EX PARTE

GARY DON BEASON

JQ tt?- 03

IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS

iVIOTIGW DISMISSED

BY: UT^ IN CAUSE NO. CR21120-A

§ ON APPEAL FROM THE 35TH

§ JUDICIAL DISTRICT COURT

§ OF BROWN COUNTY, TEXAS

MOTION TO REBUT STATES RESPONSE

COMES NOW, GARY DON BEASON/ Appellant in the foregoing

cause and would show this Honorable Court the following in

response to the State's letter opposing Appellant's habeas action/

file dated October 27th/ 2014; of which/ Appellant received

his copy on January 21st; 2015.

First/ Art. 11.07(7) requires the State to notify Appel

lant's Attorney/ or Appellant in a Pro se filing/ when he

responds to the habeas action.

Appellant was not in reciept of the State's letter in re

sponse, and filed a motion requesting the Court to instruct

the State's Attorney to return service upon Appellant. The

Court clerk forwarded a copy of the State's letter with her

notice of the District Court's forwarding of habeas action

to the Court of Criminal Appeals.

I mention this merely to show why the Appellant response

is late.

i.

RECEIVED IN

COURT OF CRIMINAL APPEALS

FEB 02 201§
Appellant did file an affidavit in support of his habeas

application upon recieving an order from the Court inviting

him to do so; however/ he could not respond to the State's

brief letter as he was not served until now.

The State's Attorney alleges Appellant has forfeited his

right to raise this claim on collateral appeal as the trial

court heard his motion to dismiss/ and denied it. And his

Appellate Attorney did not raise the issue on direct Appeal.

Quoting Ex Parte Clore, 690 S.W.2d 899, 900(Tex.Crim.App.1985).

This is exactly why Appellant's second ground alleges

ineffective assistance on Appeal.

The State further adds that jurisdiction is not contingent

on whether indictment has a defect of form or substance. Quoting

Teal v. State, 230 S.W.3d 172/ 177(Tex.Crim.App.2007).

Both points can be clearly argued by using the standard

set forth in Aguilar v. State, 846 S-W.2d 318 (Tex.Crim.App.

1993). This Court clearly established that Texas Constitution

Art. 5 § 12(b)/ authorizes jurisdiction in indictments. Any

challenges must be made prior to trial via motion to dismiss/

or quash. See also Ann. Art. 1.14(b) Tex.Code of Crim.Proc:

or, the right to challenge is waived.

Once that jurisdiction is challenged/ via motion to quash/

prior to trial on the merits/ if the defendant does not prevail

in his challenge/ it becomes first requirement on direct Appeal.

The Court also held in Aguilar, supra, an indictment lacking

fundamental requirements effect jurisdiction/ and jurisdictional

issues can be brought up anytime.

2.
The Court defined fundamental requirements as:

1) fewer than number of grand jurors voted on true bill.

(According to minutes of the grand jury).

2) failure of the actual foreman of the grand jury to deliver

the bill to the Court Clerk.

3) forgery of the foreman's signature.

4) inadvertant signing and returning of a bill in a case not

reviewed by grand jury.

Appellant asserts that in any case the Court clerk may

not certify document. And without the statutory required certi

fication set forth in Art- 25.01 T-CCP. the indictment is

not legal sufficiency of notice.

As appellant stated in his motion to dismiss/ the document

could have been produced on any computer and defendant has no

idea of the true nature of the indictment on record accusing

him.

Therefore without due process of law, that is guaranteed

by the 14th Amendment of the United States Constitution/ and

backed up by the legislative statute of Texas, and previous

Court of Criminal Appeals decisions/ an indictment that is not

certified by the Court Clerk is insufficient notice. And without

sufficient notice of charges one cannot prepare a defense/ there

fore jurisdiction is voided.

This Court has held that when interpreting legislative

intent and/or purpose/ we necessarily focus our attention on

the literal text of the statute in question. Yet a third reason

for focusing on the literal text is that the legislature is
constitutionally entitled to expect that the judiciary will

faithfully follow the specific text that was adopted. Boykin v.

State/ 818 S.W.2d 782 (Tex.Crim.App.1991).

This court held in Campbell v. State/ 49 S.W-3d 874 (2001)/

where the statute is clear and unambiguous the legislature must

be understood to mean what it has expressed/ and it is not for

the Courts to add or subtract from it. See also Coit v. State,

808 S.W.2d 473 9Tex.Crim.App.1991) quoting Ex Parte Davis/ 412

S.W.2d 46 (Tex.Crim.App.1967).

Therefore Appellant would ask this Honorable Court: Can

the District Courts interpret legislative intent and purpose,

and disregard Art. 25.01 of Tex.Code of Crim.Proc? Also does

Court Clerk certification rule meet ambiguous/ and instructive

guidelines/ or is it. mandatory?

Appellant's claim that the court lacked jurisdiction is

not merely premised on -a defective indictment; but rather/

insufficiency of legal/ statutorily required notice of charges,

which call into question the jurisdiction of the Court to hear

the case.

Art. 27.03 V.A.C.C.P. at (28) shows this Court ruling as

far back as 1910 in Johnson v. State, 60 Tex.Cri. 305, 131

S.W. 1085(1910), that the presentment of indictment against

accused had not been entered on the minutes of the Court and

that certified copy had not been served on the accused/ while

a ground for postponing the trial/ was no ground to quash the

indictment.

4.
Also/ when a defendant petitions for sufficient notice

of the State's charge by motion to quash/ adequately setting

out the manner in which notice is deficient. The presumption

of innocence coupled with the right to notice requires that

he be given such notice. Drumm v. State/ 560 S.W.2d 944(Tex.

