# 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 CRIMINALAPPEALS 

## MAR 16 2015 Abel Acosta, Clerk

Respectfully Submitted/

PETER JAMES MARTIN, #1846003/pro-se STILES UNIT/ 3060 FM 3514 BEAUMONT/ TEXAS 77705TABLE 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

-l-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

-li-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.

-v-

### 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.

-vi-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 evid

### dence 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

-1-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 standardof 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.

... I knew 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.
... Howwere 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 I got 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. I THE 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 of counsel:', 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 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 ofGuillermo Arevalo Pedraza's shooting, on September 3,2012. 

### a,i

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### The video begins with an establishing shot ofsorts: AMexican flag dangles from aflimsy pole—afishing rod, maybe—that somebody has stuck in the dirtinthe foreground. Beyond weseetheback ofaman inayellow shirt standing onthegently sloping bank of ariver 

### that isjustcatching the lastofthe late-afternoon light. He isstandingperfectly still, watching aboat perhaps 150 feet away from him, nearthe steeps carrizO-covered Opposite bank. It's an eighteen-foot 

### aluminum airboat with alow deckarid an enormous motorized fan onthe rearthat emits adeafening roar. The camera zooms inontheboat, which ispointed upstream, holding itsposition againstthe considerable current. The light isnot great, and neither isthe focus, butwe canjustmake outthe whiteshirtsleeves of thedriver, andperhaps theoutline ofanother 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 hearanunseen woman'svoice—the filmmaker—rising above thedrone. "He istaking aim, 

### right? Atthem?" she says inSpanish. There is amutteredreply from nearby. The camerapans left, andwe arenowlooking outfrom behind thewindshield of aparked truck=our videographerhas beensitting in thefront seatall along, filming through the openwindow on thepassenger side. Now 

### wecan see people ontheriverbank having abarbecue: Amiddle-aged man in ayellow baseball cap 

### and long white shorts isleaning idly against awhite Buick sedan. A skinny young man inamuscle T 

### squats atthe man's feet, while another stands nearby. Awoman sits onthe hood ofthe car, looking placidly down at the river. A girl, maybe ten, in an orange tank top ducks into oneofthe 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 hasjustwalked 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-chunkofaheavy-duty stapler. The gunfire makes ourfilmmaker stop, finally, and bring thecameraupbefore her.


### We see the aftermath. Downby the riverthere are adozen ormore people screaming and crying. The man inthe yellow ball cap islying onhis hack aboutten feet from the water. Awoman stoops over 

### him, wailing. "That's againstthe law! That's againstthe law!" someone can be heard screaming in English. The boatcircles once and seems to stop atthe far bankmomentarily, before speeding away upstream.
The man in the videowas a 37-year-oldbricklayer named Guillermo Arevalo Pedraza. He was shot in 

### Nuevo Laredo on September 3, 2012, during avisittothe riverwith his wife, NoraLam Gallegos; their twodaughters, Mariana, who was nine, andPriscilla, who was ten; andseveral friends. The shootingtook place in a popularpark calledEl Patinadero, where families come onweekends 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 ofcollective celebration. It was a 

### Monday night, and the park was not crowded, though several otherfamilies, some with children, 

### were picnicking nearby. The BorderPatrol airboat appeared afterArevalo and his family had eaten and theparty was winding down. Interviews conducted bytheTamaulipas state police and 

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

### happened next, during the missing portion ofthe video. Shortly afterthe boat appeared, ayoung man jumped out ofthe carrizo on the Texas side ofthe river, plunged into the water, andbegan swimming towardthepark Before he could make it, though, the airboat circled him inmidstream, while an officerin a black face mask triedunsuccessfully to grabhim,


### A smallcrowdsoonformed by the side of the river, as peoplein the parkbecame aware of the chase. Theybeganshouting atthe agents to stopcircling the swimmer*whobynow 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 safetyofMexican soil, the maskedofficer in the frontofthe boat suddenlydropped to one knee 

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

### They killed him!" hiswife screamed inSpanish. 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 VeronicaMartinez, who 

