loso-a

ORIGINAL

No.PD-1050-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

AND THE NINTH DISTRICT COURT OF APPEALS FOR TEXAS

COA #09-13-00180-CR,#09-13-00181-CR,#09-13000182-CR,#09-13-00183-CR

From the 221st Judicial District Court

of Montgomery County* Texas

T,C.#12-03-02604-CR

RECEIVED \H

COURT OFCRIMINAL APPEALS

MAR 16 2015

Abel Acosta, Clerk

PETER JAMES MARTIN/ Appellant/

v.

THE STATE OF TEXAS/ Appellee,

APPELLANT'S PRO-SE MOTION FOR REHEARING

FROM DENIAL OF PETITION FOR DISCRETIONARY REVIEW

Due Date: 3/17/2015

Mailing Date: 3/12/2015

cc: State Prosecuting Attorney

Montgomery; County.D:»A.

file

FILED IN

COURT OF CRIMINAL APPEALS

MAR 16 2015

Abel Acosta, Clerk

Respectfully Submitted/

PETER JAMES MARTIN, #1846003/pro-se

STILES UNIT/ 3060 FM 3514

BEAUMONT/ TEXAS 77705
TABLE OF CONTENTS

Table of Authorities ... ii

Appellant's Certificate of Rule 79.2(c) Compliance iii

Statement of the Case, Procedural History iv-vi

Argument 1-11

1. Legally Insufficient Evidence of .Intent, Knowledge and Causation

Contrary to USCA 14 & Penal Code §6.04(a), as the Deputy Ran From

a Safe Location Directly Into the Path of Appellant's Already Aimed

and Straight Moving Car's Path for Two Seconds Only Before Backing

Out of the Way, Causing the "Threat" Himself, Requiring Reversal

of Conviction and Rendition of a Judgement of Acquittal 1-8

A. Relevant Facts 1-2

B. Standards of Review - Legal Insufficiency, Concurrent Causation 2-4

C. Application of Law to Facts 4-8

2. The Judge Violated Appellant's Rights to Proceed With Chosen Counsel 8-10

3. The Judge and 1st Counsel Unconstitutionally Aborted a Plea Bargain 8-11

A. Preservation 8

B. Facts 8-9

C. Choice of Counsel 9-11

D. Involuntary and Unknowing Rejection fo 35 Year Plea Offer 10-11

Prayer 11

Certificate of Service, Signature 11

And see. Attachments 1-15 in Support of Appellant's Bro-Se Motion for

Rehearing From Denial of Petition for Discretionary Review

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TABLE OF AUTHORITIES

Tex.Const.,Art.I,§10 Rights to Assistance of Counsel 9

U.S.Const.Amend.4 Unreasonable Seizures Guarantee 4

U.S.Const.Amend.6 Rights to Assistance of Counsel 9-11

U.S.Const.Amend.14 Rights to Due Process 1,2,7,8

Penal Code §6.04(a) Concurrent Causation 1,3,4,8

Penal Code §22.02(b)(2) Aggravated Threat of a Public Servant iv;1,7,8

Tex.R.App.P.21.2 When Motion for New Trial Required 8

Tex.R.App.P.21.5 State May Controvert; Effect 8

Tex.R.App.P.66.3(b) Important question of state or federal law that

has not been but should be settled by TCCA 7,8,10

Tex.R.App.P.66.3(c) Decided important question of state or federal

law in conflict with decisions of the TCCA or

the Supreme Court of the U.S. 7,8,10

Tex.R.App.P.79.4 Motion for Rehearing Decision 11

Tex.R.App.P.79.2 Motion for Rehearing Contents t\\

Austin v. State,748 S.W.2d 546(Tex.App.-Beaumont 1988 pet refd) 8

Baxter v. State,2004 Tex.App.LEXIS 4861(Tex.App.-Tyler 5-28-04 pet refd) 3

Beets v. Scott,65 F3d 1258(5th Cir.l995)(en banc) 10

Brooks v. State,323 S.W.3d 893(Tex.Crim.App.2010) v, 2

Brown v. State,183 S.W.3d 728(Tex.Acp.-Hous[l Dist]ll-23-05 rehg denied 1-4-06) 3

Brown v. State,2004 Tex.App.LEXIS 9479(Tex.App.^^stland 10-28-04) 2,3

Clarke v. State,270 S.W.3d 573(Tex.Crim.App.2008) 8

Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989) 9

Degrate v. State,712 S.W.2d 755(Tex.Crim.App.1986) 1,8

Dobbins v. State,228 S.W.3d 761(Tex.App.-Hcus[14 Dist]2007) 3

Dobbs v. State,2013 Tex.App.LEXIS 3050(Tex.App.-toarillo 3-20-13 rehg denied) 3

Estate of Starks v. Engert,5 F3d 230(7th Cir.1993) „ 4

Ferrel v. State,55 S.W.3d 586(Tex.Crim.App.2001) 8

Goad v. State,354 S.W.3d 443(Tex.Crim.App.2011) 2

U.S. v. Gonzalez-Lopez,548 U.S.140(2006) 9

Guevera v. State,152 S.W.3d 45(Tex.Crim.App.2004) 2

Holloway v. State,780 S.W.2d 787(Tex.Crim.App.1989) 9

Hooper v. State,214 S.W.3d 9(Tex.Crim.App.2007) 2

Jackson v. Virginia,443 U.S.307(1979) 2

Jones v. State,926 S.W.2d 386(Tex.App.-Ft. Worth 1996) 9

King v. State,125 S.W.3d 517(Tex.Crim.App.2003) 1,10

Lafler v. Cooper,No.10-209,566 U.S. (2012) 10,11

Malik v. State,953 S.W.2d 234(Tex.Crim.App.1997) 2

U.S. v. Miller,576 F3d 528(5th Cir.2009) 3

Ollivas v. State-203 S.W.3d 341(Tex.Crim.App.2006) 3

Perkins v. State,905 S.W.2d 452(Tex.App.-El Paso 1995) 4

Powell v. Alabama,286 U.S.45(1932) 9.10

Robbins v. State,717 S.W.2d 348(Tex.Crim.App.1986) 4,8

Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 4,10

Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 4,10

Swann v. City of Richmond,498 F.Supp.2d 847(E.D.Va.2007) 4

Whiddon v. State,2007 Tex.App.LEXIS 916(Tex.App.-Waco 2-7-07 no pet) 2,3

Wheat v. U.S.,486 U.S.153(1988) 9

Williams v. State,235 S.W.3d 742(Tex.Crim.App.2007) 4,7

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APPELLANT'S CERTIFICATE OF RULE 79.2(c) COMPLIANCE

Appellant Martin certifies that the instant motion for rehearing is ground

ed in the following specified substantial intervening circumstances, which

are asserted in good faith and not for delay:

1. Martin's inmate legal assistant mailed the completed petition and appendix

records to his family for photocopying the numbers required by the Court.

2. Martin's family made 18 copies of the petition and appendix records, and

mailed them to Martin's inmate legal asste&tet on 10/28/14. Att.#3.

3. Prison officials notified Martin's legal assistant on 11/4/14 about receipt

of the documents posing a problem. Att.#4.

4. Prison officials refused to turn over the documents to Martin's leqal

assistant on 11/5/14 because "legal documents on another offender". Att.#5.

5. Martin's legal assistant notified the Mailroom Supervisor, and this Court,

of the confiscation of the legal documents from him on 11/5/14. Att.#6.

6. The Mailroom Supervisor responded in writing "you can't have an outside

source (3rd party) mail things to you that ain't yours." Att.#6.

7. An appeal of this decision was utilized, Att.#5, which was denied. Att.#7.

8. The prison grievance system was exhausted without success. Atts.#8,#9.

9. Appellant Martin was prevented from filing anything substantive, until

this issue was resoled, as prison officials would not return the original

petition and appendix records (or photocopies)to hdm of h-isi.famlly.TTherefore an

additional motion for extension of time was requested and granted. Att.#10.

10. Appellant Martin requested this Court to intervene in a "Motion to Order

State to Return Confiscated Documents to Appellant", which Was" denied 12/19/14

Att.#.ii ^:.:.

11. Appellant Martin's legal assistant was forced to improvise with new plead ings and different exhibits because prison officials refused to return any

of the confiscated, completed originals to him pursuant to any process described

hereinabove and otherwise attempted informally.

12. The improvised new pleadings and exhibits were filed in this Court on

12/31/15, Att.#12, as the final extended due date was 1/2/15. Att.#10-1 & 13.

13. Appellant Martin's improvised petition included a supplemental-brief which

was 34 pages long. Martin requested leave to file same, but this Court instead

denied a motion for leave to exceed the page limit. Att.#14.

14. This Court refused the pro-se petition for discretionary review on 2/4/14,

Appx.#15, apparently on the merits of only the petition which had unfortunately

incorporated the supplemental brief cited above.

15. The instant motion for rehearing is attempting to overcome the above des

cribed interference with Appellant's good faith attempts to file an otherwise

meritorious PDR brief. In that spirit Martin has selected three arguments from

his previous filings, which briefly argue two Due Process issues of legally

insufficient evidence, a Sixth Amendment choice of -^counsel sclaiirr.andranc; inter*-

related"': involuntary and unknowing rejection of a plea bargain deal claim.

For the above stated reasons, as supported by the attached documentary

evidences which are either the originals or true and correct copies of the

originals, as certified and otherwise sworn to, Appellant Martin respectfully

requests this Court review the instant motion for rehearing doe to being ground

ed in the above substantial intervening circumstances preventing him from filing

his originally prepared documents in this case and being forced to improvise

from his legal assistant's notes and leftover evidence. Tex.R.App.P.79.2(c).

-in- y&^Qt^^rfha*^
STATEMENT OF THE CASE/ PROCEDURAL HISTORY

1. This case is an appeal from four convictions in the 221st Judicial District

Court of Montgomery County, based on a four count indictment alleging (CT.I)

"threaten" Deputy C. Azwell by using a vehicle as a deadly weapon under 1st

degree felony Penal Code §22.02(a)(2),(b)(2)(B), (CT.II) "flee" from Deputy

C. Azwell by using a vehicle as a deadly weapon under 3rd degree felony Penal

Code §38.04(b)(2)(A), (CT.III)"alter,destroy,or conceal""Sryinges" with "intent

to impair its availability as evidence ... related to" a "Possession of Control

led Substance ... offense" under 3rd degree felony Penal Code §37.09(d), and

(CT.IV) possession of a controlled substance under one gram, a state jail felony

under Health & safety Code §481.115. The indictment contained five enhancement

paragraphs alleging prior, convictions. Clerk's Record (C.R.),39-40. Appellant

Martin (Martin) pleaded "not guilty" to all counts, Reporter's Record (R.R.),v.4

p.l, but the jury found him guilty on all counts as alleged in the indictment,

made an affirmative finding of a deadly weapon in the count II evading arrest

count, R.R.,v.9,pp.l28-29, found the first three enhancement paragraphs "true"

and assessed punishments for counts I-III at "life" in prison and for count

IV at twenty years in prison, all concurrent. R.R.,v.11,pp.211-12.

2. On May 4,2012 retained defense counsel Mr. Ward of the firm DeGuerin and

Dickson appearsed for Martin filing a Brady motion and on May 23,2012 then

trial judge Michalk ordered all exculpatory evidence produced. C.C.20-23. On

August 3 & 30,2012 consecutive agreed settings for plea acceptance were sheduled,

C.R.47-54, but on September 20,2012 Mr. Ward filed a Motion to Withdraw (MTW)

claiming he was only hired for plea negotiations, the case was now set for

trial and he was not retained to represent Martin during the trial stage. C.R.,

55. See post.,pp.8-11. A Mr. Boyd represented Martin in this trial, id.

3. On January 23,2013 the State filed (1) a CD video and 11 pages of dispatch

police records summarizing its contents, C.R.,167-80, and, (2) a motion in

limine seeking to limit Martin from arguinq he was "actually or factually in

nocent" (point 5) and "any investigation of Deputy Chris Azwell, whether con

cluded or ongoing" (point 11), amonqst other items, C.R.181-85, which were

all granted. R.R.,v.3,pp.7-13. Martin has no knowledge of whether the CD video

itself was actually forwarded to the Court of Appeals.

4. The September 20,2012 MTW hearing and September 27,2012 Motion to Substitue hearing (MTS) reporter's records were improperly not included in the record

on appeal. Martin has obtained copies thereof and included them in his Appendix

at pages 10-28 as they are relied upon in part post-,pp.8-11.

5. On January 28,2013 jury trial commenced before Judge Turner replacing

without explanation previous Judge Michalk. See post.pg.9(relying on the issue).

6. On January 29 & 30,2013 Mr. Boyd presented a Bill of Exception attempting

to attack the credibility of Deputy Azwell,the main witness against Martin,

arguing the count I threat of* a public servant charge was false, a "cover-up"

of Azwell's "unnecessary shooting" of Martin to arrest him, R.R.,v.7,pp.1-37,

19-21, by introducing as a "Sealed Appellate Record" a DVD interview of Azwell

and his police provided lawyer concerning Martin's arrest and shooting, and

of the lawyer asking Azwell "isn't there one more thing that you forgot or

wish to tell" about this arrest and shooting, which the trial court refused

to allow before the jury, id.,pp.8-9,20-21,40-43.

-iv-
7. Motions for new trial were filed, C.R.220,226, arguing, in parts, that

(1) originally retained trial counsel Dick DeGuerin and Mr. Ward renderred

ineffective assistance of counsel denying Martin choice of counsel and a 35

year plea offer, aggravated by previous trial judge Michalk's on record advice

to Martin to pay Mr. Ward an additional $35,000.00 or else Mr. Ward "will not

want to do a good job for you"-see post.,pg.8-11(Issues 2 & 3); C.R.226-27 ,

(2) the trial court improperly refused to allow the defense to present any

evidence offered to attack Deputy Azwell's critical trial testimonies, C.R.227;

R.R.,v.9(DVD video), and, (3) the trial court improperly denied trial counsel

Mr. Boyd's request for assistance in conducting the motion for new trial, since

Mr. Boyd was "traumatized" by the substance and result of Martin's trial thus

"[n]eeded the help" of an appeal counsel and early preparation of the trial

transcripts. C.R.228-31; R.R.,v.13,pp.5-20; R.R.v,14,p.8.