Crim.App.1977).

Also, Constitutional right to adequate notice of charges

against an accused from face of indictment is substantial right

invoked by filing motion to quash for insufficient notice.

Jeffers v. State/ 646 S.W.2d 185 (Tex.Crim.App.1981).

At hearing on applicant's motion to dismiss/ the State's

Attorney said: "If it's a matter of notice Mr. Beason has not

shown any variance in his copy/ and the State's copy." (R-R.

Vol. 5/ P.. 23).

Then/ when applicant submitted his copy of indictment into

evidence the State's Attorney said to the Court that there was

a variance and that the State's copy of indictment had been

amended. (R.R. Vol.5/ P.22/ Ins. 11-20).

The Couct then stated that a hearing was held, with defen

dant present/ to amend the indictment. (Paraphrased) (R.R.

Vol.5, P.23)-

The record will not support parties ever being present

at hearing. The first applicant ever knew of an amendment was

August 8th, 2011 at pretrial hearing where he waived his right

to counsel. (R.R. Vol.4, P.10).

5.
Court Clerk's supplemental record does reflect that the

A 7

State filed motion to Amend on •February 1st, 2011. Court ordered

Amendment on JPcDrecary 7th/ 2011. The order says, "after notice

••to defendant .-- Q^ £*k;Wf+s A *->0<

Defendant was never notified by Court/ or Counsel, of an

amendment to the indictment.

In applicant's original motion to dismiss he states at

paragraph five: "defendant therefore claims he was not served

in the manner prescribed by law and he has no idea the true

nature of the indictment on record accusing him."

Applicant is not an attorney and has no legal training

therefore he cannot be required to express with specific word

ing and phrases necessary to facilitate the Court's legal re

sponsibility toward him.

The Brown County jail provides no law library so legal

research was not an option ...point being, applicant's motion

to dismiss stated: he was not served in the manner prescribed

by law; which, is the same as saying he was not given legal

sufficiency of notice.

Applicant's ground one, at facts supporting/ clearly states

he was not given notice of charges as prescribed by legislature,

challenging jurisdiction.

6.
PRAYER FOR RELIEF

Therefore Applicant prays this Court recognizes prima facia

evidence in that he was denied his 14th Amendment right to

Due Process of law, and his 6th Amendment right to a fair trial

guaranteed by the United States Constitution.

Respectfully submitted.

_lhyf-po*\ 7£>ju*^&^ GARY DON BEASON

TDCJ # 1743056

McCONNELL UNIT

3001 S. EMILY DR.

BEEVILLE, TEXAS 78102

UNSWORN DECLARATION

I, GARY DON BEASON/ Applicant in the foregoing motion

do hereby declare under penalty of perjury that the foregoing

is true and correct to the best of my knowledge.

7.

/3jusU*P^

GARY DON BEASON

DATED ON: ^/^-C 6? ~~ ' ^
CERTIFICATE OF SERVICE

I, GARY DON BEASON/ the undersigned do hereby certify that

a true and correct copy of the foregoing motion to rebut State's

response has been sent to the Brown County District Attorney's

office at 200 S. Broadway suite 326/ Brownwood, Texas 76801,

by U.S. mail, on the £&7t\ day of ^JoJ^iAdn^y > 2015.

8.

A*/y/&n Bjl0^0^ GARY DON BEASON

TDCJ# 1743056

MCCONNELL UNIT

3001 S- EMILY DR.

BEEVILLE, TEXAS 78102
stppJL//aS&'$ £?<L JNo. CR21120

THE STATE OF TEXAS §

v- §

Gary Don Beason §

IN THE DISTRICT COURT

35th JUDICIAL DISTRICT

BROWN COUNTY, TEXAS

Motion ToStrike Language From Indictment

Now Comes the State ofTexas by and through her District Attorney for the 35th

Judicial District ofTexas, and files this Motion to Strike Language from Indictment in the

above-referenced cause and in connection therewith would respectfully show unto the

court the following, to-wit:

I.

The relevant portion of the indictment states "Livy Funderburg, a child younger

than 18 years of age, was present on the premises where the offense was committed,

being the identical person named in the information". The State requests the following

language be stricken: "being the identical person named in the information"

WHEREFORE, the State requests that said indictment be stricken accordingly.

FILED

At 340 O'clock p

APR 01 2011

ClerlcTJistrict Court Brown Co. TX

*y /\trD~eputy

M

Micfleal

DJCTrictAtWrney

StateBXNo. 0092955

'Brown CounwCourthouse

BrownwoodfTexas 76801

325/646-0444

Certificate ofService

The undersigned certifies that a true and correct copy ofthe foregoing Motion was

delivered via Facsimile to the office ofJudson Woodley, Attorney at Law, 325-356-5193,

on the I**- day ofMarch. 2011.

—^ ApfcJ

41
THE STATE OF TEXAS

v.

Gary Don Beason

A

No. CR21120

\ IN THE DISTRICT COURT

i 35th JUDICIAL DISTRICT

i BROWN COUNTY, TEXAS

Order Approving and DirectingThe Striking

ofLanguage from the State'sIndictment

S £?A' S

This day came the State ofTexas by her prosecuting attorney, requesting leave of

court to strike language from the indictment/and aifer notice and hearing^he Court is of

the opinion that leave to strike should be granted and that "said indictment be stricken

accordingly.

It is therefore the order ofthe Court that the prosecuting attorney be and is directed

to physically change the wording ofthe indictment to reflect on its face the striking of

language approved by the Court.

Signed this the dayofMa*cl£2011. ?

B}

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