### worked asanurse inLaredo butkept ahome inNuevo Laredo aswell. Knowing she was an American, friends urged hertocross the bridge immediately and reportwhat she hadseen. There Was 

### no doubt inhermind, Martinez said later, thatwhat she had witnessed was acompletely unprovoked killing. Herboyfriend drove hertothe nearestbridge, where she bypassedthe line of pedestrians 

### waiting to cross overand demanded to speakto someone in charge. She was interviewedby aBorder 

### Patrol supervisor and an FBI agent in asmall room on the American side ofthe bridge. The next day, theBorder Patrol issued a statement announcing onlythatagents in anairboat hadbeen attacked with 

### rocks andhad usedtheirweapons to defend themselves. There was no mention ofthe fatality orthe victim, andtheagents werenotnamed. Newspapers andTV stations in bothLaredo andNuevo 

### Laredo reported ontheshooting onSeptember 6, andArevalo's widow toldreporters thattheBorder Patrol hadkilled herhusband, a claim thattheagency would notverify.


### The incident would likely have remained intheshadows, except that thenext day thevideo described above^=which hadbeen made by ananonymous bystander^founditsway into thehands of 

### producers atanews organization calledRNNoticias, inNuevo Laredo. Soon after, the stationposted it onYouTube, and everybody inLaredo and Nuevo Laredo could see the tragedy, oratleast its 

### aftermath, in living color. Televisionnews all overMexico picked up the story, and the video was shown again and again.


### InMexico, alleged BorderPatrol malfeasance is apopulargenre onYouTube, and there are plenty of videos thatpurport to showhuman rights violations. In thiscase, however, the shocking abruptness Of the violence and the immediacy of the grief on display gavethe videoa singularimpact. A few days after it was posted, a Mexican senatordenouncedthe shootingon the floorofthe Mexican 

### Congress and calledfor a fullinvestigation. On September 11,Mexican presidentFelipeCalderott broughtup the incidentduring a visit to the offices ofthe Wall StreetJournal, 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 murderhadbecome entangled inthebotched "FastandFurious" gun-running sting, theJournal opined. But who has heard ofGuillermo Arevalo Pedraza? Over a year and a halflater, 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 overtothe Civil Rights Division ofthe DepartmentofJustice. In recent months, however, the BorderPatrol's use offorce has come under 

### heightened scrutiny both in Congress and in the national media, easting anew lightonArevalo's shooting and Others like it, Border security, meanwhile, has once again become abuzzword in Washington, asanew 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 atroubling question: While agents watch the border, who is watching them?


### Borderpatrol 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 BorderProtection officers, who work atports ofentry, and BorderPatrol agents, 

### who police the vast areas betweenports, have killed at least42 people. Some ofthese shootings were clearlyjustified, but in many instances, asin Arevalo's case, accounts offered by agents and 

### eyewitnesses differ. The bestknown ofthese incidents was the June 2010 shooting ofafifteen-yearoldMexican boy under arailroadtrestle connecting El Paso and Juarez. Sergio Adrian Hernandez Giiereca was among agroup ofboys and men who had crossed themostly dry, concrete-covered bed 

### of the Rio Grande, only tobe surprised by aBorderPatrol agent on abicycle. Acellphone video shot from thesidewalk onthenearby international bridge captured what happened next. In thevideo, the agentmanages to collarone of the fleeing youngmen, and then,holding his captive downwithone hand, he points his pistol across the river andfires. A figure falls dead, shot in the head.


### Theagent, JesusMesaJr., would latertell investigators hewas surrounded by rockthrowers andfired 

### in self-defense. Yetthevideo, which has now beenviewed more than 1.6million times onYouTube, 

### clearly shows thatMesa wasnotsurrounded. Andwhile it seems to show more than oneperson throwing rocks attheagent, Hernandez himself, whowashiding nearOne Ofthe trestle'spilings, 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 essentialquestions about how lethal force is being used along the border, especially with respectto incidentsofallegedrock-throwing attacks on agents. Border Patrol agents and CBP officers both 

### work for an agency calledCustoms and BorderProtection, whichis a division of theDepartment 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 thispolicy, 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, toldHomelandSecurity Todaymagazine in 2011, notjustbecause of the damage a 

## thrownrockcouldcause butalso because ofwhatcouldhappen afterah agentwas incapacitatedby a rock. "What's to stop one ofthesepeople," he said, "fromthentaking the agent's firearm and executing him?" 