8. Timely notices of appeal were filed. C.R.234-35. Appeal counsel Mr. Allen

wasifo?e appointed. R.R.,v.13,pp.5-9,13,18-20.

9. On December 10,2013 appeal counsel filed an "Appellant's Brief" arguing

one issue of a failed motion for mistrial. On February 10,2014 the State res

ponded to the argument.

10. On March 17,2014 Martin filed a pro-se motion complaining about appeal

counsel's "only argument" disregarding the major defenses presented in his

trial., criticized counsel's lone argument as meritless, and stated counsel

refused to allow him to participate in his own appeal by denying him copies

of his trial transcripts. Appx.49-52, 03-17-14 Pro-Se Motion,1-4(w/att'd record

of letters to counsel and the trial court). On March 20,2014 the Court ruled

since appeal counsel "already filed a brief on the merits" that the Court "would

not consider any pro-se submissions while a party was-represented by counsel".

Appx.48-Clerk's Notice.

11. On May 21,2014 the Court affirmed Martin's convictions and sentences.

Appx.33-41, Opinion & Judgement. The Court then purported to conduct an evidence

sufficiency analysis stating "[t]he evidence of Martin's guilt leads to the

conclusion that Martin's prospects of being acquitted on any of the charges

for which he was tried were highly unlikely." Appx.38-Mem.Op.,6. This is not the

standard of review in Texas for legal sufficiency analysis, a "highly unlikely"

standard. E.g., In re Winship,397 U.S.358,361-68(1970)(rejecting conviction

based on a preponderance of the evidence standard, requiring proof beyond a

reasonable boubt standard; rev'g conviction): Brooks v. State,323 S.W.3d 893,

894-95(Tex.Crim.App.2010)(overturning Texas factual insufficiency standard.of

review, in favor ofFederal "whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt" standard). For

this reason alone the Court should vacate and remand for a proper legal suffic

iency analysis review.

12. The Court's opinion (1) did not address the legal sufficiency of the evi

dence to support the deadly weapon enhancement of the evading arrest charge,

Appx.38-Mem.Pp.,6, A HOTLY CONTESTED ISSUE IN TRIAL, (2) concluded only Deputy

Azwell's testimony supported the aggravated threat of a public servant convict

ion, but improperly omitted exculpatory, relevant facts from it's analysis,

id.,6-7, ANOTHER HOTLY CONTESTED ISSUE IN TRIAL.

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13. On June 13,2014 Appellant filed a pro-se 57 page motion for rehearing

and motion to exceed the page limits, but on June 26,2014 the Court of Appeals

denied the motion to exceed the page limits and sua sponte extended the time

limit until July 21,2014 to file the motion for rehearing. In this motion Martin

attempted to rakse the following issues: (1) Double Jeopardy prohibitions on

multiple punishments for the same conduct in Counts I and II required the Count

II evading arrest conviction to be vacated; (2) Due Process required the Count

III conviction to .be reversed and acquitted for legally insufficient evidence

of "Syringes" being "related" to the offense of "Possession of a Controlled

Substance" and due to no affirmative link of the "Syringes" to Martin in this

case; (3) Due process required the Count I aggravated threat of a public ser

vant conviction to be reversed and vacated duelrfcolegaUy insufficient evidence

of Martin "threatened" Deputy C. Azwell, Deputy C. Azwell falsely testifying

in trial to the alleged threat, and Deputy Azwell being the sole cause of any

alleged threat; (4) Due process required deletion of the evading arrest affirm

ative finding of a deadly weapon by use of a motor vehicle holding from the

judgement, based on legally insufficient evidence of Martin's actually endanger

ing anyone by proximity; (5) Due Process required reversal of the count I con

viction for aggravated threat of a public servant, as Deputy Azwell violated

USCA 4 and Penal Code §6.04(a) to cause by himself any alleged "threat" to

Deputy Azwell, because Deputy Azwell falsely testified to being in front of

Martin's car when firing his weapon at Martin when in fact the evidence shows

he shot at Martin from the side of Martin's car and his fellow deputy knowingly

suppressed critical evidence and facts proving Deputy Azwell was NEVER in front

of Martin's car at ANY time as falsely testified to in trial; and (6) the Sixth

Amendment rights to effective assistance of counsel, choice of counsel (as

also protected by Tex.Const.Art.I,§10) and to conflict free counsel were violat

ed in five specific trial and direct appeal issues. 6-23-13 Prig.Mot.for Reh'g.

14. On July 21,2014 Martin filed a necessarily severely truncated 15 page

amended motion for rehearing in the Court of Appeals. On July;24,2014, the

Court of Appeals "overruled" without written opinion Martin's amended motion

for rehearing. Appx.45-Clerk's Notice. Presumably, this decision did not con

sider the underlying merits of ANY issue Martin raised. Hanby's Texas Rules

of Appellate Procedure, Annotated,204(West's 2011 ed.)[citing, Rochelle v.

State,791 S.W.2d 121,124(Tex.Crim.App.1990)].

15. On August 7,2014 Martin timely filed a pro-se Motion for En Banc Consider

ation in the Court of Appeals, which was also "overruled" v^fcthout written

opinion on September 4,2014. Appx.42-Clerk's Notice. On August 14,2014 Martin

also served a pro-se Motion to Abate Appeal and Remand to the trial Court for

Fact Findings on his ineffective assistance of appeal counsel and denial of

a meaningful appeal due process claims, amongst other issues, but the Court

of Appeals never decided this motion.

16. A duplicate or similar Motion to Abate Appeal and Remand to the Trial

Court for Fact Findings was filed in this Court and subsequently "denied" also.

17. Several motions for extensions of time were filed and granted, with the

petition and a supplemental brief being filed on December 31,2014. This Court

construed the motion for leave to file the supplemental brief as a motion to

exceed the page limits, denied the motion to exceed, Att.#14, and refused PDR

on February 4,2015. Att.#15. A motion for extend time to request a rehearing

was granted extending the deadline to file until March 17,2014.

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1.

ARGUMENT

LEGALLY INSUFFICIENT EVIDENCE OF INTENT/ KNOWLEDGE AND CAUSATION CONTRARY TO

USCA 14 & PENAL CODE §6.04(a)/ AS THE DEPUTY RAN FROM A SAFE LOCATION DIRECTLY

INTO THE PATH OF APPELLANT'S ALREADY AIMED AND STRAIGHT MOVING CAR'S PATH FOR

TWO SECONDS ONLY BEFORE BACKING OUT OF THE WAY, CAUSING THE "THREAT" HIMSELF,

REQUIRING REVERSAL OF CONVICTION AND RENDITION OF A JUDGEMENT OF ACQUITTAL

A. Relevant Facts

1. "With respect to Martin's conviction for aggravated assault against-a

public servant, Deputy Azwell testified that Martin, in attempting.to

evade arrest, tried to run him over with his car. See $22.02(b)(2).

Martin did not testify at the trial, and the video admitted into eviddence that captured Martin evading arrest does not include the part

where Martin used his car in an effort to run over Deputy Azwell.

Nonetheless, Deputy Azwell*s testimony about Martin's having driven

directly at him as the chase was ending is not contradicted. According

to Deputy Azwell, he fired several shots at Martin's car when Martin

drove toward him. Based on Deputy Azwell's testimony, it is unlikely

that the jury would have chosen to acquit Martin on the charge that

he committed an aggravated assault against a public servant. Addition

ally, nothing in the record supports a conclusion that the jury might

have given Martin another punishment on the charge." Appx.38-39,

Mem.Pp.,6-7.

The Court of Appeals erred by omitting relevant, exculpatory facts from it's

analysis, implicating a legal sufficiency issue of great importance to Texas

jurisprudence which this Court has yet to address, but should address, because

it has important impact on the interests of justice in other "public servant"

cases, hence a PDR should be granted on this issue. DeGrate v. State,712 S.W.2d

755,756(Tex.Crim.App.1986); King v. State,125 S.W.3d 517,520(Tex.Crim.App.2003) (Cochran,J.,concurring).

2. The above quoted sufficiency analysis failed "to consider the incar video

exhibits contents and related testimony and exhibits that uncontrovertedly

establish Deputy Azwell's patrol car's location when he exits it, his exit being

heard clearly on the incar video's audio by a deor slam, and four seconds later

he is shooting at Appellant while backing out of the way of Martin's car's path.

R.R.,v.lO-State's Ex.204(incar video shows patrol car's parked location and four

second timeline); Att.#l, R.R.,v.lO-State's Ex.215("Lieca Scan" drawing of

resident's lawn, house, garage, driveway and Martin's straight, unswerving.path

driving across it); Appx.l, R.R.,v.5,pp.85-86(Azwell's supporting testimony

showing he ran out of his car parked on driveway, and directly into path of

Martin' s carmomentarily).

3. The incar video shows Deputy Azwell pursues Martin onto a dead end street,

and fully around one circle through a resident's lawn, parking his patrol.car

on the street end of the resident's driveway with two other cars at the other

end nosed up against the garage. R.R.,v.lO-State's Ex.204(incar video evidence).

The testimony is that next Martin continued to evade by driving around a second

circle through the resident's lawn while Deputy Azwell's patrol car remained

parked on the street end of the driveway. Appx.l, R.R.,v.5,pp.85-86(Azwell).

4. The relative positions of the resident's lawn, house, garage, driveway,

and Martin's unswerving, direct driving path across the driveway mfitjfee Deputy

Azwell shoots at Martin, are shown by the State's "Lieca Scan" exhibit, which

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significantly omits the location of Azwell's patrol car when parked on the

street end of the driveway as Martin crosses the driveway. Atti#l, R.R.,v.10-

State's Ex.215("Lieca Scan" drawing).

5. Deputy Azwell testified his chosen driveway parking position created a

"car-length-and-a-half" space between the rears of his patrol car and the resi

dent's two cars already parked at the other end. Appx.l, R.R.,v.5,p.86.

6. Critically unrecognized in this court of appeals opinion, is the exculpa

tory difference between Martin driving his car unswervingly direct, aimed at

the space between cars on the driveway BEFORE Deputy Azwell exited his patrol

car and ran into that very space deliberately into the path of Martin's already

already aimed and moving car, and Martin driving his car directly at Deputy

Azwell for two seconds only AFTER Deputy Azwell exited his patrol car and had

run into the space between cars deliberately into the path of Martin's already

aimed and moving car. The former poses no "threat" as alleged in this case,

and the latter was not done intentionally or knowingly because Deputy Azwell's

conduct, by itself, caused any "threat" as alleged in this case and not Martin.

7. It is undisputed that before this encounter on the dead end street, Martin

was driving "reckless". R.R.v,5,p.79; R.R.,v.6,pp.66-67(testimonies of Hadrych

and Azwell).

8. The jury was shown Martin had only 1 eye. R.R.,v.9,pp.37-38,41-42,47-48.

B. Standards of Review - Legal Insufficiency/ Concurrent Causation

9. In order to determine if the evidence is legally sufficient under Due

Process, we must review all of the evidence in the light most favorable to.the

verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S.307,318-19(1979)(bold added). See Whiddon v. State,No.10-06-00085-CR,

2007 Tex.App.LEXIS 916 @ *2(Tex.App.-Waco 2/7/2007 no pet)(aff'g §22.02(b)(2)(B)

case); Brown v. State,No.11-03-00253-CR,No.11-03-00254-CR,2004 Tex.App.LEXIS

9479 @ *4(Tex.App.-Eastland 10/28/2004)(rev'g §22.02(b)(2)(B) conviction),pet

refd,In re Brown,2005 Tex.Crim.App.LEXIS 582(4/13/2005). This is the only stan

dard for sufficiency of evidence, Brooks v. State,323 S.W.3d 893,894-95(Tex.

Crim.App.2010).

10. Sufficiency is reviewed on the combined and cumulative force of the evi

dence, not by viewing each fact in isolation. Goad v. State,354 S.W.3d 443,450

(Tex.Crim.App.2011). A court of appeals may not substitute its judgement for

the judgement of the factfinders by re-evaluating weight or credibility. Brooks,

supra. But the factfinder's resolutions of conflicts in the evidence must be

rational and inferences drawn reasonable. Hooper v. State,214 S.W.3d 9,15-16

(Tex.Crim.App.2007). Conclusions reached by speculation might not be completely

unreasonable, but it is not sufficient to support a finding of beyond a reasnoable doubt, id.

11. For purposes of a sufficiency analysis, the elements of the offense are

defined by reference to a hypothetically correct jury charge. Malik v. State,

953 S.W.2d 234,240(Tex.Crim.App.1997). Circumstantial evidence is as probative

as direct evidence in establishing the guilt or innocence of the actor. Guevera

v. State,152 S.W.3d 45,49(Tex.Crim.App.2004). On appeal, the same standard
of review is applied to both circumstantial and direct evidence. Id.

12. In cases like Martin's of assault by threat against a public servant via

use of a motor vehicle as a deadly weapon, before a jury can convict, the State

must produce legally sufficient evidence of intent or knowledge, to prove beyond

a reasonable doubt either a conscious objective to threaten a public servant

with imminent bodilyi injury, or, an awareness that one's conduct was reasonably

certain to threaten a public servant with imminent bodily injury. Brown,2004

Tex.App.LEXIS 9479 @ *5; Whiddon,2007 Tex.App.LEXIS 916 @ *3. It is not enough

that the appellant was either reckless or negligent. Brown,infra. @ *5. It is ir

relevant whether the public servant felt threatened, since the crucial inquiry

remains whether the appellant's proven driving conduct posed "an immediate threat

of danger to a person of reasonable sensitivity." Whiddon,infra. @ *4[quoting,

Plivas v. State,203 S.W.3d 341,347(Tex.Crim.App.2006)].

