•DO

ITED STATE SUPREME, COURT OF TEXAS

AUSTIN DIVISION

RECEIVED IN

COURT OF CRIMINAL APPEALS

APR 01 2015

LEON HARRISON,

Appellant

vi m

: CASE: No . ! 4-1 3-M$&?faJBfo, Cl@rk

' PDR No.PD-0392-14,

TC:#635921; CT : #230TH _.. _^

FILED IN

THE STATE OF TEXAS, \ MjWVr^ COURT OF CRIMINAL APPEAL?

APPELLEE.r* §

APPELANT'S REQUEST COURT EN BANC TO CONSIDER COURT OF

APPEALS DENIAL OF APPELLANT'S MOTION UNDER RULE. 60(b)(5)

APR 01 2015

Abe) Acosta, Clerk

Appellant bring this action to request the Court to En Banc on

considering the denial of 14th Court of Appeals and the Texas Cou

rt of Criminal's denial of Appellant prose motion under Rule 60(b)

(5), and will show the Court the following:

Statement Of Ease

The nature of the Motion is from the 14th Court of Appeals, affirming

the trial court's unfavorable findings under article 64.U4 of the Texas

Code j.of Criminal Procedure, which was made on September 24,2012 (CR at

1 03)., Appellant timely filed his pro se notice of appeal, pursuant to

art.64.05, on Uetooer 16,2012, (CR at 106).

Appeant was appointed counsel in the appeal. On October 9,2013, appeal

counsel filed Motion To Abate Appeal, pending the Court of Criminal App

eals out in UHITFIEELD v. STATE ,No .01-1 2-00081-CR , 2013 uJii 2456720 (Tex.

App.-Houston [1st Dist.] Dune 6 ,201 3 ,pet. granted .(. In that case, the

court of appeals dismissed whitefiald's appeal of the trial court's un

favorable findings for want of jurisdiction, citing STATE v. K0UL0WAY,

360 S.uJ.3d 480 (Tex.Crim.App.2012). The court of appeals summarized

the holding in Holloway, as follows:

[E]ecause a writ of habeas corpus is only (sic) way to obtain

postconviction relief based on DNA testing, any opinion of a

court of appeals reviewing a trial court's findings under arti

cle 64.04 would bs advisory. Us lack jurisdiction to render ad

visory opinions.

Appellant's case is in precisely the same posture as Whitfield's was

on appeal and since the Court of Appeals affirm the 1st Court's major

ity opinion, the 14th Court of Appeal was obligated to dismiss the app

eal irrespective of any substantive issue he may have.
The 14th Court of Appeals refused to address appeal counsel's motion

to abate appeal and Appellant's pro se motion to correct appeals record

under Rule 34.6(f) and (d),T.R .A. P., before the appointment of counsel,

and appeal counsel motion to withdraw from case.

On February 27,2014 the Court of Appeals granted appeal counsel's mot

ion to withdraw as attorney of record in the above cause number, Which

inturn denied Appellant's pro se brief in this cause number.

The Court of Criminal Appeals refused the Appellant's PDR thereafter.

On 10/23/14, Appellant filed his Motion of Leave to File Under Rule

60(b)(5),Fed.R .Civ.Proc., and court denied motion as being time barred

to invoke its jurisdiction. On 1/29/15, Appellant filed under Rule 60

(b)(5), to the Court of Criminal Appeal. The Court of Criminal Appeals

addressed the issue by informing Appeals the Court no-longer had its

appellate record. On 1/30/15, Appellant filed a motion to the Court of

appeals to reconsider court' s denial of appellant's motion under Rule

60(b)(5) under Court En Banc. The court never addressed motion. Now

Appellant motion this Court to address his motion under Rule 60(b)(5).

REASON FOR MOTION UNDER RULE 60(b)(5)

Under Rule 60(c), timely and effect of the motion. Appellant will sh

ow this Court he is well inwhich the one year time limit of the court's

judgment in both the court of appeals and the court cf criminal appeals.

