyp^Ruie. 2,for Suspension of the -15- page limitation

li 

### as dictated byTRAP. Rule 9.^(i)(2)(D) inorder to expedite a decision on the TwoFederal^Ex Post Facto Claims presented.Snd argued with U.S. Supreme Court precedent in support of Granting the Pro se PDR, as sought to be reinstated as good cause shown. Petitioner further seeks consideration for Suspension of the -15- page limitations because the Court never ordered that the stricken Pro se PDR, be Returned. Whereas Two Copies of the 9th Court of Appeals' Memorandum Opinion also consisting of -15- pages were attached as APPENDICES 1. With further copy of same furnished and served on the State's Prosecuting Attorney. As to which Petitioner only retains a single copy of the MemorandumOpinion affirming his convictions and as a State prisoner has no access to free or purchased, photocopying services in TDCJ-ID. And he obtained the-Three additional copies of such Memorandum Opinion through having mailed same single copy to his brother, 

### Mr. Donald RayRancher inConroe,Texas, requesting that hemake the three copies thereof, thenmail all four back to this incarcerated Petitioner pro se. Which was done within the additional -60- day extension of time in which to had timely filed the Pro: se, PDR
as was granted by this Court. And during the interim, Petitioner.and his brother- have become estranged due to the nature of the offense and his association with the alleged child victim, as her Uncle believing Petitioner molested her as a child premised upon 

### the lower court of Appeals Opinion affirming both convictions. Moreover TDCJ-ID Policy 

## does not permit photocopying of Court records in Petitioner's possession which are 10

### not already on file with its Administrative Agency. Such as Inmate Administ rative Grievances and Inmate Medical Reords which are copied at .20* per page, 

### then onlyafter TDCJ-ID., is paid the cost of copying by Inmate Withdrawal of the charged amount fromhis Inmate Trust Account. And such further constitutes 

## aprolonged delayregarding the lengthy InmateWithdrawal usually taking 2-3- WEEKS. Therefore rendering it an almost impossibility to obtainmore copies of 

### the 9th Court of Appeals Memorandum Opinion Affirming the Trial Court's judegements and sentences as was attached to the stricken "PDR" as APPENDIX 1. IN BEAZELL V. OHIO, 45 S.CT. 68 (1925), "THE SUPREME COURT SUMMARIZED THE CHARACTERISTICS OF AN EX POST FACTO LAW: IT IS WELL SETTLED DECISION OF THIS 

## / COURT SOWELL KNOWNTHATTHEIRCITATIONMAYBEDISPENSEDWITH,THAT ANY STATUTE 

# / WHICHPUNISHESAS'VA!:CRIMEANYACTPREVIOUSLYCOMMITTEDWHICHWASINNOCENTWHEN '( DONE,WHICHMAKESMORE BURDENSOMETHE PUNISHMENTFORACRIME,AFTERITS COMMISSION, * ORWHICH DEPRIVES ONE CHARGED WITH CRTME OF &WY DEFENSE AVATT.ARTF APmRnTNGTO V TO LAW AT THETIME WHEN THE ACT WAS OOMMITTFn Tfi PROHTRTTF.P AS FY POST FACTO." "THE COURT FURTHER EXPLAINED THAT WITHIN THE CONCEPT OF EX POST FACTO IS THE FUNDAMENTAL PRINCIPLE,THAT "THE CRIMINAL QUALITYATTRIBUTABLE TO AN ACT,EITHER BY THE LEGALDEFINITION OF THE OFFENSE,OR BY THE NATURE OF THE AMOUNT OF PUNISH-



### .. MENT, , . . SHOULD NOT BEALTERED BYLEGISLATIVE ENACTMENT,AFTER THE FACT,TO THE
'DISADVANTAGE OF THEACCUSED." Id. at 269 U.S. at 170, 46 S.CT. at 68-69.

PRAYER 

### Wherefore.-BPremises considered Petitioner Pro seprays above all things that 

### his Motion for Reinstatement of Stricken Pro SePetition for Discretionary Review 

## be granted Forthwithbased upon the foregoing reasons and authorities and in the alternative ofdenial Order that the NON-Complying "PDR" be returned and extended 

### time in which to file a -15- page PDR be granted for an additional -30- days there 

### after on two separate briefs being that this Court does not consider the Two Counts 

## of Aggravated Sexual Assault of aChild and Sexual Assault as being consolidated for asingle trial and further not constituting the Same Causes onDirect Appeal or PDR 

## as part of the Appellate Review. Moreover this Court in the event of denial of Rein statement of the -28- page Pro.;.-se PDR., Order the TDCJ-ID., Hughes Unit Law Library Access to Courts supervisor, Ms. Brittany Hamilton to forthwith Copy the -15- page 

### 9th Court of Appeals Memorandum Opinion affirming the Trial Courts Convictions and. 

### Sentences as required to be thereto attached to any redrawn "PDR" as Appendix 1, 

## to provide meaningful access to COURTS Rights in citing BOUNDS V. SMITH, 97 S.CT. 1491 (1977). 

## Dated: 7/X//5 Respectfully submitted,

Rt. 2box mio Hughes Unit Gatesville, Texas 76597 -Petitioner Pro Se ll. 

## f**UNSWORN DECLARATION "I Danny Ray Rancher#18884198, being presently incarcerated in the A.Hughes Unit of the Texas Department of Criminal JUSTICE-Institutional Division located in Coryell County,Texas, declare under penalty of perjury that the foregoing is true and correct. 

# EXECUTEDON: 7/l/l5 fcWrUf(flfei.&UM-ft/*W Offender's-aignature & TDCJ-ID# 

### Pursuant to VTCA. CIVIL PRACTICE & REMEDIES CODE, §§ 132.001-132.003, et. seq. I declare verify or state that the foregoing is true and correct under penalty of perjury under the Laws of the United States of America.
EXECUTED ON: -1 —, t

— —»jj-y--.-fl. ^ —f^1^-*

———- — •• •-- Declarant 

# 7/1/[6 (foi^^fiWJ^frlff4ffl Signat(jte ;SJJTDCJ-ID# of Dec] Pursuant to 28 USCA. § 1746

CERTIFICATE OF SERVICE 

### I hereby the undersigned Appellant/Petitioner Pro se certify that a true and correct copy of the foregoing Motion for Reinstatement of Stricken Pro se PDR,. . . 

### has beenserved on theAttorney representing the State bydelivering same to TDCJ-ID., prison officials for mailing to: "STATE'S PROSECUTINGATTORNEY, P.O. BOX 12405,AUSTIN/ TEXAS 78711, First Class Mail, Postage prepaid in accord with the Prisonmailbox Rule 

### on this iSC day of 3Uty ,20IS

. Appelladt/Pefcitioner Pro se

12.