13. Caselaw establishes that in order to prove beyond a reasonable doubt an

appellant intentionally or knowingly threatened a public servant with imminent

bodily injury by driving a car directly at the officer, it must be proven by

ci rcumstantial evidence or otherwise that relates to the appellant's culpable

mental state with regard to the officer specifically, that the appellant's con

scious objective was to threaten the officer with imminent bodily injury, or the

appellant was reasonably certain that he would threaten the officer with imminent

bodily injury. Brown,2004 Tex.App.LEXIS 9479 @ **5-6(rev'g & acquitting); Cf:

Dobbs v. State,2013 Tex.App.LEXIS 3050 @ **2-4(Tex.App.-Amarillo 3/20/13 reh'g

denied)(finding sufficiency, as appellant "accelerated towards him. The officer

fired his weapon as the car approached and then jumped out of its path just

before it could strike him."); Dobbins v. State,228 S.W.3d 761,765-66(Tex.App.-

Hous.[14 Dist]2007)(finding sufficiency, as appellant drove directly at officer,

stopped at officer's direction, then moved car forward striking officer); Whiddon

2007 Tex.App.LEXIS 916 @ *4(finding sufficiency, as appellant "drove toward

the trooper, and failed to hit the trooper only because the trooper moved and

shot out Whiddon's tire."); Baxter v. State,2004 Tex.App.LEXIS 4861 @ *6(Tex.App.

-Tyler 5-28-04 pet refd)(finding sufficiency, as appellant drove his car dir

ectly towards the officer in an attempt to escape); U.S. v. Miller,576 F3d 528,

529-30(5th Cir.2009)(finding sufficiency, as appellant was trying to escape

by driving through a narrow gap between 2 officer's 2 cars, while the 2 officers

were standing in that gap and had to jump out of the way). When the evidence is

uncontroverted that an appellant's car did not swerve but rather drove straight

for the only available exit to continue evading arrest, the evidence will be

legally insufficient to establish the appellant intentionally or knowingly

threatened the officer by driving his car at the officer. E.g., Brown v. State,

183 S.W.3d 728,732-33(Tex.App.-Hous[l Dist]ll/23/05 reh'g denied 1/4/06)( evidence

was conflicting as to whether appellant's driving swerved away after being

shot at by officer, or merely sped off toward the exit, holding it was error

to not charge jury on reckless driving, but finding error was harmless here).

There appears to be no §22.02(b)(2) caselaw involving an officer that runs

directly in front of the appellant's car as a prelude to the alleged "threat".

14. Additionally, Penal Code §6.04(a)(Concurrent Causation) provides:

"A person is criminally responsible if the result would not have occur

red but for his conduct, operating either alone or concurrently with

another cause, unless the concurrent cause was clearly sufficient.to

produce the result and the conduct of the actor clearly insufficient."

(bold added)

-3-
15. Under the "unless" clause of §6.04(a), if Martin's driving "was clearly

not sufficient by itself", to result in the threat alleged in the indictment,

"but the conduct of another was clearly sufficient, then the evidence is not

legally sufficient to submit the case to a jury or to sustain a conviction."

Williamsr v. State,235 S.W.3d 742,769(Tex.Crim.App.2007)(rev'g conviction for

legal insufficiency);, accord, Robbins v. State,717 S.W.2d 348,351(Tex.Crim.App.

1986)("If the additional cause, other than the defendant's conduct, is clearly

sufficient, by itself, to produce the result and the defendant's conduct by

itself, is clearly insufficient, then the defendant cannot be convicted."),

vacating, on remand,716 S.W.2d 117(Tex.App.-El Paso 1986)(jury charge error

on §6.04(a), rev'g & rem'dg for new trial); Nugent v. State,749 S.W.2d 595,598

(Tex.App.-Corpus Christi 1988 pet refd)("There was evidence that Meza turned

his vehicle into the path of" appellant's car, court held "the trial court

should have applied the law of concurrent causation to the facts in this case

and charged the jury:that if if found Meza's conduct clearly sufficient to cause

the accident and Nugent's clearly insufficient to cause the accident, they

should acquit the defendant.": rev'g & rem'dg for new trial).

C. Application of Law to Facts

16. In Martin's case, the incar video evidence and Deputy Azwell's testimony

indisputably establish, in four seconds total, Deputy Azwell exited his patrol

car slamming the door, ran into the "car-length-and-a-half" space between the

rears of his car and the resident's cars, stopped directly in the center of

this space which was also directly in the center of Martin's car's already

aimed and unswerving- path, then shot at Martin while backing out of the way.

This conduct has been held to demonstrate the officer unreasonably created

the very encounter that ostensibly justified shooting the driver of the evading

vehicle in violation of the Fourth Amendment to the U.S. Constitution. Swann.v.

City of Richmond,498 F.Supp.2d 847,863(E.D.Va.2007)[citing, Estate of Starks,v.

Engert,5 F3d 230,232,234-35(7th Cir.1993)]. Additionally, Martin- requests

this Court take judicial notice of the United States Congress recent pressuring

of Customs and Border Patrol agents and officers ("CBP") into "rethinking its

recalcitrant response" to "some border agents stood in front of moving vehicles

as a pretext to open fire", resulting in CBP Chief Michael Fisher announcing

in March 2014 "official changes to the Border Patrol's use-of-force policy.

Agents would be prohibited from stepping in.ifront of moving cars ". See,

attached Texas Monthly article,p.7(@ http://www.texasmonthly.com/story/whowill-watch-the-watchers:?fullpage=l ). Perkins v. State,905 S.W.2d 452,453(Tex.App.

El Paso 1995)[citing, Rochelle v. State,791 S.W.2d 121,124-25(Tex.Crim.App.

1990)](authorizing judicial notice of non-record materials;att'd:L:to :a motion

for rehearing for Due Process concerns or the interests of justice). It thus ap

pears there exists problems with law enforcement officer's employing pretexts

such as jumping in front of moving vehicles, to shoot at the driver, out of

frustration, not a sense of endangerment, and then trying to cover it up. Such a

result should be protected against, by this Court's grant of rehearing; and"PDR.

17. Martins reprinted record excerpts in his Appendix,pp; 1-2/ are as follows:

(State's direct examination)

State: So when ycu got cut of your car, tell us where you went.

Azwell: Fran that point, I went to the rear of my patrol car. There was approximately a car

length and a half space between my patrol car and the vehicles parked ;;cn the driveway. I

had nothing else to use to contain Mr. Martin and his vehicle. I stepped directly in between

these vehicles and my patrol car, and made eye contact with Mr. Martin through the windshield

of his patrol car (sic) and gave him a visual signal to stop at that point. R.R.,v.5,p.86.

-4-
Q. And at that point, do you have your duty weapon drawn?

A. Yes, I did draw my duty weapon. ...

Q. Wat did Peter Martin do when he saw you ...

A. I remember he made eye contact with ire. And he accelerated aggressively and I remember

grass fran the yard flying up, and he came directly at ire. ... Iknew he was going to try

to get out of there at any cost, and it didn't matter if I was standing in the way or not.

R.R./V.5/pp.87-88. ...

Q. ... How were you able to get out of there?

A. Just by moving cut of the way of the vehicle caning towards me. And actually just narrowly.

I mean he probably passed maybe a foot, a foot and a half next to my body.

Q. ... If I'm driving straight towards you like this, which way did you back out of the way?

A. I backed out of the way towards my vehicle to take cover behind my vehicle.

Q. So you were favoring towards the passenger side of the defendant's car? A. Correct.

Q. Is that Mien you fired these shots in that nonent?

A. Out of — once again — out of fear of my — fear of my own welfare, my own life. And

not cnly the resident's that were in the area. Kids and everybody else. ...

Q. immediately after the shots were fired you've moved out of the way, what is the very next

thing you have to do?

A. I — he continued to evade. And Igot back into my patrol car and continued to pursue.

R.R./V.5/pp.89-90. ...

(Defense's Cross Examination)

Q. ... There is sore shots that we hear on cne of these tapes, I guess. Was that on the tape,

do you think?

A. That's correct.

Q. But no video at all.

A. Not of the shooting.

Q. And basiccaly we just have your word, don't we?

A. At this point. ... R.R./V.6/p.l4.

Q. ... the car is approaching. Let's just say I'm the car. ... I'm in the driver's seat,

right? Okay. Am I caning this way like this, and the — which way?

A. Directly at me, yes.

Q. Directly at you like this?

A. Yes sir.

Q. And then what? Then what did you do?

A. As I made the split second decision to move out of the way, I fired three shots at him.

Q. At him.

A. Yes.

Q. All right. ... And when were you firing the shot?

A. First shot was approximately here, was across the front of the car through the frcnt of

the windshield. Then, as I moved out of the way, he passed by.

Q. And then what?

A. Then two shots were rapid fire right after that. One through the side window and cne into

the — ...

Q. All three shots were fired before the car passed you?

A. That's right. ...

Q. So how fast were these shots fired?

A. All three shots were fired within, I would say, a second to a second and a quarter. ... R.R.,v.6,pp.l9-21. "

[End of Record Excerpts from Appx./1-2]

-5-
18. The combined and cumulative force of all the circumstantial evidence rele

vant to Martin's driving directly at Deputy Azwell, makes it irrational to

conclude Martin's momentarily driving towards Deputy Azwell was either intent

ional or knowing. The only way this could be concluded is by ignoring the facts

that Deputy Azwell ran directly in front of Martin's already aimed and moving

car, for two seconds', and then jumped out of the way again, which is what hap

pened in this jury trial and is the reversible error committed in this appeal.

The incar video establishes the 4 second timeline between Azwell's slamming

his car door and shooting at Martin while purportedly backing out of the way

of Martin's car's path. Deputy Azwell's testimony establishes he exited the

driver's side of his patrol car while Martin was approaching from the passenger

side of his patrol car, from there he ran into the space between the rears

of his' car and the resident's cars on the driveway.and testifies right then

that Martin's car was coming directly at him without stating the obvious that

Martin':•,was^Lalready!. aimed ;-,., straight and direct for the only avenue of escape

between the two cars on the driveway, and then he testifies that he shoots

at Martin while backing out of the way. Common sense dictates that this direct

encounter between Azwell and Martin had to take no more than two or two and

a half seconds, as slamming the patrol car door and running clear of the rear

of the patrol car had to take one and a half or two seconds, for four seconds

total. There is no testimony that Martin swerved towards Azwell or in any kind

of direction except for Deputy Azwell's testimony that Martin .was driving

directly towards him and the space between the rears of his car and the resi

dent's cars on the driveway. Hence, Martin, was aiming for that space between

cars BEFORE Deputy Azwell ran into that space, 1mU AFTER Deputy Azwell had

backed out of that space given the testimony and the "Lieca Scan" drawing State

exhibit. It is unreasonable to conclude that Martin, a man with only one eye

(and therefore distorted depth perception), could have a conscious objective

to threaten Deputy Azwell with imminent bodily injury by driving directly toward

him for two seconds, after Deputy Azwell had unforseeably run directly in front

of Martin's car for those two seconds. It is unjust to hold a man with only

one eye criminally liable for Deputy Azwell's unexpectedly running directly

in front of Martin's car's path for merely two seconds, in what appears to

be a calculated decision on Deputy Azwell's part to justify shooting Martin

instead of his tires to stop him from evading arrest. Persons of reasonable

sensitivity would not find that Martin posed an immediate threat of danger

to Deputy Azwell, but that if anyone is responsible for an immediate threat

of danger to him it was Deputy Azwell's act of running directly in front of

Martin's car and then out of the way again. Martin's pre-existing culpable

mental state of recklessness never rose up to an intentional or knowing state

of mind under the totality of these circumstances.

19. During the first 1\ to 2 seconds when Deputy Azwell slammed his car door

and ran to clear the rear end of his patrol car, there is no evidence other

than Azwell's testimony that Martin's driving was direct or straight, .-.ior

Martin was ever not aiming for the space between cars on the driveway and aiming

for Deputy Azwell instead. During this time,, Deputy Azwell was protected by

his patrol car being between Martin and himself, and the fact that Martin was

still trying to evade arrest by driving towards the space between the rears

of the cars parked on the driveway. Appx.1-2[quoting excerpts from R.R.,v.5,

pp.87-88 & R.R., v.6,pp.19-20]. Captain Hadrych: who.-jwas *vhere::but did not .witness.,

the shooting encounter, testified of this-moment, "M. that, time, I realized,'he's

trying.:-to--.gain access-back to the road, back to the pavement." R.R.,v.6,p75. As

such, there is no evidence Martin was aiming for Azwell during the first half

of this encounter.

-6-
20. During the last 2 or 2\ seconds of this encounter after Deputy Azwell

had run clear of the rear of his patrol car, into the space between the rears

of his patrol car and the resident's cars parked on the driveway (misleadingly

testified to by omitting the fact that Martin was already aiming for this

space between cars at that point to continue evading), drew his weapon, made

a visual command to stop and then shot at Martin (the testimony is Azwell

shot at Martin, not at his. car:as erroneously:found;;below,::compare""Appx.3-R.R.

v.6,pr'.20,- w/Appx.39-MemiOpJ7) while::baeking out of; the way, it-is unreasonable or

speculative to,conclude^beyond reasonable doubt that Martin right then in those

2 to 2\ seconds, having only one eye, had formed a conscious^objective to run

over Deputy Azwell, who had unexpectedly run directly in front of Martin's

car momentarily. No person of reasonable sensitivity could find that Martin

posed a threat of immediate danger to.,Deputy Azwell, but rather a person

of reasonable sensitivity would find that Deputy Azwell posed whatever threat

of immediate,.danger-to himself the State. could somehow.be argued to rationally

have resulted in in la threat top the, deputy. Martin was merely reckless.

21. Deputy Azwell's conclusory testimony that Martin made eye contact with

him is obviously speculation, and certainly not beyond a reasonable doubt given

Martin had only one eye and the associated vision depth perception problems.

22. That Martin's drive tire kicked grass up in the air is not a sign of his

intent beyond a reasonable doubt due to "accelerated aggresively", but rather

nothing more thafc* while Martin's car was driving in the two circles on the

lawn's grass G forces onto the drive tire's side was coming from the dirt under

the lawn's grass; hence when Martin drove straight after coming out of the

second circle there was a sudden loss of traction onto the side of the drive

tire naturally resulting in the grass flying up.::, :ir. :...