### Statistically speaking, BorderPatrol agents are much less likely to bephysically assaultedthan municipal police officers in an average city. Killings ofagents are rare, thoughnotunheard of; three agents have been killed by assailants since 2004. There is no question thatrockings have become 

### common, however, due inpartto the sheernumberof agents thatare now onthe border. Inthepost9/1 1era, arenewed focus onborder security led to adoubling of the force (there are nowroughly 

## 21,000 BorderPatrol agents, alongwithnearly 22,000 CBP officers working theports of entry). Smuggling of bothpeopleandcontraband hasbecome more difficultas a resultof themassive 

### increase in personnel, androck-throwing has become afavored means of distracting agents tryingto make arrests. This is especially true in urban areas, where smugglers and agents are ubiquitous. 

### Sometimes the rockthrowers are lookouts, hiredto buytheiremployers afew extra seconds to get backinto Mexico. Othertimes they are simply bystanders who express their displeasure with la migra withwhatever means theycanfind athand.


### Noagent has everbeen killed byarock, and injuries are infrequent, usually because ofthedistance 

### between agents and their assailants. The vastmajority of these attacks do notresult in agents' firing their weapons. Still, it'sclearthat agents are using theirweapons with some regularity. According to numbers compiledby the inspectorgeneral's office ofthe Department ofHomeland Security, agents were attacked with rocks 185 times in2012, themostrecent yearfor which figures areavailable, and 

### responded with firearms in22 ofthose instances. Inayear-long investigation ofCBP shootings published inDecember, theArizonaRepublic 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 atype ofmilitarygradepaintball gun that can shootmore than ten pepperspray-filled balls per second. There wereno 

### reported injuries—among agents orassailants—in those instances, and agents consistently reported 

### thatthese weapons were quite effective indeterring rockthrowers. Yet agents are notrequired to carry them, even in urban areas, where most rockings occur.


### Underpressure from members ofCongress concerned about therash ofrecent shootings, in2012 CBP officials quietly invited a group oflaw enforcement experts toreview theagency's use-offorce policy. Thegroup, known as the Police Executive Research Forum, wasgivenaccess to several years' worthofinternalCBPuse-of-force incidentreports. The CBP did not release the results of that 

### review to thepublic, butsome of itsrecommendations wereleaked. TheAssociated Press reported 

### lastNovemberthatamong other things, PERF advised against using lethal force onrockthrowers. A

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## betterpolicy wouldbeto move outof range oruse less-lethal weapons, PERF concluded. Inresponse toquestions from the Associated Press, however, BorderPatrol chief Michael Fisher announced that 

## his Officerswould continue to employ deadly force againstrockthrowers attheirown discretion, despite the experts' recommendation. This prompted around ofstories with unfortunate headlines 

### like "BorderPatrol Will Continue Killing People Who Throw Rocks." The agency seemed oblivious tothe public relations implications, orperhaps impervious tothem.


### Thatchanged in late February ofthis year, when the LosAngeles Times acquired an unredacted 

## version of the PERF report. According to the Times, the reportdeterminedthat "someborderagents stood in front of movingvehicles as apretextto open fire and that agents couldhave moved away 

## from rockthrowers instead ofshooting atthem." Thereport also suggestedthat some agents fired theirweapons atrockthrowers outoffrustration, not asense of endangerment. Finally, itcited a 

### "lackof diligence" onthe part of CBP officials assignedto investigate agent=involved shootings. Asked aboutthe report, Jeh Johnson, BarackObama's new Secretary of Homeland Security, replied thattheagency wasrethinking itsrecalcitrant response to PERF's recommendations. 

