Mr. Kendrick Earl Edwards

James V. Allred Unit

2101 FM 369 N.

Iowa Park/ Texas 76367

1/22/15

To: Mr. Abel Acosta/ Clerk*

Re: Motion for Rehearing/ Rehearing Enbanc.

Writ No.

?(,-2>6>^o7

lOTlO^S D1

Dear Mr. Acosta/ Sir enclosed is my Motion for Rehearing/and or

Rehearing Enbanc. Please submitt .to the Honorable justices.

Thank you for your time and speedy response.

JAN29 2M

CC:> FileU

Truly yours, k _

Mr. Kendrick E. Edwards
EX PARTE

KENDRICK EARL EDWARDS

IN THE COURT OF

CRIMINAL APPEALS

OF TEXAS

§

§

§

WRIT NO .ll,<3>fcc/-Q7

APPLICANT'S MOTION FOR REHEARING

AND REHEARING ENBANC

Comes Now Kendrick Earl Edwards, hereinstyled Applicant files this

motion for rehearing and rehearing enbanc to wit:

ART.I.

The justices have through their denial without a written order is

manifest injustice and against the courts own case law in well es

tablished opinions. In the overall review there is a meritorious

Suffiency of the -evidence claim^-The review of the Court should

have been in line with Jackson v. Virginia {Citation omitted) as

outlined and enuciated in Brooks v. State/ 3234S.W.3d 893(Tex.Cr.

App. 2010). In the instant cause, the sole issue for the jury to

rule upon was the quality of edvidence presented. This was a he -•

said she said case involving and alleged armed robbery with the

evidence except the complainant's testimony that Applicant and a

female co-defendant robbed him at gunpoint. The only evidence that

the State produced was credit card and drivers license belonging

to the complainant that was found during an illegal search and

seizure of the Applicant's uncles car wheirevconsent was given

1.
MOTION CONT:

during a custodial interrogation while Applicant was handcuffed

on the ground for two-hrs. Said evidence if any only tend to show

that complainant was in said vehicle at some point and by its very

nature did not point to an alleged robbery. It is no longer permis

sible merely to qoute the Jackson standard;and then turn around and

apply the Thompson no evidence standard as the Court hasrhistorically

done. Legal sufficiency in criminal cases is judged by the quality,:_

not the quantity, of evidence supporting the accuracy of the verdict.

Legal sufficiency of the evidence is "such evidence,,-in character,

weight, or amount, as to legal justify the judicial or official action

demanded," in criminal cases, only that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that

every element of the offense has been proven beyond a reasonable doubt

is adequate to support a conviction. This case has not met :that burden

of proof. There is no higher burden of proof in trial criminal-or civil,

and there is no.higher standard of appellate review than the standard

mandated by Jackson, all civil burdens of proof and standards of appel

late review are lesser standards than that mandated by Jackson indeed,

the Supreme Court explicitly held in fie Winship/ that a juvinile could

not constitutionally be adjudicated under the civil standards of proof

(or appellate review) of preponderance of the evidence. The Court noted

that "preponderance test is susceptible to the misinterpertation that

calls for the trier of fact merely to perform an abstract weighing of

the evidence in order to determine which side has porduced the greater

quantum,.without .regard to its effect in convincing his mind of the

truth of the proposition asserted." As Justice Harlen explained in his

re winship concurrance, although "the phrases 'preponderance of the

evidence' and proof beyond a reasonable doubt' are quantitatively impre

cise, they do communicate to the fact finder different notions concern

ing the degree of confidence he is expected to have in the correctness

2.
Motion Cont:

of his factual conclusions." Justice Harlen noted that "[t]he

preponderance .test has been criticized, justfiably in my veiw, when

it is read as asking the trier of fact to weigh in an objective sense

the quantity of evidence submitted by each side rather than asking

him to decide what he believes most probably happened." Indeed, that

is precisely why the standard of proof and review in criminal cases has

been expressed, not by the quantity of evidence produced or how it might

be weighed when veiwed neutrally, but rather by the quality of the evi

dence and the level of certainty it engenders in the fact finders mind.

Legal sufficiency of the. evidence in criminal proceeding may be divided

into two zones: evidence of such sufficient strength, character, and

credibility to engineer certainty beyond a reasonable doubt in a reason

able factfinder's mind, and evidence that lacks that strenght.

Appellate review of a jury's verdict of criminal conviction focuses

society on the either "character of evidentiary sufficiency because a

defendant is entitled to an acquittal if the evidence lacks that strength.