23. The combined and cumulative force of all the circumstances relevant to

Martin's intent or knowledge to run over Deputy Azwell were not considered

by the Court of Appeals below, which when properly considered fails to prove

beyond a reasonable doubt Martin intentionally or knowingly threatened Deputy

Azwell by -driving directly at him to run him over. During the critical 2 -2\

seconds of time, Martin did nothing other than continue to evade, andc thuJi'. is in

dicative-of ihis: continued recklessness. Therefore, PDR should be granted on this

issue of whether Due Process was violated here by legally insufficient evidence

of Martin's intentionally or knowingly driving directly at Deputy Azwell under

Penal Code §22.02(b)(2). .Tex.R.App.P.66.3(b),(c)

24. Also, the causation .. -•: evidence of driving directly for the space between

cars which both. :Captain Hadryclvand Deputy Azwell testified was for the purpose

of continuing to evade arrest, is legally insufficient BEFORE Deputy Azwell

ran into that space momentarily till! AFTER Deputy Azwell had run out of that

space, because Martin's conduct as such "was clearly not sufficient, by itself"

to result in Deputy Azwell's being threatened with imminent bodily injury,

and the conduct of Deputy Azwell in momentarily running directly into the path

of Martin' s already aimed and straight moving car (pretextoaliy) was clearly suf

ficient, by itself, to result in any arguable threat to Deputy Azwell that

might have occurred here." Williams,235 S.W.3d @ 769; Nugent,749 S.W.2d @ 598;

Penal Code §6.04(a). Nothing Martin could be arguably: proven to have done after.

Azwell had put himself in front of Martin's car for those two seconds, ^suffices

to prove Martin's reckless mental state rose to intentional or knowing beyond

a reasonable doubt. Gooden v. State,750 S.W.2d 857,859,861(Tex.App.- Corpus Christi

1988 no pet)(atepo-hian case MERE CCURT EXAMINED DRIVER'S COSEUCT CNLY AFTER repo-inan "climbed onto

the ifcrcod of the car" then "appellant drove ... with him en the hood" to sustain conviction).

-7-
25. The Beaumont Court of Appeals committed nearly the same error committed

in Ferrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.2001) where the court

of appeals erroneously "focus[sed] solely on the impact from the blow of the

beer bottle - ignoring the fact that because of . ,- that blow McManus fell

back, hit his head on the ground and died." id.(vacating and reinstating -rev'd

conviction under §6.04(a)). Here, the Beaumont Court of Appeals focussed solely

upon Martin driving directly at Deputy Azwell - overlooking the ^incontroverted

fact Deputy^.Azwell/•momentarily ran directly in::front ofMartin' s car, w/Azwell

causing the. dangers-.The deputy caused any arguable result of his-. own/self'. being

"threatened" by Martin's car driving directly at him under §22.02(b)(2). This

is exactly the sort of omission of relevant facts from an appeal opinion that

this Court looks for to grant a PDR. Ferrel,55 S.W.3d @ 690-91; Degrate,712

S.W.2d @ 756. Therefore, rehear&hg and PDRqshould be granted .v. on: whether there

was'" legally insufficient: evidence under.:: .Texas: Penal Code §6.04(a) of Martin's

causing Deputy Azwell to be "threatened" under the State's theory of this case.

Tex.R.App.P.66.3(b),(c); Robbins,717 S.W.2d @ 349(granting appellant a rehearing

on meritorious §6.04(a) jury charge issue, vacating),on remand, rev'g, 717 S.W.2d 717.

2- |THE TRIAL COURT JUDGE VIOLATED APPELLANT'S RIGHTS TO PROCEED WITH CHOSEN COUNSEL|

3. ITHE JUDGE"AND 1st COUNSEL UNCONSTITUTIONALLY ABORTED THE PLEA BARGAINING PROCESS

A. Preservation

Unobjected facts necessary to support the above grounds for relief are

preserved in two pre-trial hearings omitted from the Reporter's Record but

are presented in Appellant's Pro-Se Appendix,pp.10-28(Sept.20,2012 MTW HearinqS

Sept.27,2012 MTS Hearing), and in trial counsel's Motion for New Trial. See,

R.R.,v.l2-Defs Exs.1-4; R.R.,v.13,pp.1-13(trial court's denial of trial counsel

request for preparation of transcripts for motion for new trial purposes, and

assistance of appellate lawyer for same); R.R.,v.l4,pp»l-77(same,pp.l-21; facts

in support of motion,pp.22-71; denial,p.73). Tex.R.App.P.21.2,21.5; see, Clarke

v. State,270 S.W.3d 573,580-81(Tex.Crim.App.2008)(issue preserved as it was

litigated withoufobjection at the hearing, even though motion did not explicitly

raise the issue; "there is nothing in the Rules of Appellate Procedure which

requires that a written motion for new trial precisely identify the contours

of a defendant's ground for granting a new trial."); Austin v. State,748 S.W.2d

546,548(Tex.App.-Beaumont 1988,pet.refd)(hcfdinq if the State fails to contro

vert the motion or present conflicting evidence, the defendant's version of

the facts will be taken as true).

B. Facts

Trial counsel complained on motion for new trial about issues raised in

pre-trial motions to withdraw and to substitute counsel and during the new

trial hearing. C.R.,226-27[incorporating trial counsel's "'ineffectiveness''

ground of his is inartfully expressed" at C.R.220-22]. Martin's f^m'lttj issued

on 4/27/12 a cashier's check for 55,000.00 to Dick DeGuerin for his attorney

fees and expenses, DeGuerin's staff attorney Todd Ward received the funds and

issued a 4/30/12 letter on DeGuerin letterhead informing Martin's family this

"does not include the fee for going to trial". R.R.,v.12,D.Ex.1-3. Mr. Ward said

during his motion to withdraw, that he had gotten the State's plea offer down

from 50 yrs "agg" to 40 yrs "agg", to which the State responded with a 35 yr

"agg" offer, to which Ward responded with "he's already rejected it", followed

by the State's assertion "the [new] offer is gone." Sept.20,2012 MTW Hearing,8

-8-
Trial counsel's complaint was Ward and DeGuerin took $55,000.00 from Martin's

mother and would not go to trial when plea negotiations failed. R.R.,v.l ,pp.26-

27; Appx.l4-Sept.20,2012 MTW Hearing,5. Trial counsel's first appearance in

this case was to defend Martin against Mr. Ward's attempt to withdraw from

representing Martin when plea negotiations failed. Appx.15-16-Sept.20,2012.MTW

Hearing,6-7. The issue was after plea negotiations failed, Mr. Ward demanded

an additional $35,000.00 from Martin to go to trial, but Mr. Martin's family

didn'tf-have any more money to pay. R.R.,v.14,pp.30,37. One problem was that

noone told Martin that Ward's representation was conditional and did not include

going to trial, so when Martin rejected any plea offer, he did so unknowingly

and unintelligently as Martin only discovered there was a "contract" for only

plea negotiations at the motion to withdraw hearing. R.R.,v.14,pp.26-27; and

see, Appx.14-Sept.20,2012 MTW Hearing,5. The most significant problem, though,

was trial judge Lisa Michalk's response to this issue on the record was, "Here's

the deal. You have to pay your attorney. Otherwise/ your attorney is not going

to want to do a good job for you." id. This was trial counsel's main complaint.

C.R.220-21("The said judge ... aggravated the problem by lecturing the defen

dant in effect that these lawyers might not do an enthusiastic job in defending

defendant if they were'nt paid their fee","... the defendant could not have

faith in these lawyers properly representing this defendant especially after

hearing the judge's remarks ...'V'Thus the ineffectiveness and denial of defen

dant's first choice of counsel, caused by state action by way of the District

Judge who presided over the case at the time was apparent."),C.R.226-27(incorpor

ating by reference this argument); R.R.,v.14,p.27 Ins,10-20,p.28 Ins.1-5, p.37

Ins.5-15,p.50 Ins.20-25,p.71 Ins.20-21. Judge Mi-chalk's statement caused Martin

to change his strategy of forcing Ward to represent him in trial, to dismissing

Ward from representing him in trial. See, Appx.23-27-Sept.27 MTS Hearing,4-

8: SEE Martin's testimony in support, R.R.,v.l4,pp.30-33,36 lns3-ll,p.37 Ins.9-

15,p.41 Ins.22-23. The State responded by arguing what a great job Mr. Todd

and Mr. Boyd had done for Martin. R.R.,v.14,44-49,pp.69-70 Ins.4-25,1-8. The

State did not respond to the choice of counsel violation argument, but only

the denied plea bargain argument, id. Before'trial'Judge-Michalk removed herself

as trial judge, replaced by the Hondrabld"Mary Anne Turner'whose'only expressed

concern with this substitution was"--for whether Martin's 'choice ofcounsel:',

going forward was being respected. R.R.,v.4,p.l37~lh.l2:to"p.l38: In.14.

C. Choice of Counsel

The Sixth Amendment confers a right to retain the attorney of one's choice.

Powell v. Alabama,286 U.S.45,53(1932). The right to choose counsel can be viol

ated even if an erroneously substituted counsel is effective because the choice

versus the quality of representation are distinct rights. U.S. v. GonzalezLopez,548 U.S.140,147-48(2006). While this right is not absolute under USCA 16,

giving trial courts the right to balance counsel of choice against the interests

of judicial integrity and efficiency, Wheat v. U.S.,486 U.S.153,162(1988), this

specific right IS absolute under Texas Const.Art.I,§10. Jones v. State,926

S.W.2d 386,390-91 & nn.21,22(Tex.App.-Ft. Worth 1996)[citing, Holloway v. State,

780 S.W.2d 787(Tex.Crim.App.1989) & Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.

App.1989)].

Martin'iSi. family paid Attorney Dick DeGuerin $55,000.00 to defend him in

this case yet only associate counsel Mr. Ward represented Martin during plea

negotiations alone, and when they failed Ward demanded $35,000.00 more to go

to trial (which Martin's family did not have) according to Ward's purported

-9-
contract with the family for only pre-trial negotiations. However, Ward never

told Martin of any "contract" or it's clause requiring more funds to continue

to trial, until the motion to withdraw hearing of September 20,2012. Thus,

up to that point, Martin thought he had "the best representation...a very

prestigious law firm" to take him to trial which was why Martin turned down

40 and. 35 year plea offers. R.R.,v.13pp47-49(State's cross). Martin came to the

motion to withdraw hearing armed with Mr. Boyd to force Mr. Ward to defend

him in trial. However, as the record clearly shows without objections from

the State on the record, trial judge Michalk's statement to Martin that if

he did not pay Ward the $35,000.00 requested, he "is not going to want to do

a good job for you", "pulverized him, it demoralized him", R.R.,v.13,p.27,

into involuntarily waiving his right to proceed with chosen counsel Mr. Ward.

The trial judge's statement intimidated and coerced Martin into dismissing

Mr. Ward as his chosen counsel a week later on September 27,2012. The trial

judge's statement violated Martin's Federal and State right to choice of counsel

requiring reversal of conviction and a new trial.

The Cour^-should:53S*l^ it is a novel and

important issue of Texas and/or Federal constitutional law which this Court

has nc^:squarelyi'addressed but this Court should address to inform the bench and

bar as to the content of the law on the issue. Tex.R.App.P.66.3(b),(c); King,125

S.W.3d @ 520. Here, the Court of Appeals opinion presumably did not address

this issue preserved only in a pro-se motion for rehearing. See Am.Mot.for Reh'g,

W&ttTfiled ,7/17/14,:J:o.2err.uledl-.7./24/a4')/; Sotelo v. State,913 S.W.2d 507,508-

10(Tex.Crim.App.1995)(claim was preserved though only presented on motion for

rehearing as no earlier opportunity to raise claim); Rochelle,791 S.W.2d @ 124.

D- Involuntary and Unknowing Rejection of 35 Year Plea Offer

Martin's being kept uninformed about Mr. Ward's fee contract's, existence

and terms for pre-trial negotiations only, up <to the September 20,2012 motion

to withdraw hearing, deprived him of effective assistance of counsel during

the pleamegotiations, prejudiced: Martin by his rejecting 40 and 35 year

plea offers, coercing' •'himngtb: ^proceed to jury] trial with Mr. Boyd which led

to. three: life) it sbntoehces:i.::.. Martin was pulverized and demoralized through

the September 20,2012 hearing to begin with, after finding out Mr. Ward had

concealed the contract's existence and terms from him, realizing his family

did not have Ward's requested additional $35,000.00 to continue representation

through trial,, but still tried to force Ward to represent him in trial using

attorney Boyd against Ward in the hearing and the trial judge's order to Ward.

Judge Michalk's comment to Martin that "You have to pay your attorney. Otherwise

your attorney is not going to want to do a good job for you" was the straw

that broke Martin's will to proceed with Mr. Ward, renderring his choice of

counsel in Mr. Ward unknowingly and involuntarily waived with the September

27,2012 motion to substitute Mr. Boyd for Mr. Ward. Compare, Powell,287 U.S. @

53,57-59("[A] defendant should be afforded a fair opportunity to secure counsel

of his own choice",period from arraignment to trial is "perhaps the most criti

cal period of the proceedings"), with, Beets v. Scott,65 F3d 1258,1274(5th,

Cir,1995)(en banc)(counsel fee contract dispute hindering his performance auth

orizes relief for ineffective assistance of counsel). The Supreme Court case

of Lafler v. Cooper,No.10-209,566 U.S. (2012) was decided during Martin's

trial, which held where counsel's ineffectiveness led to an offer's rejection,

and where the prejudice alleged is having to stand trial, a defendant must

show that but for counsel's ineffectiveness, there is a reasonable probablity

-10-
that the plea offer would have been presented to the court, that the court

would have accepted it's terms and that the conviction or sentence or both,

under the offer's terms would have been less severe than under the actual judge

ment and sentence imposed. Id.,Slip Op.,3-11. It appears that the present record

supports an ineffective assistance of counsel holding and order to the State

to reoffer the plea agreement of 35 years. undeB_:Lafler, .DESPITE the: judge's

comment to pay Mr. Ward or suffer Mr. Ward not wanting to do a good job for

him in trial. Lafler,Slip Op. @ 14-16. Adding the trial judge's comments into

the mix would seem to cement Martin's claim of an unknowing and involuntary

rejection of the 35 year plea offer .toonwicition reversalscand.:.a hew:Ltrial...:£-.-.•

The court .should .GRANT REHEARING &:PDR:on this.issue based^onithe reasoning

and law presented infra at Part C hereinabove. Tex.R.App.P.66.3(b),(c). See,

Am.Mot.for Reh'g,4-5,15-16(filed 7/17/14, "overruled" 7/24/14).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Martin respectfully requests

the Court GRANT rehearing and set the case for submission. Tex.R.App.P.79.4.