### Then, in early March, ChiefFisherannounced official changes to the BorderPatrol's use-of-force policy. Agents wouldnow be prohibited from stepping in front ofmoving cars orshooting atvehicles fleeing from agents and would beinstructed tomove away from rock throwers ortake cover if 

### possible. This was widely described as a "reversal" ofprevious policy, but itremains far from clear 

### whatpractical effect ifwill have on the ground. Afterall, the existing use-of-force policy, which CBP 

### finally made public aroundthe same time, also directed agents to use lethal force only whenthey felt themselves to be inimminent danger. Indeed, officials withtheNational Border Patrol Council immediately downplayed the significance of the arfflomceffient, which Chief Fisherhimselfhad 

### referred to notas anew policy butas aclarification ofexisting policy.
"Wedon't viewit as anoutrightrestriction onagents' useofdeadly force," Shawn Moran, thevice 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 stillexercise their owndiscretion indeciding whento shoot at rockthrowers. And the 

### newdirectives have yet to beincorporated intoan official update of theuse-of-force handbook, a processthat is typically the resultofa protractednegotiation with the union,which relies on the 

### handbook indefending agents subject todisciplinary actions. "We would fight any restrictions onthe ability ofagents 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 toone ofthe key findings inthe PERF report, concerning CBP's "lackofdiligence" when itcomes tointernal investigations. The 

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Arizona Republic's investigation examined the 42lethal shootings since 2005, and innotoneofthose 

### cases could the paperdetermine thatany agentinvolved had ever been disciplined by any agency, charged criminally, orfound civilly liable. The silence surrounding the investigation ofGuillermo ArevaloPedraza's death is not the exception, it's the rule. "Affairs on the border cannotbe 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 BorderPatrol. Almost eighty years 

### later, the modern Border Patrol still seems tooperate in akind ofmoral and ontological gray area, one that extends toeven the most basic question ofjustwhat aBorderPatrol agent is. An agent isnot technically a soldier, though casual observers could beforgiven for thinking otherwise. Notonly have theaccoutrements ofwar become increasingly common ontheborder, astheCBP uses drones and Black Hawkhelicopters topatrol themore remote areas, buttherhetoric ofwarispervasive in the media and on Capitol Hill. In 2010 Oliver North took his Fox News War Stories team to the 

### bordertoreport on what he called the "Third Front" (the othertwo being Iraq and Afghanistan). The 

### National Geographic Channel reality showBorder Wars, which follows BorderPatrol agents inthe field in thetradition ofCops, is nowin its eighth season. Meanwhile, theviolent conflict inrecent yearsbetween warring cartels innorthern Mexicohas givenrise to the "spillover violence" meme, 

### which has beenubiquitous inpolicy 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 places in the westernhemisphere, is the safest large city inAmerica,) 

### Policymakers andsenior officials attheagency seem tornabout Whether theBorder Patrol is anarmy or an enormous policeforce. The seedsofthis identify confusion were planted shortlyafter9/11, 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 of jobs. 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 genuineconsequences. War and police work are fundamentally dissimilar,

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explains Christopher Wilson, aborder-security expertat theWoodrow WilsonInternational Center 

### for Scholars, aWashington, D.C,thinktank. "Whenyou're toldyourmission is national security, and the people you're interacting with are not citizens—meaningthey're notthe people you're accountable to in ademocratic structure—that doesreplicate to a certainextentthe situation the 

### military faces," he said. '^Nonetheless, they are law enforcement. And whatthat means isyou use the minimal force needed to do yourjob."


### Police forces are alsomore transparentand receptive tocriticismfrom the communitiesthey serve than armies. The community theBorder Patrol operates within may be anunusual one, inthatit 

### straddles aninternational boundary, but it isacommunity 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 ofwarhas, perhaps unintentionally, helped give the CBP acertain 

### measure ofinsulation from that community. Extracting information from the agency about ashooting isnotoriously difficult, especially when compared with atypical urban police department. If an 

### officerkills someone in Dallas, for example, the name ofthe officer involved istypically released the same day, and residents ofDallas can expecttosee astatementdescribing whathappened from the chiefofpolice inthe paper oronthe evening news. Internal investigations follow astandard operating procedure thatisreasonably transparent. The result isthatwhile community members may notalways agree with decisions made aboutthelegitimacy ofpolice shootings, theprocess atleast offers some reassurance thatofficers are accountable to thecommunity theyserve.


