wILijlJS LEE OCKLETREE,

#1906981

ALLxiE^ UNIT/TDCJ-CID

2101 P. Mo 369 Na

IOWA PARK, TEXAS 763^7

JULY 13, 2015

HONORABLE JUSTICES PRESSING,

In The COURT OP APPEALS por The

THIRJ SUPREME JUDICIAL DISTRICT

OP TEXAS At Austin

attnt Jeffrey Do Kyles^ Glerfc

Po 0. BOX 12547

AUSTIN., TE^CAS 78711

*£C£/ved

ML 24 2015

In Ret Appeal Cto No* 03-14-00046-CR

WZLLIE LEE OCKLETRKE -y- THE STATE OP TEXAS

CTPELLANT*S COJflaXNJaLj LETTER MM ELEAji^V

TO Wl'l't—APPELLANTS MOTION TO SUSPENj iD'!£ES:

APPELLANT'S BRiEP ON APPEAL:—Mu MUT10N~"HHl

Ml m\l> ALL AVAiLAbLE HMEIfr, BELIEF, BBkjffl&g

ANJ REMONSTRANCE AUTHOBlflRj Bft (MlS fiONOft&BIJE

UDURT OP APPEALS JURISDICTION AND AUTHORITY

AS AUTHOi-UaED ill AdflOHiJ&Mai WiTH THE UNi'i'E^

STAi'ES CONSTITUTION adj ThE STaVE OP TE.JiS—

CONSTiTUTiON AN J ThEiR CiON]rt)ifiliJN(l LAWS...—

Dear Honorable Justices Presiding in the Court Of Appeals for the

Third Supreme Judicial District Of Tgxas at Austin:

GOMES NOW, WILLIE LEE OCKLETREEf #1906981, an Offender, who

is confined in Texas Department of CRiminal Justice- Correctional

institutional Division (TDCJ-CjO») , who is the Appellant in the above

styled and numbered cause, who does make and file this APPELL^T*S

COMBINED LETTER PORM PLEAjINGS, TO WlTt APPELLANTS MOTION TO SitePEN^. RULES* APPELLANTS BRIEP ON APPEAL; AN_j MOTION POR MY Mj ALL

AVAILABLE REMEDY, RELIEP, REPRESS, AN^> REMONSTRAN ,E AUTHORISED BY THIS

HONORABLE COURT OP APPEAL'S JURISDICTION ANU AUTHORITY AS AUTHOR!^

IN ACCORjANGB WITH THE UNITED STATES CONSTITUTION Mu THE STATE OP

TEXAS CONSTITUTION Mj THEIR OONPORBfl. NQ LAWS and which is declared,

stated, verified, acknowledged, confirmed, and pled under the penalty

of perjury of the LAWS of the UNITED STATES and THE STATE OP TEXAS

to be true and correct in accordance with and pursuant to the pro-
visions of 28 Uo s<» Co sec» 1746 and the Texas Civil Practice and

Remedies Code, Sections 132a001-132o003 for which my signature and

the date of its execution does confirm the foregoing and pled con

tents of this pleading to be true and correct as fallows*

I.

JURISDICTION.

The Appellant maintains and avers this Honorable Court Of Ap

peals has jurisdiction and authority in accordance with and pursuant

to The Texas Constitution,, Article V» Section 6 and the relevant

applicable provisions of the Texas government Code governoring the

Court Of Appeals for the Third Supreme Judicial District Of Texas

at Austin. Por the Appellant*s timely and proper NOTj.CE OP APPEAL

purports ta give this Honorable Court Of Appeals jurisdiction and

authority in this matter.