CERTIFICATE OF SERVICE

I certify and affirm placing a true and correct copy of the foregoing

Motion for Rehearing into the prison mailbox on 3/12/15, well in advance of

the Court's current extended deadline of 3/17/15, and addressed to: Abel Acosta,

Clerk, Court of Criminal Appeals, PO Box 12308, Austin, Tx.78711-2308; State

Prosecuting Attorney, Price Daniel Sr..Bldg., 209 W.14th St., Rm.202, Austin,

Tx. ,78711; Attorney Jason Larman, Ass't DA, Montgomery County District Attor

ney's Office, 207 W. Phillips, 2nd Floor, Conroe, Tx.77301.

Respectfully Submitted,

Peter James Martin, #1846003, pro-se,

Stiles Unit, 3060 FM 3514

Beaumont, Tx.77705

-11-
NO.14-1050-PD

ATTACHMENTS IN SUPPORT OF APPELLANT'S PRO-SE MOTION FOR

REHEARING FROM DENIAL OF PETITION FOR DISCRETIONARY REVIEW

1. State's Ex.215-"Lieca Scan" drawing 1

2. Texas Monthly May 2014 article,pgs.1-13 2-1 to 2-13

3. Receipts for original petition and appendix copying costs 3

4. TDCJ-CID Notification to Come By Mail Room 11-4-14 4

5. TDCJ Correspondence/Contraband Denial Form 11-3-14/11-5-14 5

6. Complain of 11-5-14 and response about unauthorized confiscation 6

7. TDCJ Director's Review Committee decision to uphold the rejection

of all legal documents on another offenderof 12-9-14 7

8. TDCJ Step 1 Grievance, refusing relief, 12-4-14 8

9. TDCJ Step 2 Grievance, refusing relief 01-6-15 9

10. Motion for Extension of Time, granted 11-12-14 10-1 to 10-4

11. TCCA Notice Denying "Motion to Order State to Return

Confiscated Documents to Appellant", 12-19-14 11

12. TCCA Notice receiving and filing petition for discretionary review

and Supplemental Brief and Motion for Leave to File Supp.Brief 12

13. TCCA Notice Extending Time to File PDR Until 01-2-15, dated 11-12-14 13

14. TCCA Notice denying motion to exceed the page limit, 1-23-15 14

15. TCCA Notice refusing petition for discretionary review, 2-4-15 15

Appellant Martins hereby declares under penalty of perjury that the above

attachments are true and correct copies of the originals, in the record or

already in possession of the State, based on his personal knowledge.

EXECUTED ON 3-12-15 VTCPRC §132.001 et seq.

Peter Jaaies Martin, #1846003, pro-se
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Who Will Watchthe Watchers? | TexasMonthly

5223 THE MAKING OF

GONE WITH THE WIND "MSSB,G,i

Welcome to Texas Monthly

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Who Will Watch the Watchers?

IN AN INCREASINGLY MILITARIZED ZONE ALONG THE RIO GRANDE, THERE ARE MORE

BORDERPATROL AGENTS ON THE GROUND THAN EVER BEFORE, AND MORE VIOLENT

CLASHES BETWEEN AGENTS AND MEXICAN CITIZENS. WHICH RAISES A

FUNDAMENTAL CONCERN: WHO WILL WATCH THE WATCHERS?

by NATE BLAKESLEE MAY 2014

A frame from the video of Guillermo Arevalo Pedraza's shooting, on September 3,2012.

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Thevideo begins with an establishing shot ofsorts: AMexican flag dangles from a flimsy

pole—a fishing rod, maybe—that somebody has stuck in the dirt inthe foreground. Beyond

weseetheback ofa man ina yellow shirt standing onthe gently sloping bank of a river

that isjust catching the last ofthe late-afternoon light. He isstanding perfectly still, watching a boat

perhaps 150 feet away from him, near the steeps carrizO-covered Opposite bank. It's an eighteen-foot

aluminum airboat with a low deck arid an enormous motorized fan on the rear that emits a deafening

roar. The camera zooms inontheboat, which ispointed upstream, holding itsposition against the

considerable current. The light is not great, and neither isthe focus, but we can justmake out the

white shirtsleeves of the driver, and perhaps the outline of another man seated on a smallbench in the

front ofthe boat, along with the familiar green stripe ofthe U.S. Border Patrol on the boat's silver

profile.

We hearan unseen woman'svoice—the filmmaker—rising above the drone. "He istaking aim,

right? Atthem?" she says in Spanish. There is a muttered reply from nearby. The camera pans left,

andwe arenowlooking outfrom behind thewindshield of a parked truck=our videographer has

beensitting in the front seatall along, filming through the openwindow on thepassenger side. Now

we can see people ontheriverbank having a barbecue: Amiddle-aged man in a yellow baseball cap

and long white shorts isleaning idly against a white Buick sedan. A skinny young man ina muscle T

squats atthe man's feet, while another stands nearby. Awoman sits on the hood ofthe car, looking

placidly down at the river. A girl, maybe ten, in an orange tank top ducks into one ofthe Buick's rear

doors, reaching forsomething, while another, slightly younger, walks away from the car,swinging

her arms back like she is gettingreadyto skip, or perhapsexecutea standing broadjump.

Thereare dragonflies in the air, and everyone is moving in that lazy way you do on a summer

evening, after the food and the beer are mostly gone but the lingeringsun keeps people fromgoing

home. It would be a pleasant scene but for the steady roar ofthe airboat. The man in the yellow hat,

who has only a few more minutes to live, turns to greet someone who hasjust walked up. 'Ta

quitala," we hear the filmmaker's companion say. "Turn it Off."

When the camera comes back on, everything is different. Instead ofthe steady drone, the airboat's

motor is revving wildly. Suddenly our filmmaker leaps out ofthe truck and runs toward the water, the

camera pointed down at the gravel beach and bouncing wildly with each step. It sounds like we are at

a NASCAR race now, the boat has gotten so loud, yet the camera stays pointed down, maddeningly

averted from whatever commotion is drawing us to the river. Just as we pass a white plastic picnic

table with a blue cooler next to it, we hear the shots: seven ofthem in quick succession, each one

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sounding on the camera's cheap microphone like the ka-chunk ofaheavy-duty stapler. The gunfire

makes ourfilmmaker stop, finally, and bring the camera up before her.

We see the aftermath. Down by the river there are a dozen or more people screaming and crying. The

man inthe yellow ball cap islying on his hack about ten feet from the water. Awoman stoops over

him, wailing. "That's against the law! That's against the law!" someone can be heard screaming in

English. The boat circles once and seems to stop at the far bank momentarily, before speeding away

upstream.

The man in the video was a 37-year-old bricklayer named Guillermo Arevalo Pedraza. He was shot in

Nuevo Laredo on September 3, 2012, during a visit tothe river with his wife, Nora Lam Gallegos;

their two daughters, Mariana, who was nine, and Priscilla, who was ten; and several friends. The

shootingtook place in a popularpark calledEl Patinadero, where families come on weekends to

swim, fish, and relax atthe barbecue pits and picnic tables. Arevalo's wife and daughters allhad latesummer birthdays, and Arevalo had cooked a carne asada as a kind of collective celebration. It was a

Monday night, and the park was not crowded, though several other families, some with children,

were picnicking nearby. The Border Patrol airboat appeared after Arevalo and his family had eaten

and theparty was winding down. Interviews conducted bythe Tamaulipas state police and

depositions collected from witnesses byLam'sAmerican attorney alltellthesame story about what

happened next, during the missing portion ofthe video. Shortly after the boat appeared, ayoung man

jumped out ofthe carrizo on the Texas side ofthe river, plunged into the water, and began swimming

towardthe park Before he could make it, though, the airboat circled him in midstream, while an

officerin a black face mask tried unsuccessfully to grab him,

A smallcrowdsoon formed by the side of the river, as peoplein the park became aware of the chase.

They beganshouting at the agents to stop circling the swimmer*who by now had beenin the water

fighting both the current and the boat's heavy wake for some time. The beach was strewed with small

rocks, and one witness reported that one or two men—though not Arevalo—threw rocks at the boat

but failed to connect, becausethe boat was too far away. (Five other witnessesreportedthat no rocks

were thrown.) Eventually the swimmer managed to get past the boat. Just as he was about to reach

the safety ofMexican soil, the masked officer in the frontofthe boat suddenlydropped to one knee

and fired his assaultrifle at the crowd, hittingArevalo in the thigh and the chest. "They killedhim!

They killed him!" hiswife screamed in Spanish. Hisyounger daughter, Mariana, hadbeen standing

next to him when he was shot, and she was in all likelihood the only person who reached him before

he died. She hugged him as he lay on his back, bleeding. She was so covered with blood herself, her

mother said later, that she looked like she too had been shot, as she easily could have been.

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Among thewitnesses at theparkthatevening wasanAmerican named Veronica Martinez, who

worked as a nurse inLaredo but kept a home inNuevo Laredo aswell. Knowing she was an

American, friends urged herto cross the bridge immediately and report what she hadseen. There Was

no doubt inher mind, Martinez said later, that what she had witnessed was a completely unprovoked

killing. Her boyfriend drove her tothe nearest bridge, where she bypassed the line ofpedestrians

waiting to cross over and demanded to speak to someone in charge. She was interviewed by aBorder

Patrol supervisor and an FBI agent in a small room on the American side ofthe bridge. The next day,

theBorder Patrol issued a statement announcing onlythat agents in an airboat had been attacked with

rocks and had used their weapons to defend themselves. There was no mention ofthe fatality orthe

victim, andthe agents werenot named. Newspapers andTV stations in bothLaredo andNuevo

Laredo reported onthe shooting on September 6, andArevalo's widow toldreporters thattheBorder

Patrol hadkilled her husband, a claim thatthe agency would not verify.

The incident would likely have remained inthe shadows, except that thenext day thevideo described

above^=which hadbeen made by an anonymous bystander^founditsway into the hands of

producers atanews organization called RN Noticias, in Nuevo Laredo. Soon after, the station posted

it onYouTube, and everybody inLaredo and Nuevo Laredo could see the tragedy, orat least its

aftermath, in living color. Television news all over Mexico picked up the story, and the video was

shown again and again.

InMexico, alleged Border Patrol malfeasance is a popular genre onYouTube, and there are plenty of

videos thatpurport to showhuman rights violations. In this case, however, the shocking abruptness

Ofthe violence and the immediacy of the grief on display gavethe videoa singularimpact. A few

days after it was posted, a Mexican senatordenouncedthe shootingon the floor ofthe Mexican

Congress and calledfor a full investigation. On September 11,Mexican presidentFelipeCalderott

brought up the incident during a visit to the offices ofthe Wall Street Journal, in New York, where

he sat down with the editorialboard for a wide-ranging interview. "This fatherwas not trying to cross

the border, he was trying to pass a good day with his kids," Calderon told the board, adding that this

was only one ofseveral recent shootings ofMexicans by U.S. agents. The Journalwas careful not to

condemn these shootings but did offer an interesting observation about how such events are

perceived in the United States. Everybody had heard ofBrian Terry, the Border Patrol agent whose

2010 murder hadbecome entangled inthe botched "FastandFurious" gun-running sting, theJournal

opined. But who has heard ofGuillermo Arevalo Pedraza?

Over a year and a half later, the answer to that question, at least in this country, is still "almost

nobody." The Border Patrol has released no official report on the incident, not even so much as the

name ofthe shooter. Nor has there been any official announcementby federal investigators.

Contactedfor this stoiy in late March, an FBI spokesperson would say only that the agency had

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completed its investigation and turned its findings over to the Civil Rights Division ofthe

Department ofJustice. In recent months, however, the Border Patrol's use offorce has come under

heightened scrutiny both in Congress and in the national media, easting a new light on Arevalo's

shooting and Others like it, Border security, meanwhile, has once again become a buzzword in

Washington, asa new immigration reform hill wends its way through Congress. As some in

Washington call for more agents in the field as aprerequisite to negotiation on any comprehensive

reform measure, Arevalo's case poses a troubling question: While agents watch the border, who is

watching them?

Border patrol shootings, especially those that involve agents shooting across theborder into Mexico,

used to be quite rare. Such incidents have become more common, however. Since the beginning of

2005, Customs and Border Protection officers, who work atports ofentry, and Border Patrol agents,

who police the vast areas between ports, have killed at least 42 people. Some ofthese shootings were

clearly justified, but in many instances, asin Arevalo's case, accounts offered by agents and

eyewitnesses differ. The best known ofthese incidents was the June 2010 shooting ofa fifteen-yearold Mexican boy under a railroad trestle connecting El Paso and Juarez. Sergio Adrian Hernandez

Giiereca was among a group of boys and men who had crossed themostly dry, concrete-covered bed

ofthe Rio Grande, only tobe surprised by aBorder Patrol agent on abicycle. Acellphone video shot

from the sidewalk onthe nearby international bridge captured what happened next. In the video, the

agentmanages to collarone of the fleeing youngmen, and then, holding his captive downwithone

hand, he points his pistol across the river and fires. A figure falls dead, shot in the head.

The agent, JesusMesaJr., would latertell investigators he wassurrounded by rock throwers and fired

in self-defense. Yetthe video, which has now beenviewed more than 1.6million times on YouTube,

clearly shows thatMesa wasnotsurrounded. Andwhile itseems to show more than oneperson

throwing rocks at the agent, Hernandez himself, whowas hiding nearOne Ofthe trestle's pilings, was

not amongthem. Federalinvestigators declinedto prosecute Mesa for the shooting, finding that he

had followed agency policy.