### The Border Patrol, by contrast, almost neverreleases thenames ofagents involved inshootings or the resultsofinternal investigations. Typically, suchdetails 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 shootings is very hard for the media to acquire as well. In its investigation, theArizona 

### Republic noted thatittooknearly a year fortheagency to release theuse-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 arock athim from a hundred feet away?" 

### Hilliard's wrongful-death suit onbehalfOfHernandez was dismissedby an El PasOjudge inAugust 2011 on the groundsthat the victim was not killed in the United States and therefore not entitledto 

### reliefunderthe U.S. Constitution. "IfIunderstandthatcorrectly, itmeans any agent can do anything hewants toanybody aslong asthe victim isinMexico and the agent is onU.S. soil," Hilliard said. 

### "Does that sound rightto you?" Hilliard has appealed the ruling. His suit on behalfofArevalo has yet
to be filed.


### Whethercriminal charges will be brought againstArevalo's shooter isstill an open question. For 

### federal prosecutors, when itcomes to filing charges againstBorder Patrol agents, there is more to considerthanjustthe 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 suchprosecutions inevitably become entangled inthe seemingly endless debate over immigration reform. Considerthe 

### notorious case ofBorderPatrol agents Ignacio Ramos and Jos<§ Compean, who were tried and 

### convicted in 2006 for shooting afleeing, unarmed smuggler. The smuggler survived and escapedto Mexico, where his account oftheshooting led tothe agents' eventual prosecution. Investigators discovered thatthe agents, knowing they had committed acrime, covered up the episode by destroying evidence and lying aboutthe incident. Nevertheless, the reaction totheir sentencing, especially onconservative talkradio, was sovehementthatthen-president George W. Bush was persuaded tocommute their sentences as oneof hislastacts in office, Howcould we begoing after 

### agents, itwas argued, when officials inWashington haddone solittle to stemtheflow ofillegal immigrants and narcotics?


### It didhothelp, Of course, thattheVictim inthatcasewas a smuggler, a factthat is notlostonfederal 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 keptprivate—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 databaseof 

### offenders. Still, Hilliard said he is notoptimistic about acriminal prosecution. Border security is still

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atop issue, especially forRepublicanprimary voters, whichmeans itremains apolitical football. He 

## thinks U.S. attorneys learned alessonfromthe Ramos and COmpeanprosecution. "It'sjustnotworth the hailstorm that will follow," he said. 

## To date, neitherthe Housenorthe Senate Homeland Security committees have scheduledhearings on CBP's use-of-force policies, though incoming CBP commissioner Gil Kerlikowske, aformer Seattle 

## police chief, was asked aboutthe issue athis confirmationhearing inJanuary. Hepromisedmore openness ifconfirmed, noting thathe had never worked for apolice departmentthat did notmake its 

### use-of-force policiespublic. O'Rourke, the El Paso congressman, has teamedup with aconservative 

## NewMexico Republicannamed Steve Pearce on aproposal to create anewborderoversight commission, tobring some transparency tothe agency's activities. The bill would also create anew 

## ombudsmanwithinthe Departmentof Homeland Security, to bring an independent setof eyes to bear on allegations of wrongdoing, notunlike the approach used by the U.S. military to address the recent 

## sexual abuse scandals. O'Rourke has found someteapart}' members to be surprisingly receptiveto his reform message. "They don't like the ideaof the border as akindof Constitution-free zone, where civil liberties and constitutional protections don't apply," he said.