Traditionally Texas Appellate courts have employed a five-zone review of

civil verdicts when the burden of proof at trial is that of "perponderance

of the evidence," in much cited law review of his article, Justice Calvert

distinguished those five zones and defined them. Zone 1 is the "no evidence"

zone, similar to the old legal sufficiency standard rejected by the Supreme

Court in Jackson for criminal cases. "No evidence" challenge by the party

without the burden of proof in a civil case my be sustained only when;

there is a complete lack of evidence of some element of a claim or defense;

Therea is a complete lack of evidence of some element of a claim or

defense; The evidence offered at trial is inadmissible under the rules

of law of evidence and thus cannot be.given any evidentiary value on

appeal; There is no more than a "mere scintilla" of evidence to prove

some essential fact of either claim or defense; or, The evidence conclu

sively demonstrates the opposite of the essential fact, if the appeallate

court finds "no evidence" to support the verdict, the evidence is legally

insufficient, and the opponet is entitled a judgment in his favor as a

matter of law. Because the case is is rift with ineffective assistance

of counseU claims in both the pre-trial proceedings trial-proceedings and

post-trial proceedings allowing these errors enuciated in collateral

reveiw. The Courts-have ignored Applicant's claims and said, cause has

not been adjudicated on the merits.

3.
ART.II.

Because of the complete breakdown of the the fair-cross section

requirement of the jury selection process, Applicant has not

had a fair and impartial trial. The response by the State is ludicrous

and without any merit, because is has no comparison and is^an::attempt

to justify a breakdown in the system that is inherent and is not an

accurate breakdown of population in FT. Bend County. The array that

was generated was predominately white older and shared the same socio/

economical status as complainant. The State did not disprove that there

was a complete breakdown of the jury process when the array's could not

be filled.:.;n Court officers were directed to go in the street and conduct

a round up, and this allowed foreigners, as well as citizens outside of

Ft.-Bend County. The complete failure of the the Court to address this

in an analytical fashion gives rise to the proposition that the claims

of Applicant was never adjudicated on the merits. There is a complete

breakdown of the jury system not only in Ft. Bend County but the manner

and means by which counsel do not address this critical issue results in

such a fundamentally weak case by its inception is made firm just by

the fact that the jury is inherently prejudiced andrbias and dont share

the same race as the defendant. This error has been addressed and cited

in numerous cases throughout this land. Texas for the most part relies

on juries of this nature for thisainsures that the conviction rate will

be higher for Blacks and Hispanic defendants. "Because the State nullifies

'preponderance of evidence doctrine';and relies on the fact that inherent

prejudices will win the day for them. It must be remembered that only

evidence offered of an armed robbery was complainant's testimony, and

all other evidence that was offered did not support an armed robbery

but was supposition. So when taking into the fact of what the jury

believes as the factfinder and the quality of the evidence and the racial

composition and what was decided as ultimate fact, the State did not meet

this burden of proof, but relied on composition of the jury that will

convict on a mere scintillia of evidence..-The .Court is completely direlect

of its duty by upholding such a shoddy case, that by right should not

have survived arraingment! Because of the fatal flaws of inherent in the

system Applicant should never have been brought to trial, let'alone

found guilty.
MOTION C0NT:

ART.III.

Applicant complains that the Court erred in not adjudicating the

cause on its merits, because of Applicant complaining that he was

subjected to Custodial Interrogation by said officer which rendered

consent to search vehicle involuntary. Furthermore, the Court erred

insomuch that it was revealed through State's witness that said

vehicle was the sole property of Applicant's uncle who had the great

er right to said property, and Applicant who was only a vistor to

uncle's house had no right to consent to search of said property.-

It was revealed at trial, that Applicant was stopped for driving-with

Windows too Darkly Tinted-by two Houston Police officers. Detective Hargrave who is Ft. Bend County officer whom was following Applicant, out

side his jurisdiction informed the two officers that he wanted too

search the vehicle for weapons. Placeing Applicant in restriants and

for two hours rummaged through car'on a fishing expedition.

It was testified from same detective -.that he accosted Applicant at

another place and gathered the same evidence in a previous trial, and

such inconsistent testimony suggest that there is a great discrepency

as to where exactly he retrived said evidence used at trial. The later

being that said vehicle was behind a locked gate on Applicant's uncle's

property whom Applicant could not have given consent and such said

evidence not only in this trial would have been effected by the illegal

search and seizure, but also under the Fruits of the Poisionous Tree

Doctrine. See Record (Vol.3 pg.126, 1-9,,pg.127, 1-25, pg.128, 25, pg.129,

1. Refrence previous Causes 39,701 and 39,7.02.

The numerous case law cited in relation edvidence gathering and it's

admissibility in every State of the Union is striaght. forward and gives

the courts the oppertunity to correct wrong doing by the factfinder, as

well.as Applicant's counsel who fail to suppress such edvidence.