However, the Appellant would ask that this Honorable Court

Of Appeal, to: take judicial notice of the Reporters Record Vol* 13,

Page 41 at line 10, the Appellant in his f*pro sew capacity did orally

move the court for a new trial by and through entry an page 41 Lines

10 through 25 as continued on Page 42 Lines 1 through 16o Por in

the instant case this Honorable COURT OP APPEALS must determine if

this cause is properly before the Honorable Court Of Appeals where

the trial court and appointed court apointed attorney did not c-on—

fer with the dismissed trial attorney and/or the Appellant to make

known if in fact; sufficent error of a constitutional dimension and

magnitude existed to hold hearing and preserve error for appeal.1

As the record is devoid of any ruling r-nd determination made by the

trial court on the Appellant's oral motion for new tr:.al and no

hearing was ever held and conducted©

Still further, where the Appellant is proceeding '"Pro Se"> after

the court appointed attorney on appeal did make an_i file his brief

in accordance and pursuant to the ruling and opinion of the United

Spates Supreme Court in the case of Anders —v- California» 386

He. S. 738» 87 S, Ct» 1396 (1967) ausing the Appellant to invoke

this Honorable Court Of Appeals jurisdiction and authority pursu

ant and in accordance with thr ruling and opinion of the United

States Supreme Court in the case of Haines -v- Kerner. 4u4 U.S. 51Q

-2-
(1972)» For the APPELLANT declares and pleads that he is proceeding

without the adv.se and/or the assistance of one who has been formal

ly trained in the "art" and "science" of the field of law*

IX«

APPELLANT'S MOTION POR THE SUSPENSION OP THE RULES

COMES NOW, the Appellant, who does move this Honorable Court

of Appeals to Suspend he Rules in accordance with and pursuant to

to Texas Rules of Appellate Procedure, Rule 2 which expressly and

impli itedly authorise this Honorable Court of Appeals to suspend

the rules as stated in Rale 2 that reads as follows*

*»»»0n a party's motion or on its own initiative an appel

late court may—to expedite a decision or for other good

cause—suspend a rule's operation In a particular case and order

a different procedure;? but ftfeao a court must not construe this

rule to suspend any provis on in the Code of Criminal Procedure

or to alter the t me for perfecting an appeal in a civil case*.*.*

Por the Appellant does move aba seek to have the relevant and applic

able ruleb .;-;ovemori.^ \ -".O.- •:c:..' oi pleadings,, form of briefs, and the

form of motions; as relevant to the requirements for all when being

made, filed and pled before this Honorable OURT OP APPEALS as being

hereinafter PRAYED foro,

WHEREPORE, PREMISES CONSlJEREJ, the Appellant PRAYS that this

HONORABLE Court of Appeals does suspend any and all rules to allow

this "Pro Se" Appellant to proceed in the instant cause byand through

this APPELLANT*S COMBINED LETT _R FORM PLEADING-«.

AN.U FURTHER, the Appellant Prays that this Honorable Jourt of

Appeals be granted any and all other remedy, redress, relief, and

remaastrance as authorized by law and equity*

III*

APPELLANT'S BRlEF ON APPEAL

A*

IJENTITT OF THE PARTIES

APPELLANT!

1ILLIE LEE OCKLBTREE

TBCJ_CH) #1906981

ALLRED UNIT

2101 Fo Mo 369 No

IOWA PARK, TEXAS' 76367

TRIAL COUNSEL FOR APPELLANT*

MR* JEFFREY Be PARKER

312 Eo CENTRAL AVE.

-3-
P. QDo BOA 660

HELTON, TEXAS 76513

APPELLATE COUNSEL FOR APPELLANT*

Gary E« Pieast

LAV/ OFFICE OP GARY PRUST

1607 Nueces S'to

Austin, TE^S 76513

TRIAL COUNSEL FOR APPELLEE*

SHELLY BAM STRMPLE

STEPHANIE NEWELL

1201 HUET HE>.

P. Oo BOX 540

BELTON, TE7AS 76513

APPELLATE COUNSEL FOR APPELLEE*

Bo"b Odom

1201 Huey Rd«

Po 0, Box 540

BELTON, TEj&S 76513

STATEMENT REGARJING ORAL ARGUMENT

The Appellant, a "Pro. .^e" Litigant, who is currently confined

in Texas Department of Criminal Justice- Correctional Institutional

Diyision. at the Allred Unit, 2101 F. M« 369! N*,, Iowa fark, Texas

76367o For all current and existing law does not mandate and/or

require this Honorable Court of Appeals to issue 'any writ to bring

the Appellant before the Court for arguement,'

V*

STATEMENT OP THE CASE

Appellant was Indicted in two gaunt indictment alleging the.