Far fewer people have viewed the video ofArevalo's killing, though both incidents raise the same

essential questions about how lethal force is being used along the border, especially with respectto

incidentsof allegedrock-throwing attacks on agents. Border Patrol agents and CBP officers both

work for an agency calledCustoms and BorderProtection, whichis a division of the Department of

HomelandSecurity. OfficialCBP policy allows agents to use lethal force when they feel their lives

are in danger, and whilethe agency for years has declined to makepublicthe details of this policy,

seniorofficials have longmaintained that the agency considers rock-throwing attacks (or "rockings,"

as agents refer to the incidents) to be potentially life-threatening situations. Rockings can be

dangerous, T.J. Bonner, the former president ofthe National Border Patrol Council, the union that

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represents agents, told Homeland Security Today magazine in 2011, not just because ofthe damage a

thrown rock could cause but also because ofwhat could happen after ah agent was incapacitated by a

rock. "What's to stop one ofthese people," he said, "from then taking the agent's firearm and

executing him?"

Statistically speaking, Border Patrol agents are much less likely to be physically assaulted than

municipal police officers in an average city. Killings ofagents are rare, though not unheard of; three

agents have been killed by assailants since 2004. There is no question that rockings have become

common, however, due in part to the sheer number ofagents that are now on the border. In the post9/1 1era, arenewed focus on border security led to adoubling ofthe force (there are now roughly

21,000 Border Patrol agents, along with nearly 22,000 CBP officers working the ports ofentry).

Smuggling of bothpeopleand contraband has become more difficultas a resultof the massive

increase in personnel, and rock-throwing has become afavored means ofdistracting agents trying to

make arrests. This is especially true in urban areas, where smugglers and agents are ubiquitous.

Sometimes the rock throwers are lookouts, hired to buy their employers afew extra seconds to get

back into Mexico. Other times they are simply bystanders who express their displeasure with la

migra withwhatever means theycan find at hand.

Noagent has ever been killed bya rock, and injuries are infrequent, usually because ofthedistance

between agents and their assailants. The vast majority ofthese attacks do not result in agents' firing

their weapons. Still, it's clear that agents are using their weapons with some regularity. According to

numbers compiled by the inspector general's office ofthe Department ofHomeland Security, agents

were attacked with rocks 185 times in 2012, themost recent yearfor which figures are available, and

responded with firearms in22 ofthose instances. Inayear-long investigation ofCBP shootings

published inDecember, theArizona Republic found 8 instances inwhich agents had killed rock

throwers since 2010. Using agency records, the Republic also tabulated 160 incidents during that

period inwhich agents chose touse less-lethal weapons attheir disposal, including a type ofmilitarygradepaintball gun that can shootmore than ten pepperspray-filled balls persecond. There wereno

reported injuries—among agents or assailants—in those instances, and agents consistently reported

that these weapons were quite effective indeterring rock throwers. Yet agents are not required to

carry them, even in urban areas, where most rockings occur.

Under pressure from members ofCongress concerned about therash ofrecent shootings, in 2012

CBP officials quietly invited a group of law enforcement experts to review the agency's use-offorce

policy. Thegroup, known as the Police Executive Research Forum, wasgivenaccess to several

years' worth ofinternalCBP use-of-force incidentreports. The CBP did not release the results of that

review to the public, butsome of itsrecommendations wereleaked. TheAssociated Press reported

last November thatamong other things, PERF advised against using lethal force onrock throwers. A

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better policy would be to move out ofrange or use less-lethal weapons, PERF concluded. In response

to questions from the Associated Press, however, Border Patrol chiefMichael Fisher announced that

his Officers would continue to employ deadly force against rock throwers at their own discretion,

despite the experts' recommendation. This prompted a round ofstories with unfortunate headlines

like "Border Patrol Will Continue Killing People Who Throw Rocks." The agency seemed oblivious

tothe public relations implications, orperhaps impervious to them.

That changed in late February ofthis year, when the Los Angeles Times acquired an unredacted

version ofthe PERF report. According to the Times, the report determined that "some border agents

stood in front ofmoving vehicles as apretext to open fire and that agents could have moved away

from rock throwers instead ofshooting at them." The report also suggested that some agents fired

their weapons at rock throwers out offrustration, not asense ofendangerment. Finally, itcited a

"lack ofdiligence" on the part ofCBP officials assigned to investigate agent=involved shootings.

Asked about the report, Jeh Johnson, Barack Obama's new Secretary ofHomeland Security, replied

thatthe agency wasrethinking itsrecalcitrant response to PERF's recommendations.

Then, in early March, ChiefFisher announced official changes to the Border Patrol's use-of-force

policy. Agents would now be prohibited from stepping in front ofmoving cars orshooting atvehicles

fleeing from agents and would be instructed to move away from rock throwers ortake cover if

possible. This was widely described as a "reversal" ofprevious policy, but itremains far from clear

what practical effect if will have on the ground. After all, the existing use-of-force policy, which CBP

finally made public around the same time, also directed agents to use lethal force only when they felt

themselves to be in imminent danger. Indeed, officials withtheNational Border Patrol Council

immediately downplayed the significance of the arfflomceffient, which Chief Fisherhimself had

referred to notas a new policy butas a clarification of existing policy.

"Wedon't viewit as an outright restriction on agents' useof deadly force," Shawn Moran, the vice

president of the agents' union, told theArizona Republic on the same dayFisher made his

announcement. Moran characterized it as "a reminder to agents to seekalternatives." In otherwords,

agents will still exercise their own discretion in deciding whento shoot at rock throwers. And the

newdirectives have yet to be incorporated intoan official update of the use-of-force handbook, a

processthat istypically the result of a protracted negotiation with the union,which relies on the

handbook indefending agents subject to disciplinary actions. "We would fight any restrictions onthe

ability of agents to use force to defend themselves," Moran told theRepublic.

Whether ornotagents will beheld accountable for the decisions they make remains unclear aswell.

Neither ChiefFisher nor Secretary Johnson has publicly responded to one ofthe key findings inthe

PERF report, concerning CBP's "lack ofdiligence" when it comes to internal investigations. The

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Arizona Republic's investigation examined the 42 lethal shootings since 2005, and in not oneofthose

cases could the paper determine that any agent involved had ever been disciplined by any agency,

charged criminally, orfound civilly liable. The silence surrounding the investigation ofGuillermo

Arevalo Pedraza's death is not the exception, it's the rule.

"Affairs on the border cannot be judged by standards that hold elsewhere," Walter Prescott Webb

wrote in The Texas Rangers, his 1935 treatise on the state's elite police force, which was for all

practical purposes the frontier's nineteenth-century version ofthe Border Patrol. Almost eighty years

later, the modern Border Patrol still seems tooperate in a kind ofmoral and ontological gray area,

one that extends to even the most basic question ofjustwhat aBorder Patrol agent is. An agent isnot

technically a soldier, though casual observers could be forgiven for thinking otherwise. Notonly

have theaccoutrements ofwar become increasingly common ontheborder, astheCBP uses drones

and Black Hawk helicopters to patrol themore remote areas, buttherhetoric ofwaris pervasive in

the media and on Capitol Hill. In 2010 Oliver North took his Fox News War Stories team to the

border to report on what he called the "Third Front" (the other two being Iraq and Afghanistan). The

National Geographic Channel reality show Border Wars, which follows Border Patrol agents inthe

field in the tradition of Cops, is nowin its eighth season. Meanwhile, the violent conflict in recent

years between warring cartels in northern Mexicohas givenrise to the "spillover violence" meme,

which has beenubiquitous in policy circles andmedia reports since 2008. Security hawks in

Congress argue that the Border Patrol—only recently doubled in size—needs reinforcements to

protectus fromthis phenomenon, despite the fact that the Southwest borderremains among the safest

places to live in the United States. (El_ Paso, despite its proximity to Juarez, one ofthe most

dangerous placesin the westernhemisphere, is the safest large city in America,)

Policymakers and senior officials at the agency seem torn about Whether theBorder Patrol is an army

or an enormous police force. The seeds ofthis identify confusion were planted shortlyafter 9/11,

when the BorderPatrol was subsumedunder the newly createdDepartment of HomelandSecurity

and recast as one ofmany regiments in the nation's war on terrorism. The Border Patrol's new

mission was said to be aligned with that ofthe Army or the Navy or the NSA: to protect us from

foreign invaders bent on our destruction. But while having 21,000 agents on or near the border no

doubt has dissuaded some foreign elements from entering the country overland, fighting terror is not

principally what those agents do. The Border Patrol arrested 364,000 people in 2012. Not a single

one was an international terrorist. The vast majority were migrants in search ofjobs. An agent spends

most ofhis or her time chasing would-be nannies, construction workers, and landscapers. Even the

drug mules, los mochileros, are not generally armed or dangerous.

The difference between a soldier and a police officer is more than a semantic one, and the Border

Patrol's identitycrisis has genuine consequences. War and police work are fundamentally dissimilar,

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explains Christopher Wilson, a border-security expertat the Woodrow WilsonInternational Center

for Scholars, a Washington, D.C,think tank. "When you're told your mission is national security,

and the people you're interacting with are not citizens—meaning they're not the people you're

accountable to in a democratic structure—that doesreplicate to a certainextentthe situation the

military faces," he said. '^Nonetheless, they are law enforcement. And what that means isyou use the

minimal force needed to do your job."

Police forces are also more transparent andreceptive to criticism from the communitiesthey serve

than armies. The community theBorder Patrol operates within may be anunusual one, inthatit

straddles aninternational boundary, but it isa community nonetheless. The ties—family, cultural,

and commercial—that bind twinned border towns like Laredo and Nuevo Laredo are hundreds of

years old. Yet the metaphor ofwar has, perhaps unintentionally, helped give the CBP a certain

measure ofinsulation from that community. Extracting information from the agency about a shooting

is notoriously difficult, especially when compared with a typical urban police department. If an

officer kills someone in Dallas, for example, the name ofthe officer involved istypically released the

same day, and residents ofDallas can expect tosee a statement describing what happened from the

chiefofpolice inthe paper oronthe evening news. Internal investigations follow a standard

operating procedure thatisreasonably transparent. The result isthatwhile community members may

not always agree with decisions made aboutthe legitimacy of police shootings, the process at least

offers some reassurance that officers are accountable to the community they serve.

The Border Patrol, by contrast, almost never releases thenames of agents involved in shootings or

the resultsof internal investigations. Typically, such details become public only if a civil suit is filed

and a judge grants the attorney for a victim's family access to the relevant information. Information

about shootingsis very hard for the media to acquire as well. In its investigation, the Arizona

Republic noted that it took nearly a year forthe agency to release the use-of-force reports the paper

requested, and they were frequently heavily redacted or incomplete.

Members ofCongress, even those whose duties include oversight ofCBP, have the same difficulties

when it comes to getting information from the agency, according to El Paso congressman Beto

O'Rourke, a Democrat who sits on the Homeland Security Committee. "The top officials cloak

themselves in the national security mantle," he said. "We can't get any more informationthan

anybody else about specific incidents."

With such an opaque internal disciplinary process, victims' families often find that their only

recourse isthrough the courts. But this is frequently less than satisfying too. A Corpus Christitrial

lawyer named Bob Hilliard represents the families ofboth Sergio Hernandez and Guillenno Arevalo.

"Hernandez was not throwing rocks. And I don't think Arevalo was either," he said. "But what if

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they were? Would aLaredo police officer shoot somebody dead for throwing a rock athim from a

hundred feet away?"

Hilliard's wrongful-death suit on behalfOfHernandez was dismissed by an El PasO judge in August

2011 on the groundsthat the victim was not killed in the United States and therefore not entitledto

reliefunder the U.S. Constitution. "IfI understand that correctly, it means any agent can do anything

hewants toanybody aslong asthe victim isinMexico and the agent is onU.S. soil," Hilliard said.

"Does that sound right to you?" Hilliard has appealed the ruling. His suit on behalfofArevalo has yet

to be filed.

Whether criminal charges will be brought against Arevalo's shooter isstill an open question. For

federal prosecutors, when itcomes to filing charges against Border Patrol agents, there is more to

consider than just the facts ofthe case. The appointment ofU.S. attorneys, after all, isoverseen by

the president, and, rightly orwrongly, they are seen as his agents, which means such prosecutions

inevitably become entangled inthe seemingly endless debate over immigration reform. Consider the

notorious case ofBorder Patrol agents Ignacio Ramos and Jos<§ Compean, who were tried and

convicted in 2006 for shooting a fleeing, unarmed smuggler. The smuggler survived and escaped to

Mexico, where his account ofthe shooting led to the agents' eventual prosecution. Investigators

discovered that the agents, knowing they had committed a crime, covered up the episode by

destroying evidence and lying about the incident. Nevertheless, the reaction totheir sentencing,

especially on conservative talkradio, was sovehement thatthen-president George W. Bush was

persuaded to commute their sentences as oneof hislast acts in office, Howcould we begoing after

agents, it was argued, when officials in Washington haddone so little to stem the flow ofillegal

immigrants and narcotics?

It did hot help, Ofcourse, that the Victim in that casewas a smuggler, a factthat is not lost on federal

officials in Hernandez's case either. Three days after the teenager's death, authorities leakedhis

arrest record to the press. At a time when we still did not know the name ofthe shooter, we knew that

Hernandez was apatero, a smuggler who helps people cross the border. He had been arrested for

allegedly helpingpeople illegallycross more than once, most recently in 2009. (He was never

prosecuted, probably because he was a minor.) Leaking Hernandez's record was a violation of

federal law—juvenile records must be kept private—butthe agency was facing a public relations

disaster. When askedaboutHernandez's record on FoxNews, Hilliard replied with a question of his

own: "Andpunishment for [smuggling] is fortheBorder Patrol agent to bejudge,jury, and

executioner there on the border?"

No smears have been forthcoming about Arevalo, whose name does not appear in CBP's database of

offenders. Still, Hilliard said he is not optimistic about a criminal prosecution. Border security isstill

http://www.texasmonthly.com/story/who^wilUwatch-watchers?fulloaee=1 11/9/2014

Ho
Who Will Watch the Watchers? |Texas Monthly pag@ n 0f 14

atop issue, especially for Republican primary voters, which means itremains apolitical football. He

thinks U.S. attorneys learned alesson from the Ramos and COmpean prosecution. "It'sjust not worth

the hailstorm that will follow," he said.