Nora LamGallegos lives in aneighborhood on thenorthern outskirts ofNuevo Laredo called Lomas del Rio, oneof theneatly gridded developments ofmodest concrete andcinder-block homes that 

### have sprung up inthe twenty years since the passage of NAFTA made this city aboomtown. On the February morning Ivisited, itwas bitterly cold and overcast, and nobody was out onthe street. I 

### recognized the cheerful green exteriorofLam's house from earlierreports on Mexican TV news, though ithad lostmuch ofits charm inthe intervening months. Lam told me she hadbeen able to 

### find Only sporadic employment since herhusband's death, including somepart-timehouseeleamng. It
wasnotenough toreplace herhusband's income. The girls were not athome, butthehallmarks of 

### female adolescence were hardto miss. On ashelfinthe living room was ahomemade Mother's Day card, alongwith some Hello Kitty wonderama. Herdaughters hadn'tbeenthe same since seeing thenfather killed, she said. "They were neverrebellious before," she told me in Spanish, "butnow they don'twanttolisten." The Tamaulipas state governmentpaid for the kids tosee apsychologist, which 

### was helping, she said. The park where her husband was shot—part ofalarger complex that includes a 

### zoo, askate park, and aswimmingpool—had long been one oftheir favorite places to visit. "They
arealways asking me to go back,"she said, tearing up. "I takethem, but notdown to theriver. I can't doit." 

### Lam, who is28, would have celebratedher eleventh anniversary with Arevalo this year. They met at the wedding ofafriend, and he made her laugh. He was aconstantpresence inthe neighborhood, she said, playing soccerwith the local kids orchatting atthe fence with the neighbors. Butmostly he 

### lived for his daughters. Afterhis death, Arevalo's friends paidto have acorrido written abouthim,
W http://www.texasmonth!y.com/story/who-will--watch^watchers?fulloaee=1 11 /0/901A

## Who Will WatchtheWatchers? |Texas Monthly Page n of14

andthe accompanying YouTube video is filled with stillphotos ofArevalo withPriscillaand 

## Mariana, the girls mugging forthe camerawith atreatinonehand and an arm aroundtheirdad, who sports agoatee and aseemingly endless Variety of majorleague baseball caps. Many of them were taken atElPatihadero, not far from the spot On the bankwhere he died. 

## Lam was interviewedby American officials in Laredotwo days afterthe shooting, but she has not 

## heardfrom anyone aboutthe investigation in alongtime. Onthe morning Ivisitedher, theLaredo Morning Times carried astory aboutthe sentencing ofaMexican gunman forthe murder of Border 

## PatrolagentBrianTerry. Terry's killer, apparently abanditwhopreyedonbackcountry drug 

## couriers, gotathirty-yearsentence. Ishowedthe clippingto Lam. "TheymadethatMexicanpay for 

## whathedid," she said. "Andifmy husbandhadbeenthe shooter, insteadoftheonewho gotshot, you can be sure the Mexican governmentwouldhave givenhimto the Americans, andhe would have beenpunished." But it didn'thappen thatway. To this day, she still doesn't evenknow the 

### name of herhusband's assailant. "How come he is free and enjoying life," she asked, "whenthere is no happiness in mine?" 

## AfterIvisitedLam, Iwentto theparkwhere herhusband died. The shockingimages I'd seen inthe video were hard tosquare with the scene itself. I stood inthe parking lot ofthe zoo on the hill above 

### the park and looked down atthe acre of trees, theirtrunks paintedwhite to ward offbugs, andthe riverbeyond. Aquartermile up the opposite bank, in Laredo, sat anice new H-E-B, its cobalt-blue

## framed entrances beckoning cheerfully, itsparking lot about aquarterfull. Betweentheblacktop surrounding the store and the river belowwas amaze ofbare-earthpaths trickling down through mesquite and thick brush, beckoning the mochileros andpateros totake their chances, Awhite 

### BorderPatrol SUVWas parked atastrategic pointhalfway down the bank, looking overthe river and 

### theparkonthe far side. It's afavorite lookoutpoint; if you study the satellite image of theparkright now on Google Maps, you'll see the same SUV, oronejustlike it. It's ahell ofaplace to get shot in the chest with an automatic weapon, between an H-E-B and a zoo.