What makes this of such prominate importance is; Said detective testified

in previous trial that he accousted Applicant while driving down the

street, and in this trial said he found him at an address 4203 Eieldveiw

Court. The consent form was signed by two Houston police officers, and

said detective said he discovered evidence from three cases at that time.
MOTION CONT:

ART.IV.

Applicant complains of Ineffective assistance of counsel from the

inception of this case. Applicant's counsel failed to file for direct

appeal after trial, forcing Applicant to file for out of time appeal.

In which this Court granted. Futhermore, with the fact that said counsel

abandoned Applicant and court had ordered counsel to file an affidavit

and said counsel refused to file within a timely fashion. Said affidavit

was not filed until Xj months after due date in comtempt of court order.

Applicant filed motion to take counsel on vior dire for failure to file

affidavit as well as insufficient affidavit in accordance with Ex Parte

Lopez/ & Meza v. State (Citation Omitted), when counsel filed affidavit

it was equ'i.va'lerit to a third graders work. For once the trial judge recused

himself there was no meaningful oppertunity to conduct a first hand know

ledge of the actions of the counsel, but also no meaningful recollection

of the hard facts in the case, espicially the counsel's blantent errors

and comtempt of court. Said counsel's affidavit on its face is insuffici

ent and should have been rejected by the court.

ART.V.

Applicant complained that the incorporation of the instant cause into

causes 39,701 & 39,702 renders Causer" same transaction same scheme as

defined as outlined in Penal Code § 3.01. Such incorporation renders

art. 42.08 T.G.C.P. unconstitutional for purposes of stacked sentences.

Applicant contends that during the trial of Causes 39,701 & 39,702 the

instant cause was incoroprated in its entirety. Such incorporation was

a full blown trial on the merits and not used for extraneous purposes

but as a tactic by the State to gain a tactical advantage over Applicant.

In Violation of the Due Process Clause as embodied by the 14th Amendment,

and the Equal Protection Clause of the 6th Amendment. Applicant complains

that Texas R. of Evid./ 404(b) as articulted in art. 37.07lTiC.C.P.

Same Transaction Contextual Evidence renders art- 3.01 unconstitutional

and should be relieved of stacked sentence.

ART.VI.

Applicant complains that the legitimacy of the recusal of judge Vaseck

should have been adjudicated on the merits when he had first han.d

knowledge of lowering the quantum of proof necessary to convict.

Allowing the State's attorney and Applicant's counsel to conspire to

6.
MOTION CONT:

to allow Applicant's counsel to abandon his client in the most important

phase ofhthe trial. Knowing that said detective was about to give

purjured testimony and before testimony agreed to not cross-examine:': said

detective on none of the events that would have circumvented the State's

case. Also by not prperly investigatingithe case, not interveiwing

potential witnesses. These are just a few of the litanies that the court

officer's engaged in circumvention of the U.S. Constitution, Texas Const.,

T.C.C.P., T.R. Evid., & Tex. Pen. Code. -.pp. ..;.:, ,::

CONCLUSION

Applicant urges the Court for a rehearing enbanc and/oE'E-ehearing

to redress the grievances and the manifest injustice as the fundalmental unfairness, and the circumvention of Applicant's Constitutional

pr6visi>ons;b.d:th State and federal. Because of the complexity of the

issues the inherent and ahtiquted method of calling up array's that

are bias from the racial composition and State's response was wholesale

inadequate. Because it only did a.:, pusedo analogy of 43 jury members

that does not represent a full array and no analogy of the county at

large was submitted in comparison to array called up. Such rendering of

State's response is not adequate and does not begin to satisfy the critirea of Taylor v. Louisiana/. 95 S.Ct. 692 and its progeny. There was a

complete breakdown of our adversairal system of justice and the Court

should by just justice order a rehaering in this most sensitive cause.

PRAYER

Applicant prays that the Court grant him a rehearing or rehearing

enbanc and all relief requested herein and any relief the Honorable

Justices deems just and necessary.

Signed this 22nd Day of Janurary, 2015.

Judge Presiding

Respectfullyvsubmitted,

hjflcfrf^nsido By:

U£0£

Kendrick Earl Edwards

Pro/se

2101 FM 369 N.

Iowa Park, Texas 76367