offenses of injury to a disabled person and aggravated assault wmh

a deadly weapon with an enhan ement paragraph invoking Texas Penal

Code, Section 12o42(d) allowing for punishment raEDge of twenty-five

years to ninety-nine years or life imprisonment, if the allegations

are found to be true upon a conviction of the primary offensea.^o

For the Appellant chose a trial by jury and made and entered his

plea of "not guilty" to the allegation of aggravated assault after

the State chose to abandon the injury to a disabled person* As the

Appellant was found guilty of the primary offense and prior convic

tions having been found to be true by the Jury who imposed punishment

at seventy-five years confinement* A verbal Motion. For New Trial

was made and entered in open court (RR.Pages 41, Line 10 through d5i 42, Lines 1 through 1.6, Volume 13) o Por the record is absent

-4-
of any ruling and/or hearing on the Appellant's verbal Motion For

New Trialo As the Notice Of Appeal was made an^ filea by the Ap

pellant's court appointed attorney who took no action on the Ap

pellant's verbal MOT,.ON POR NEW TRIAL*

VTo

STATEMENT OF PROCEDURAL HISTORX

The Appellant maintains thath&he rocord shows that an indict

ment was returnea by the Grand Jury of Bell County for the 426th

Judicial District Court on or about May 22, 2013 alleg ng two(2)

counts, to witj Injury To a Disabled Person and Aggravated Assault

w th a Deadly Weapon with allegations of prbr convictions being made

to invoke punishment pursuant to Texas Penal Code, Section 12»42(d)«

It is further shown within the records that the Appellant was

init ally represented by Attorney Randall Scott Magee, who appeared

in open court on or about July 26th, 2013 to establish in the record

tha# J strict Attorney Shelly Dawn Str mple had made and advanced a

ten (10) year plea bargain offer and which the Appellant had prior

to his appearence in open court refused and further refused in the

course of the Plea Offer Hearing* Which a subsequent hear ng and ap

pearen-e by Attorney Magee was maae on or about August 19, 2013 when he

appeared and pled Motion Por PR Bond that resultea in adverse ruling*

As Attorney Randall Scott Magee appearea in open court one more time

in the instant cause to advance a MOTION TO WITH ^RkW AS COUSEL that

was docketed and heard an September 24, 2013 when the Appellant did

then proceed in the case as his own attorney (Pro Se) with standby

appointed cousel, namely; Attorney Jefferey David Parker*

The Appellant acting as his own attorney with stanaby counsel,

namely; Attorney Jeffrey David Parker did participate in hearing

held on October 15, 2013 for hearing of Pretrial Motions which the

Appellant had filed* Por the result of this he; r'.ng cause the Hon

orable Fancy H, Jezek, Judge Presiding in the 426th Judicial Dist

rict Court to appoint standby attorney to proceed as the Appellant's

trial attorney; who would proceed as defense attorney in the trial

on merits and all other Pretrial Proceedings helu subsequent to the

$&§ October 15, 2013 proceedings* As the January 3, 2014 Pretrial

Motion Proceedings Attorney Jeffrey David Parker placed into record

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that the Bell County District Attorney had advanced a pleabargain

offer prev ously dur ng July z2f 2013 heaEing that the Appellant had

then and would dur ng the pretrial hearing reject* And further, the

hearing would show and document the Appellant's dissatisfaction with

his attorney's representation*

The Appellant's trial proceedings began on January 6,. 2014 and

Attorney Jeffrey David Parker appeared as the Appellant's attorney

of record where he waived opening statements ana refused and failed

to embrace the "voir dire examination" with active participation of

zealous manner* For this is of relevance and import where the victim

as alleged in the indictment was of the White Race an_. the aecuaed/ap

pellait was of the BlaGk Race* As the lack of active participation

compromised preservation of error relevant to the unauthorised, uniawul, and unconstitutuional use of the capacity of employment and

its authority as an Ass:stant District Attorney, namely; Honorable

SHELLY STRIMPLE, who engage, in a systematic ustom an. practice of

ex luding eligible jurrors from the panel*

With the jwyyhaving been selected for the Appellant's tr al and

hav ng been sworn n the Appellant's trial began an.. Count One of the

indictment was abandonees an jproceeded to trial on Count Two that al

leged aggravated assault with a deadly weapon where the State aavanced

open ng arguement and Appellant's counsel reserved the right to advan e arguement prior to the Defense presenting evidence after the

rest ng of the State* For the State proceeding w'.th presenting its

ase by and through witness test mony and exhib ts be ng offered ana

entered into evidence purporting to support the prmof of the allegat

ions set forth in the indictment* And after the State re:ted there

was a haaring held on recora in absence of the judge regarding the

Appellant having been adviseu not to test fy as the advee of his

Attorney Jeffrey David Parker was not to testify as he, Attorney Park

er stated, n..*Well, if there'? —if there's any doubt, I'll tell you

right now, unequivocally, c^early without any question, I am telling

you that it is my professional advice you not testify in this caseo..o"'