### I drove down to theriver, where I wasjoined byJosue Ledezma, a close friend of Arevalo'swho was 

### atthe barbecue the day of the shooting. Ledezmais also abricklayerby trade, thoughhe 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 aboy. Inthe video, he isone ofthe young menwho canbe seennearArevalo as he leans against thewhite Buick, in the calm before the

storm. 

### Like everyone else inthe city, Ledezma seemedto have been caught off guard by the freakishly cold weather. He was wearing pajamabottoms and along-sleeved T-shirt, shivering as he walked me 

### through the scene ofthe shooting. With his hands tucked snugly underhis armpits, he showed me

http://www.texasmonthly.com/story/who^wilUwatch^watchers?fi!l1r>aae=1 11/o/om aWho Will Watch the Watchers? | TexasMonthlv J' Page 13 of 14 

# wherehewasstandingwhenhisfriendwasshotandhowthebulletskickedupthegravelallaround h«feetItwas a miracle,he said,thatonlyonepersonhadbeenshotHehaddivedintothebrush 

# whentheshotswerefired, andwhenhecameOut,hesawAreValolyingOntheground Itwas 

# LedezmawhodroveArevalotothehospitalinhisdyingfriend's ownBuick, alongwithhiswifeand daughters. 

# LedezmasaidhehadbeencontactedasrecentlyaslastfallabouttheshootingbyAmerican investigatorsandhadtold his story onceagain. Aftersomuchtimehadpassed, however hewasn't 

# optimisticthatjusticewouldbecomingforhis oldfriend. OnthebanknotfarfromwhereArevalo 

# died,thereisa largesquareofconcrete,theremnantofanoldbridgeorpipelinefoundation,partially submergedintheriver. Inthedays afterhisdeath,Arevalo'swifehadspray.painteda simple memorialthereforherhusband. Ithadread "Descansaenpaz, ElMemo" Ledezmalookedforit but 

# hecouldn'tfindit. Itwasdefinitelythe samespot, butthewordsweren'tthereanymore. "Sedesvanecieron," he finally said. "They faded away."

ij\j 

## Tags: POLITICS, BORDERPATROL, BORDERVIOLENCE, ROCKTHROWINGS, GUILLERMOAReVA PKDRAZA, CUSTOMSAND BORDER PROTECTION, LAREDO, NUEVO LAREDO

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## RECEIVED:-. )Q

APPEAL:



# - 't^wSSIJto <?oS2r^?^°f^.^^P^dence/contraband, he/shemustnotifytheUnitMailroom ^ tothe Director's ReviewCommittee pT^S^ T"dfSire ?appea*'submitb*mail ^ (2) WEEKSofthenotificationdatelistedabove MUntSV'"e'T* 77342-0099. TheappealmustreachtheDRC WITHINTWO [£ 

# Doesoffenderwishtoappealthedecision^esDNoDNon.Appeatable fg,jr ) J<LM,2*. ,**;J%

' ' "Offender Signature' * "> "' * Date -^ 

# DISPOSITION: Offendermustcheckthedesireddispositionatthetimethedenialispresented. '" * '^

Q Destroy .^ 

## D Sendto the following person atthe offender's expense: ^.,t, /_.*.,_ /,, .„ „ •. ^ , v

»JL, -/ i / Name andAddress""' ^ ~~" /:...• - . *':.

_____ •:>..
... .-••" •' , V ( />' " yi/ Offender Signature &Dale '" -1- " _. ..' —-—-= y— • 7 MailroomRepresentative Signature & Oate * g, UNIT DISPOSITION; a,e • Employee's Signature

DISTRIBUTION: 

# Golfa,-UnrtC%rDRC,F^ Yellow

- Offender Copy ., ; 

### Pink

- Mail to sender/addressee ofcorrespondence M53 (Rev. 3/12) "

- .