To date, neither the House nor the Senate Homeland Security committees have scheduled hearings on

CBP's use-of-force policies, though incoming CBP commissioner Gil Kerlikowske, a former Seattle

police chief, was asked about the issue at his confirmation hearing in January. He promised more

openness ifconfirmed, noting that he had never worked for apolice department that did not make its

use-of-force policies public. O'Rourke, the El Paso congressman, has teamed up with aconservative

New Mexico Republican named Steve Pearce on aproposal to create anew border oversight

commission, to bring some transparency tothe agency's activities. The bill would also create a new

ombudsman within the Department ofHomeland Security, to bring an independent set ofeyes to bear

on allegations ofwrongdoing, not unlike the approach used by the U.S. military to address the recent

sexual abuse scandals. O'Rourke has found some tea part}' members to be surprisingly receptive to

his reform message. "They don't like the idea ofthe border as akind ofConstitution-free zone, where

civil liberties and constitutional protections don't apply," he said.

Nora LamGallegos lives in a neighborhood on the northern outskirts ofNuevo Laredo called Lomas

del Rio, oneof theneatly gridded developments ofmodest concrete andcinder-block homes that

have sprung up in the twenty years since the passage ofNAFTA made this city a boomtown. On the

February morning I visited, itwas bitterly cold and overcast, and nobody was out on the street. I

recognized the cheerful green exterior ofLam's house from earlier reports on Mexican TV news,

though ithad lost much ofits charm inthe intervening months. Lam told me she had been able to

find Only sporadic employment since her husband's death, including some part-time houseeleamng. It

wasnot enough to replace herhusband's income. The girls were not at home, butthe hallmarks of

female adolescence were hard to miss. On ashelfin the living room was ahomemade Mother's Day

card, along with some Hello Kitty wonderama. Her daughters hadn't been the same since seeing thenfather killed, she said. "They were never rebellious before," she told me in Spanish, "but now they

don'twant to listen." The Tamaulipas state government paid for the kids to see a psychologist, which

was helping, she said. The park where her husband was shot—part ofa larger complex that includes a

zoo, a skate park, and a swimming pool—had long been one oftheir favorite places to visit. "They

are always asking me to go back,"she said, tearing up. "I take them, but not down to the river. I can't

doit."

Lam, who is28, would have celebrated her eleventh anniversary with Arevalo this year. They met at

the wedding ofa friend, and he made her laugh. He was a constant presence inthe neighborhood, she

said, playing soccer with the local kids or chatting atthe fence with the neighbors. But mostly he

lived for his daughters. After his death, Arevalo's friends paid to have a corrido written about him,

W

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Who Will Watch the Watchers? |Texas Monthly Page n of 14

and the accompanying YouTube video is filled with still photos ofArevalo with Priscilla and

Mariana, the girls mugging for the camera with atreat in one hand and an arm around their dad, who

sports agoatee and aseemingly endless Variety ofmajor league baseball caps. Many ofthem were

taken atElPatihadero, not far from the spot On the bank where he died.

Lam was interviewed by American officials in Laredo two days after the shooting, but she has not

heard from anyone about the investigation in along time. On the morning Ivisited her, the Laredo

Morning Times carried astory about the sentencing ofaMexican gunman for the murder ofBorder

Patrol agent Brian Terry. Terry's killer, apparently abandit who preyed on backcountry drug

couriers, got athirty-year sentence. Ishowed the clipping to Lam. "They made that Mexican pay for

what he did," she said. "And ifmy husband had been the shooter, instead ofthe one who got shot,

you can be sure the Mexican government would have given him to the Americans, and he would

have been punished." But it didn't happen that way. To this day, she still doesn't even know the

name ofher husband's assailant. "How come he is free and enjoying life," she asked, "when there is

no happiness in mine?"

After Ivisited Lam, Iwent to the park where her husband died. The shocking images I'd seen in the

video were hard tosquare with the scene itself. Istood in the parking lot ofthe zoo on the hill above

the park and looked down at the acre oftrees, their trunks painted white to ward off bugs, and the

river beyond. Aquarter mile up the opposite bank, in Laredo, sat a nice new H-E-B, its cobalt-blueframed entrances beckoning cheerfully, its parking lot about aquarter full. Between the blacktop

surrounding the store and the river below was amaze ofbare-earth paths trickling down through

mesquite and thick brush, beckoning the mochileros andpateros totake their chances, A white

Border Patrol SUV Was parked atastrategic point halfway down the bank, looking over the river and

the park on the far side. It's a favorite lookout point; ifyou study the satellite image ofthe park right

now on Google Maps, you'll see the same SUV, or one just like it. It's a hell ofaplace to get shot in

the chest with an automatic weapon, between an H-E-B and a zoo.

I drove down to the river, where I wasjoined by Josue Ledezma, a close friend of Arevalo'swho was

at the barbecue the day ofthe shooting. Ledezma is also abricklayer by trade, though he is ten years

younger than Arevalo, lean and handsome. He grew up in Lomas del Rio, and he and Memo, as

Arevalo's friends called him, had been close since Ledezma was a boy. Inthe video, he isone ofthe

young menwho canbe seennearArevalo as he leans against the white Buick, in the calm before the

storm.

Like everyone else in the city, Ledezma seemed to have been caught offguard by the freakishly cold

weather. He was wearing pajama bottoms and a long-sleeved T-shirt, shivering as he walked me

through the scene ofthe shooting. With his hands tucked snugly under his armpits, he showed me

http://www.texasmonthly.com/story/who^wilUwatch^watchers?fi!l1r>aae=1 11/o/om a
Who Will Watch the Watchers? | TexasMonthlv

J' Page 13 of 14

where he was standing when his friend was shot and how the bullets kicked up the gravel all around

h« feet It was amiracle, he said, that only one person had been shot He had dived into the brush

when the shots were fired, and when he came Out, he saw AreValo lying On the ground It was

Ledezma who drove Arevalo to the hospital in his dying friend's own Buick, along with his wife and

daughters.

Ledezma said he had been contacted as recently as last fall about the shooting by American

investigators and had told his story once again. After so much time had passed, however he wasn't

optimistic that justice would be coming for his old friend. On the bank not far from where Arevalo

died, there is alarge square of concrete, the remnant of an old bridge or pipeline foundation, partially submerged in the river. In the days after his death, Arevalo's wife had spray.painted asimple

memorial there for her husband. It had read "Descansa enpaz, El Memo" Ledezma looked for it but

he couldn't find it. It was definitely the same spot, but the words weren't there anymore.

"Se desvanecieron," he finally said. "They faded away."

ij\j

Tags: POLITICS, BORDER PATROL, BORDER VIOLENCE, ROCK THROWINGS, GUILLERMO AReVA

PKDRAZA, CUSTOMS AND BORDER PROTECTION, LAREDO, NUEVO LAREDO

MORE TEXAS MONTHLY

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(2) WEEKS of the notification date listed above MUntSV'"e' T* 77342-0099. The appeal must reach the DRC WITHIN TWO [£

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DISPOSITION: Offender must check the desired disposition at the time the denial is presented. '" * '^

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*^^i**^j'^*J^^
..-/-

NOVEMBSa* 5th,2014

TO: HOOiES OUT MAILROOM SirS&VISO», ABEt AOOSfA CLSRK OP TEXAS CXiim OF

CRIHIHW, APPSftLS, BEAU&fetf WNXH COURT O? .TOBMfi

l*. PAUL JAHS3 KOSWIAN, #1039181, HUGHES U*J12. umS3X(2iSD

set t_M_B8os_o aanscwnos op legal axxmaa mm cm o? sab o.s. san,

0_ur Hughes unit Hailroom Supervisor,

->-r^ °L°r^?flt J*wei*«r 3»*'2DM your ofilea- received f*©» Kay Whitaiftt, of

aeliery to «c. Vour ofiice confiscated thie legal taaterial because 8JUi 1mA *c_*ata on «ntl_r oCtaier" is what the 1-153 stated. The oSeTorS^r^ £&"*•** *•**», ?BCJ f 1846003 for whom 1 p« i^l ii£Sj5y« of Jfcteceay tuthonsuw m -to HI* a** 1^1 Awiawtt. or {fti»] behSE

i 52* f_£ ^i0n -f1®^ fe* ^iis]' «w»*icfcl«_ in Horseway County cauae

5 W?.^T^ leQ- *?_»nt» the MilMon mtflacatod at*-to be ctiua m He. ei*etin's pending direct antral r«g«x&ta&. that e^cific trial ' court nunocr, peiwins in the ftra Court ©£ Criminal AfclwdruMfler their

in Kontyooery County causa maebsr 12-03-02604-CR. ¥our ©trice's *x«fiecs,Uonu

and frc» the courta ane private pxsena, will yrtvenfc {fe. Hartln fro* £iH«, SL^1 doou"?»t» °* *•«**_«: 20,2014-deadline ft* filing In hia cs_Z

ffi« IS 5l°* ^"f1!** his 7^**' cowe *«K*i*-«3 riShta to have aZ file oocumants on hia behalf in his crfalnal finale, aa. the &w_ent Court

of a^ab «nd th© T*m® Court o£ Crloiroa JW<*lfi hae been 'alKwinu o_ with

e*pn_a permission to 6\S ^inco early in 2014 oh the recoxti.

Pleaee return the obnUcatad l*ifouL dwaieenttf- to ne as soon as possible. , «itffrmit.tv«ly, allow Ma. Kay Whitsitt to personally eooe to AS to yic* % ^i confi^cateo. naterxala and I will u*ko otHer orranvf«manto to «etV.

mrtm's legal ooceaanta filed for him. .

ltwfcfe you foi- your aaslatoAca and co-operation in this matter.

cc; jbel^oata, cieQ, JLttiaX^ c«roi tone aatlay, Clerh, Tssas 02urt of Criminal l&paaia ^)C^ uinth Court of Appeals f<sr 5-asaa, P.O. So«1230S; Capitol Station, UA , 1001 ^rl street

Jtostln, Tosae 78712-2303

UA . . 1001 ?esrl Street

1/ I I ~ Beeuasofit, te_» 77701

^J^A^^U:
Texas Department of Criminal Justice

Correctional Institutions Division

DIRECTOR'S REVIEW COMMITTEE

DECISION FORM

Offender: KOUMJIAN, Paul TDCJ-ID#: 1039181

Unit: AH 042 Date: 12/09/14

3^

Tho Plirj-H'nr'c R_*\/io\a/ PnpnrviiHaQ /r\pO\ hoc; ronHorpH „ Ho-^icion rr^r^^rHfrtm your anpool

of the Unit rejection of all legal documents on another offender received in contradiction

with BP-03.91, Uniform Offender Correspondence Rules.

The return address indicates that the rejected item(s) was/were mailed to you from:

Kay Whitsitt

7260 CR 4710

Larue, Tx 75770

It is the decision of the DRC to uphold the Unit rejection of the above mentioned item(s).

You will have 60 days from the above date to make disposition of the denied item unless

security mandates there be no disposition.

DRC/

copy: Unit Mailroom

Kay Whitsitt

file
Texas Department of Criminal Justice

CTTTO t OFFENDER

»3 1 rLi 1 GRIEVANCE FORM

Offender Name: Paul James Koumjian TDCJ # 1039181

Unit: &K Housing Assignment: 3 C 25 B

Unit where incident occurred: AH

?fi Lfrfwrru cw>

OFFICE USE ONLY

Grievance#: QO/f) <3t//f )tf]

Date Received: / r /W-/^/

Date Due: I(7^'M^" JH

Grievance Code: •~^CJ I

Investigator ID #:

Extension Date: ^-P)U~M

~w?

jp64 2Ptt

Date Retd to Offendi

You musttry to resolve yourproblem with a staffmember before you submit a formal complaint Theonly exception iswhen

appealing the results of a disciplinary hearing.

Whodidyoutalkto (name, title)? Ma. Hauqht AH mailrooai supervisor; (byphone) When? About, 11/1Q/14-; „„ :, . 0 Ms. naught told Ms. Whitsitt she:cannot: send me ANYTHING, FROM'-ANOTHER. What was their response? .IWMATS.S ^MDIfciG CRIMNAL-^^^^^tticill^ , - — ~^—

Whataction wastaken? Unknown - appeal of contraband decision; pending

State your grievance inthe space provided. Please state who, what, when, where and the disciplinary case number ifappropriate

Qn 11/04/14/ at the Hughes Unit mailroom/ I was told Ms. Hauqht : the Supervisor

had declared legal

~was—being—declared

violation neither of which were cited' in the contraband confiscation papers, since

"having legal documents—from—criminal—cases—other than one's own is NOT a TDCJ rule

violation) Second,, these legal documents were sent to me from Attorney at. Law Mr. Walter

W-lBdydl.-Jt-./ State Bar No.02782000, 202 Travis, Suite 208, Houston, Texas 77002, direct

fium his legal assistant, Kay whitsiLL, 7260 cr 4710, Larue, Texas 75770 (903)675-334b.

According to Ms. Whitsitt, it seems Ms. Haught only was familiar with Ms.

material's sent to me throught the United States postal Service

"cunLiaband"—because it. •"beluuyed" Lu anuLIier uffender. I putsued

the appeal process at that time. First, this legal material belongs to ME, not "another

offender" regardless of,what^Ms,., jiaughtaft READ IN THE CORRESPONDENCE/ LEGAL DOCUMENTS.

(Please note that Leddi't-ig-: Ihiiiate'cor^espbrideiice is prohibited, without, pile* written

approval of a warden;,;wMch was not, doheThere', and then only for a crime or TDCJ rule

being a "booseller",

assisLanL. Third,—Mrv

Whitsitt

but not familiar \Vitlvthe fact that she is Attorney Boyd's legal

Boyd,—Ms-:—Whitsitt Pis-:—Whitsitt arid—I am all under a deadline ul December

2/2014 which has been ___—impossible 'by this imprior legal documents confiscation

event. The Texas Court of Criminal Appeals has granted us a time extension because

"of—Litis specific Improper—confiscation event.—we would appreciate it a great deal.,

if Ms. Haught—Of—the AH mailroom would please return 1-he ronfiseated legal dnmm^ni-* to me

simple human error

ASAP in order to prevent any further .complication of a straghtforward issue of

Thank you. :—••

1-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM (OVER)

T

Appendix F
N(>\\"A OFFICE USE ONLY

Grievance#:^2___^2_^L

3

Texas Department of Criminal Justice

STEP 2 OFFENDER

GRIEVANCE FORM

OffenderName: Paul James Koumjian TDCJ # 1039181

Unit: ..^...... Housing Assignment: 3 c 25 B

Unit where incident occurred: m

UGI Reed Date

HQ Reed Date:

Date Due:

Grievance Code:

Investigator ID#:

Extension Date:

You must attach the completed Step 1 Grievance that has been signed by the Warden foryour Step 2 appeal to be

accepted. You may not appeal toStep 2 with a Step 1 that has been returned unprocessed.