For Attorney Parker did not make or give any statement or arguement

and the Appellant on record waived his right to testify believing the

advice of h'.s attorney that the evidence was insufficent to find guilt

beyond a reasonable doubt*

The S-fcate and Defense both having rest ea the jury was removeo

—6— a?
and in recess as the State ant. the Defense wijfch the Court prepared

the eharge on "guilt or innocence*

The preparation of the charge was completed where the Court

ordered he return of the jury and each jurror was given a copy to

follow along as the charge of the court was administered to the

jury* Por the Defense was allowed to present its closing arguement

of which Attorney Jeffrey David Parker avered that there was evidence

that the Appellant had admitted possesihg a knife an:: having thrown

it away* Which the Appellant's attorney failed to .nform the jury

that the Appellant had remained in custody from March 12, 2013 to

the very point ana time making any avertment as having been pur

portedly made to support the elements of the indictment could not

ana should not be substantiated when his restraint would not allow

for hjm to throw away a knife* As the itate did make and give its

losing arguement of which upon completion the jury went to the jury

room for deliberation* The ^e^j"^eration of the jury resulted in the

"^im ell ant being found guilty as charged in the indictment*

Because the AvT)ellant had chosen the jury to impose sentence,

the jury was read the enhancement as set forth in the S^^g's No

tice of Sn^^ncg^gflt setting forth allegations of the Appellant hav

ing been previously convicted to impose punishment pursuant to the

T^^s- Penal Code, Se tion 12*42(d)* The Appellant maae and entered

his plea of "not true" and the Stete proceeded with presenting evidence

to prove the prj©r convictions. Por he Appellant took the stand ana was

questioned by the State and Defense, as to informaion relevant to the

Ap --si i' .0-;» r past* The chrrpe o.-~ nrrirh. '•:.^J' - r. •'•::-<::. o .• - v,i\ -r:ae

r' rea to the jury who retired an returnee w-th a finding of the

Appellant hav ng been previously convicted and a punishment of seventyfive (75) years was imposed*, as a result of proceedings having been

held in open Court on January 7th and 8th, 2014*

VI*

GROUII-jS FOR REVIEW

WITH ARGUMENTS'

1* GROUND POR REVIE; NUMBER ONE WiTH ARGUEMENT

APPELLANT CONTENDS Ml, COMPLAINS THAT HIS R GHT TO REASONABLY

EFFECTIVE ASSISTANCE OP COUNSEL ON THE FIRST APPEAL HAS BEEN jMIEj

-lN VIOLATION OF RIGHT - UNDER U* S. CONSTITUTION, SdCZTH AMENDMENT.

-7-
ARGUMENT AN J AUTHORITIES

The Appellant contends and complains that he was not afforded

the minimum of reasonable effective assistance of counsel during a

critical stage of Sfche criminal process and procedure, to witj on

the first appeal* For it is a matter of the record that Attorney

GARY B* Prust » as appointed by the court for purpose of making

and filing of a written Motion For New Trial and seeing that the

same was docketed for hearing pr or to hav.ng ma e and filed Notice

Of Appeal whereas the Appellant had made an oral Motion For New Trial

which the trial court did not otherwise make: any ruling thereon* As

the rulings and decisions of the United States Supreme Court in the

case of Strickland -v- WASHINGTON, 466 U*S* 668 (1984) and those

of its genre. As the mere fact that the court appointed attorney

did make and f'le an appeal brief purportedly in accordance with and

pursuant to ANjERS -v- CALIFORNIA, 386 U«S. 738 (1967)*

Aceordingly^ if the appointed counsel had adhered and conformed

to the fundamentals of h: s s hooling and tra n ng he would have in

vestigated and made Trnown to himself that the trial counsel was of

opinion and belief that the eviden e as proffered and entered into

the trial records failed to subsfeniate an., support a finding of

"•guilty as charged in the ixiGict.^nt*:: ih.ich in spite of this beI'.ef and op\on as set forth in the trial records- at VOLUME 3L0, PAGE