••-** *^^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 f1846003 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 ofCriminal 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 ofCriminal 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] DateReceived: / r /W-/^/ DateDue: I(7^'M^" JH Grievance Code: •~^CJ I Investigator ID #: Extension Date: ^-P)U~M 

# ~w? jp64 2Ptt Date Retd to Offendi
You musttry toresolve yourproblem with a staffmember before you submitaformal 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. 

## Whatwastheirresponse? .IWMATS.S ^MDIfciG CRIMNAL-^^^^^tticill^ , - — ~^— Whataction wastaken? Unknown

- appeal of contraband decision; pending Stateyourgrievance 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 ___—impossible ' by this imprior legal documents confiscat 2/2014 which has been ion 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 OFFICEUSEONLY Grievance#:^2___^2_^L


# 3 Texas Department ofCriminal Justice 

# STEP 2 OFFENDER GRIEVANCE FORM 

### OffenderName: Paul James Koumjian TDCJ# 1039181 

### Unit: ..^...... HousingAssignment: 3 c 25 B Unit where incident occurred: m UGI Reed Date HQ ReedDate:
Date Due:
Grievance Code: Investigator ID#:

Extension Date:
You must attach the completed Step 1 Grievance that has been signed by the Wardenforyour Step 2appeal to be accepted. You may not appeal toStep 2 with aStep 1 that has been returned unprocessed. Give_reasonforappeal (Be Specific). / am dissatisfiedwith 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 coKEiscat

### ed 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 

### 3 

## at least*196.00 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 UREI YOUR SIGNAT IS 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 **- 

# ___r~^E^23*S5 Martin 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? 

# ^_^2_,_sss

_z»£^°~z££ shall inspection for contraband be deemed 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 determinejone inmate was getting mailed anothef iSte'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 

## ofTDCJ. Rules orRegulations" 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 °fTleS' 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' -2- *C-3

# protecf tne Courtof CrtT f\ *"? *" ^-""dinary motion necessary to 

# chf lughes 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 ofDecember 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 of tii 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 af Sfit 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 

# « IffSS^E*!? W3 T13^- *• COU^ °f -PPeal^isiriS an affir®aw«_ on May 21,2014, rehearing denied on July 24,2014, en banc con 

## sideration overruled on September 4th,2014. "*>*ha, en banc con-

-3- [{>-*>PRAYER 

# £ aS"S?iP?ss?=-r___^«skS i-ecer 3ames martin s legal documents to Paul James Koumjian 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^NOTICEj:ROM COURTOF CR[MINALAPPEALS OFTI-'V *.« TM-E COPY :afitoi, sta:mois, Austin. -;exas 78711'

12/1802014 

## MARTIN PETERJJ flES Tr, Ot. No. 12,I)3.02604..CR rU.W5U 14 

# Ch this ctay,.*.* Court has derued the Appellant's Pro Se -Motion To Oref1 Si To Return Confiscate.:! Documents to App.-i»flan;t:" Ab«IAcoshs: Clerk PETER JAMES MARTIN MICHAEL UNIT

- TDC# 1846003 2&:4 FM 2051. TENNESSEE COLONY, "X 75886 PD-i[|'5C-14OFFICIALNOTICEFROM COURT OF CRIMINALAPPEALS 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.- NoCl2-03-02604-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 75886OFFICIALNOTICE FROMCOURT OFCRIMINAL APPEALS OFTEXAS FILECOPY P.O. BOX 12308, CAPITOL STATION. AUSTIN. TEXAS 78711


# i*fES^!L,TM U'. V

- r COA CaseWo.0*t3-0(W80.CR B«AlfnNrPETERJAMES Tr.Ct.Not1243-026G4-CR -PB=tfi5frt* On this day, this Court hasgranted 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 mustbefiledwith The CourtofCriminatAppeals: Abel Acosta, Cleric 9TH COURT OF APPEALS CLERK OAROL ANNE HAREEY tOOf PEARL SUITE 330 BEAUMONT, TX 77701 * DELIVERED VI AE-MAIt*

\3OFFICIALNOTICEFROM COURT OFCRIMINAL APPEALS OFTEXAS 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



## WOFFICIALNOTICE 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 MARTJNrPETERJAMES 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-