Give_reason for appeal (Be Specific). / am dissatisfied with the response atStep 1 because...

The Step 1 response did not respond to my claims, of confiscating legal materials

sent to me in the mail. The response did not even address the issue of the confiscation

event and it's improper basis. Note that there is no allegation of a crime or a rule

violation being committed here. The Step 1 response's claim that "the mailroom cannot

~be used as a third party" is senseless. The mailroom acts as a party to delivery of the

mail daily. Ianaunot communicating with another inmate at all. I am only receiving legal

materials from a civilian in the outside world which is a legitimate exercise of my First

Amendment rights to Free Speech. So exactly how is the mailroom being used as a third

party, and how is that unstated basis for confiscation of my legal materials .constitute a

crime of? TDCJ rule violations, which is the only reason mailroom staff can, read correspondence. r7... 7 7 : "" —— Without an accusation of criminal conduct (there is none here) or of a TDCJ

rule violation (it is not a rule violations to receive legal material from a legitimate

citizen on the outside, regardless of the subject matter of the contents), there was no • ——= . J^i

reason for taking my legal materials. Please return them. These legal materials coKEiscated without Due Process by being read for content and determined to violate some{unstated

TDCJ rule, without being authorized by a TDCJ warden or his designeee to be read, cost

at least*196.00 3 to reproduce..for me. Should I be deprived of filing them at the time

I!11 be allowed by the Texas Court of Criminal Appeals to file" them, please advise me who

wants to pay that bill? ASSistant Warden Armstrong? Mailroom supervisor Haught? Or perhaps

this Step 2 reviewer? Please immediately return these confiscated legal materials for

being confiscatedbased on no evidence of a crime or TDCJ rule violations being commit-t-ed

1-128 Front (Revised 11-2010) so p

YOUR SIGNATUREIIS REQUIRED ON BAtKOF<THIS FORM (OVER)

Appendix G

?
H_ i-z~ir~

4c

PD-1050-14 l»~I* *T

PETER JAMES MARTIN §

v. | ^ appeal from the 221st Judicial | Distract Court of Montgomery County,

STATE OP TEXAS ! Texas, Cause No..l2-03-O2ffik|ftg|t tr-f

§

~!__w_S_S__fw^

Petitioner Martin has been using the leaal assic^n^ «* ^belACQSte, Clark 3 Kounrjian, #1039181, since during m«Z * J*BSlst?nce of inmate Pau7 s-w" the implicit approval of the coSt of^_J_? T ?! ap?eals ""**!«*, with to Carol Anne Harley, clerk? to^llow k^V f~/tts,l-4<P*t'» letter notice allowing the filim of soJ^?T Kou^lan to. file motions for him, clerks Petitioner Maltin execute a^swfTM "SZZ P-fU3nt tG re^est>- Thereafter limited power of attornev L+ZTM- aff*davit gating Paul James Koumjian my b^alt^^cJ^^^^S^ TMt0 ?"? any leg?I *«u_»ti on Cause Number 12^3^04*^ TMSe^^^^ COUnty Power of Attornev) On 2- ^ZZ *ct-f23eRr23'2014 notarized, sworn, Limited

ified w Ss cSic^^c_rf^h4/aonPaui jaroes Koumjian was **-

Martin ___r~^E^23*S5 in thelSt^t case S AtfSTHS •? "^T °"ender"< *•«•' «*• Form" offender «_v) Xffl 2! Att;7(I~153 Correspondenee/Contraband Denial work don^ay^ ** «*" ~sult of copying

£cSuref^ 2T5'^S_S

J^tbetereKperrencethat Martin's pleadings and exhibits will be r£rS

December 2nd, 284 See m.sSitten NoS to MafXoS* f*3"?8 ** °f Court and the beaumont Court of AppSlJ Mailroom Supervxsor, this

to thflourJ^n^^irundL1^?^ ^^ °ther irHnateS le^al ******* internet at »hr?n^S?; Under TDCJ Correspondence Rules, published on the

Sf»af SffeS^^ dence Rules) rS^fSf^r Handbook' Chapter 3(Uniform Offender Correspon- S^ ,nd 4(°«ender Access to the Courts, Counsel and Public Officials Rules), inmates may correspond with as many persons as he chooses and "with

other prisoners about legal matters", id., CorrR 39 lis ?ST? n!5 J?

shall ^_^2_, inspection for_sss contraband_be deemed z»£^°~z££ to require the SL_nS^_S____

NOV 07 201if

James

s

-_-•

M
•_iIda_°__«rSh tELa.Si£oo,-,rss to Courts *—•- ~J «tt_

sr-s _a_*HsLr?^r?--*s gs_tk»

_vs_-. iSPr -?___2-j__g__S!sk

id., UAC RulS? _f^B'i' Wf^TM^^ and ... may not te read." assist saeh other «*S. l^ai^ttS^^ASes^axt^B f^ •£

SH3_SS__f??^—£_-_£

officSTunS^SSSccSnl^T t0 C°UrtS ^^ ace ^^ "P°" Prison

WSOHcitations and suta.hist.oWted). additionally, _ Sto to Si

____£^s is <sss^_^-»sr__jr-_r -««J-S! __ tte^STof"S^'iTM »-?-396,412-1^1974), the s£r_( Co_ ~^" 2S.XT S^__i%__* «

to tS^ou^S^rulSf^18 /iolated ^eir own correspondence and/or access to the courts rules, by reading inmate's personal legal materials, in order

£_^£TM ^ CaSe WaS bein9 "tigatrt in court which is also off limits under these rules. Without this Due process violation, prison officials coulS

not have determinej one inmate was getting mailed anothefiSte's !e^al Seg ments, and presumably would have been delievered without ISterlerSa w??h

^^T^T-, m ^^ hereinabove is overbroad by including the "violation of TDCJ. Rules or Regulations" when compared to Procunier's and Serret-2 formulations of the rule. Then, there to NO TDCJ RULE^SmbitSg O^ Satp T^lli^n T^'f ^L miL TO TOE OOUR^^hereTM ffis^Iy wr"it£en Se in S°r'S W1Sh iiSt °f TleS' but certainly not committed to any ^i!! J^V Correspondence Rules or the Uniform Acccess to Courts

w£ ^J?TM?1'8. i"tended t0 * filed ^ continuation of this pro-se inmate effort at vindication of constitutional rights in the instant case? obviously do not contain escape plans, do not describe ongoing criminS acUv- x^c involve blackmail, as required for TDCJ offtei^ufffoSSSSE LE^L D0OT®OTS destined for this Court's pending docket! The Texas courts, md

what will not be filed m their, jurisdictions. Under this rule regime, TDCJ could confiscate and- never return intended court filings and SS^evaS

aroS S viS^^^^ confiscatory events becuase the inmate coSed

a TDCJ rule violations, although none has been cited or committed here'

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*C-3
protecf tne Courtof CrtT f\ *"? *" ^-""dinary motion necessary to chflughes uSt Sent?"2 tt^rLr^^r ^.^ inStant Case^f- to return the confistatS Sal d_22* W* °nit ^i1"**" Supervisor intended for Peter jSefMarlin'f£££ _S^ V^-^ KOUmjian and proceedina This r«,,rf iZ Vrrtin s ir-tant petition for discretionary review

^_5__.-"*_ "Such othe^wStras^maf2 "^ Criminal laW *t1~S' «** diction or enforce its juLeSnts^ VJ^ZT"? f f9^ itS juris~ Ann.CC.P.Art.4.04,11- Sta^f^i » a Z S *nn-°--t.Art.V/§5; Vernon's 1985). -criminal law ftters* ?nc^ ^uS'f8 iff'?* 893(Te*-<*in».App. forcement of statutes L* S- ? dJ^utes which arise over the en-

_%_^_K?«sS__=ra

i_^-__s!_sss__= to go untied, the Petitlonef^m ha^e"£ SLS_*_T_ fj??*'-

1-153 form Sa^ 7 ^ specific appeal process noted on the attached

_S5_r_SS?_«S_Sa'=a=

~, availabie where court of appeal erron^ orS^^rXl'co^rt

ofti^^ijr^lSyfc^T*tefr-thi8 C°Urt• €RAOT ^°ther extension SITM**. ? f petitlon for discretionary review documents in this Court from the present date of December 2,2014 to thirty additional days So_ then until January 1,2014. Petitioner has obtained t^/prevlou^ motioS foTexten' sions of time, based on his pro-se status, im^ituS^^vfSLfS- dition, financial poverty and being forced to specifically send docu^nrs

£_1i_? #S39i8ith^ th? maU t0 m' ****-*«: LorSffor^^auf SiS In £ wj??lftt; ** ,PrOCeSS le9al docu^nts, arguments and oftii i«_Lt2_iii p dlrec^aP?eal case which takes an inordinate amount

?he Stirloner^ l^al ^SOn °ff*c*als had «*. previously interfered with the Petitioner s legal documents being mailed in and out of the prison system £L PT*8S1u9 J* **' .Kouro3ian -*il this incident occurred on EvemLr 3rd? o? itf Se S eL.Unlt. Mailre°m °ffiGialS confiscated all the photocopies of *|f the PDR documents to be collated by Mr. Koumjian and then mailed to 2!th°Zd «?^*>-"-10S0-" "-ein. Petitioner is prSeeSS T^loS S*S ^L _J 5u *"? .P"1^0563 of harassment or delay of the Court or the

SS of afSfit of T^T Wil1 Sh°W ^ C°Urt that he is A^LLY INnS CENT of at least one of the charges, and was only convicted by way of suppres sed evidence, false testimony, failure to correct perjury when it aSSSd and other fundamental structural error exposing fmisSrri^e of teS

«an IffSS^E*!? affir®aw«_ on May 21,2014, W3rehearing denied T13^- *• COU^ on July°f 24,2014, -PPeal^isiriS en banc con sideration overruled on September 4th,2014. "*>*ha, en banc con-

-3-

[{>-*>
PRAYER

£

i-ecer aS"S?iP? 3ames martin s legal documentsss?=-r__ to Paul James Koumjian _^«skS forthwith.

CERTIFICATE OF SERVICE

<„*•„ * certifv and *ffirm Placing a true and correct copy of this instrument

As^t da priT "^J*0* thiS day NoVeinber 5'2015 «*-«2eS to SLS^SS? Ass tD.A. m charge of appeal,207 W. Phillips St. Conroe, Tx.77301?

Respectfully Submitted

Peter James Martin, #1846003,

Hughes Unit, Rt.2, Box 4400

Gatesville, Texas 76597

-V-
OFFICIAL^NOTICE j: ROM COURT OF CR[MINAL APPEALS OF TI-'V *.« TM- ECO

:afitoi, sta:mois, Austin. -;exas 78711'

12/1802014

MARTIN PETER JJ flES Tr, Ot. No. 12,I)3.02604..CR rU.W

Ch this ctay,.*.* Court has derued the Appellant's Pro Se -Motion To Ore f

To Return Confiscate.:! Documents to App.-i»flan;t:"

Ab«IAcosh

PETER JAMES MARTIN

MICHAEL UNIT - TDC# 1846003

2&:4 FM 2051.

TENNESSEE COLONY, "X 75886

PD-i[
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILE COPY

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

12/31/2014 • x . t COA No. 09-13-00180-CR

MARTIN, PETER JAMES Tr. Ct.- NoCl 2-03-02604-CR PD-1050-14

The appellant's pro se petition for discretionary review has this day been received

and filed. ^ s<r '- 7/

Abel Acosta, Clerk

PETER JAMES MARTIN

MICHAEL UNIT - TDC# 1846003

2664 FM 2054

TENNESSEE COLONY, TX 75886
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILECOPY

P.O. BOX 12308, CAPITOL STATION. AUSTIN. TEXAS 78711

i*fES^!L,TM U'. V - r COA Case Wo.0*t3-0(W80.CR B«AlfnNr PETER JAMES Tr.Ct.Not1243-026G4-CR -PB=tfi5frt*

On this day, this Court has granted the Appellant's Pro Se motion for anextension

offimem which to file the Petition for Discretionary Review. The time to fife the

petition has been extended to Friday," January 02 2015 NO FURTHER

EXTENSIONS VWLL BE ENTERTAiNED. NOTE: Petition" For Discretionary Review mustbe filed with The CourtofCriminatAppeals:

Abel Acosta, Cleric

9TH COURT OF APPEALS CLERK

OAROL ANNE HAREEY

tOOf PEARL SUITE 330

BEAUMONT, TX 77701

* DELIVERED VIAE-MAIt*

\3
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILECOPY

P.O. BOX 12308.CAPITOLSTATION. AUSTIN,TEXAS78711

1/23/2015 / .;' ? * COA No. 09-13-00180-CR

MARTIN, PETER JAMES Tr.Ct No. 12-03-02604-CR PD-1050-14

On this day the Appellants Pro Se moticav to exceed the page limit has been

denied. \ -**""

Abel Acosta, Clerk

PETER JAMES MARTIN

MICHAEL UNIT - TDC# 1846003

2664 FM 2054

TENNESSEE COLONY, TX 75886

W
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILECOpY

P.O. BOX 12308, CAPITOL STATION. AUSTIN, TEXAS 78711

2/4720*5 „ , ' • ; , ^ COANd.OS-ia-OOtSO-CR

MARTJNr PETER JAMES Tr. Cf. Wo32-03.02604-CR PD-11B50-t4

Orr this day, the Appellants Pro Se petition for discretionary review has been

refused. -tr „ ."- /» ,

Abel Acosta, Clerk

9m COURT OF APPEALS CLERK

CAROL ANNE HARLEY

1001 PEARL SUITE 330

BEAUMONT, TX 77701

* DELIVERED VIA E-MAIL *

is-