Rule 60(c) Federal Rules of Civil Procedure states:

A motion under Rule 60(b) must be made within a reasonable time and

for reasons (1),(2), and (3) no more then a year after the entry of the

judgment or order or the date of the proceeding. (2) Effect on Finlity.,

The motion does not affect the judgment's finality er suspend it's oper

ation, (d) other powers to grant relief, this rule does not limit a co

urt's power to: (1) entertain an in-dependent action to relieve a party

from a judgment, drder , or proceeding, (2) Grant relief under 23 U.S.C.

§^1655. ta a defendant who was not personally notified of the act an:

(3) Set_aside_a_judgment_for_fraud on the court, (e) bills aad writs s:dj

abolished. The following are abolished: Bills of review, bills in the

nature of bills of review, end writs of coram nobis, coram vcbis,and

(audita querela) [law latin "the complaint having been head"] a writ

available to a judgment debtor who seeks a rehearing cf a matter on
grounds of newly discovered evidence or newly existing legal defenses.

The writ of Audits Querela (=quarrel having been heard).. Introduced

during the time of Edward III, was available to reopen a judgment in

certain circumstances. It was issued as a remedy to defendants where

on important matter concering his case arised since judgment. It issue

was based on quitable, rather then common law pincipies. L.B.Curzon,

English legal history 103 (2d Ed.1979)

Audita querela is distinguished from coram nobis in that coram nobis

attacks the judgment itself, whereas Audita querela may be directed

against the enforcement, or further enforcement of a judgment which wh

en redered was just and unimpechable. TA CCS. Audita Querela § at

901 (1980).

Appellant case is a trial court's judgment not to find DNA results

not favorable to Appellant's actual innocence claim inwhich he was

excluded from the profile be DPS-crime lab, under Art.64.03-04 and 05

of Tex.Code.Crim.Proc. , which Appellant appealed to the 14th Court of

Appeals. Appellant wa3 appointed appellate counsel which filed a motion

to abate appeal pending the out-come of the Court of Criminal Appeals

decision in, WHITFIELD v. STATE,'40.9 S.U.3d 11 (20013); Reversed by

2014 Tex.Erim.App.LEXIS 683; Reversed by 430 S.W.3d 405 (July 22,2014

CCA.)- 2014 Tex.App.LEXIS 7902.

Appellant motions to the court of appeals and court of criminal appeals

was timely inwhich Rule 60(c) states said motion must be made.

PRAYER

Appellant have met the required showing of Rule 60(b)(5) & (c), and

pray that this Court will En Banc to consider the court of appeals den

ial cf Appellant's Motion of Leave Of Court Under Rule 60(b)(5) and in

all things grant this motion. Appellant reserved the right to appeal

any denial of this motion to the U.S. District Court Of The Southern

District Of Texa3.

Respectfully submitted,

^?J^2-^-^^U^C

:.LE0N HARRISON #'.815719

P0LUNSKY UNIT

3e72 FM 350 So.

LIVINGSTON, TX 77351
CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above aind

foregoing pleading was requested by Appellant to the Clerk of the

Court to forward a copy to the 14th Cdurt of Appeals and all parties.

4.

Respectfully submitted,

LEON HARRISON #815719

APPELLANT-PRO SE
ri£C©VEL>

DATE: 3/25/1 5 LEON HARRISON #815719 'N SUPREMECTOKr

POLUNEKY UNIT octi^V^ ' 3872 FM 350 So.

LIVINGSTON, TX 77351 APR 01 ?QJ5

BLMfehaw iHur-twfc, Uterh

SUPREME COURT OF TEXAS ^ CHIEF JUSTICE WALLACE JEFFERSON ; "*

PLACE 1, PO BOX 12248

AUSTlCNii TEXAS 7B711-224B

RE: LEON HARRISON \l. STATE, No .1 4-1 3-00239-CR; TCNo. 635921; COURT

# 230TH DISTRICT COURT OF HARRIS TEXAS,

Dear Justice Jefferson:

I would like to file this motion for the court under Rule 60(b)(5)

and bring to the docket to be ruled upon.

Please have the Clerk of Court file a copy with the 14th Court of

Appeal sand ail parties a file date.

Thank you for your time in this matter.

Respectfully submitted,

-^d^.^i^<n^Yi.,

Appellant, pro se

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