57 through £9 as relevant to Attorney Parker ma-ing this a part of

the records* Yet, he Attorney Parser did not make a formal motion

to the Court for a directed verdict of acquital explaining his po

sition and preserving error thereon*

Still further, where the re ord at Volume 13, Page 41 ana Page

42, the Appellant makes and enters into the record an Oral Motion Por

New Trial which under the ircumstances where the Court allowed for

the trial attorney to be allowed to withdraw. And because the Ap

pellant for 1he Brief moment did not and does not have an attorney

and hi s oral motion was even acknowledged y the Court the refusal ana

failure of the appo nted attorney t> make and f'le a Motion Por New

trial where substantaial error had occured during the punishment

part of the trial where the records and documents used for purpose

of enhancement would not ana does not show the Appellant to have

-8-
twice convicted in accordance and pursuant to Texas penal -Jode,

Section 12*42(d)* Por if the State's Attorney snd/or the Appellants

trial counsel had investigated they would have found that the Appel

lant's 1991 purported onvi ton was in fact voidable and unavailable

for use a? an enhancement where is was void ab jf0$&*ri>i$p-^ "^e st

ate's proof of the Appellant's enhan ements is both actually ana fa tually insufficent* Yet, from the outset vhea the Appellant made an

attempt to bring to the at tent on of ihe Court by and through an inartfully pled Motion To Quash that neither the State's Attorney and/or

the Oourt timely addressee! the error where any corre tion of the

faulty prior allegat ons should haze been made timely and properly

before trial* For this would have removed the element of surprise

on part of Ihe Appellant's trial ounsel who did not and does not

know the prior convictions are in fa t all three are voidable and

were allowed to be used w thout any object.on on his part* the trial

attorney*

In 'Onclusion, the Appellant mainta ns and avers that he was not

and has not been afforded the minimum of reasonably effective assist

ance of counsel, on appeal when the appointed appeal attorney refused

and fa led to make a reasonable and dilligent investigation to see

if there was either a verbal and/or written Motion Por New Tr al that

was made nd entered into the record that had been timely and'properly

done within ten days of the entry of the judgement and sentence* Aa

this fa t and the failure of the appo nted appeal attorney to brief the

fa t that no rul ng had been made deny ng the Motion For New ffrial

the Anders Br ef as now before the Honorable Court of Appeals con

stitutes ineffe t ve assistance of ounsel. As the Honorable Court

Of Appeal does not have jurisdiction*

2Q.GR0UNJ POR REVIEW NUMBER TWO WITH ARGUEM^dT

APPELLANT CONTENDS AN j COMPLAINS THAT THE EVIDENCE AS UdE.J

AN, RELiED UPON THE SUPPORT IHE APPELLANT'S CONVICT ON FOR A©SE6G£&TEIi

AS cAULT W TH A dEAjLY WEAPON IS ACTUALLY 'NSUFFICENT DENY NG THE

APPELLANT IE:5 HI GHT TO A FAIR AM . IMPARTIAL TRIAL UII^ER THE U» S. CON

STITUTION, AMENDMENT SIXTH,

-9-
ARGUEMENT AMj AUTHORITIES

The Appellant ma ntains ana contends that the United States

Constitution, Sixth Amendment mandates that the evidence in the

review of actual insuffiency under the Unite. State.:, iupreme

Court's ruling aniff opinion in Jackson -v- Virginia, 443 UoS* 30?

(1979) requiring "no rational trier of fa-tcould /find/ proof of

guilt beyond reasonable doubt.,!, For in the instant case if not for

the direct and indirect bias for reason of race and gender, the evi

dence as heard and considered merely showed and represented that

an the early morning of March 12, 2013 a 911 telephone -all had

been made by someone at the address of a residence lo ated on Houston

Street, in "illeen, Texas* A? well as, having shown that Debbie Sweet

and: the appellant both were at the house*

v5till further, the trial on merit found in Volume 9 through 11

onstituted an accumalation of fa-ts proffered by the "ftate by and

through witnesses that had been ailed to purportedly show the commiss on of Aggravated Assault with a Deadly weapon as having been

alleged in the indictment. For the deadly weapon, to wit; a l.nife

as shown and exhibited? as well as, having been entered into evidence

were not shown to have been ever used and/or exhibite. by the Appellant

at any time on the morning of March 12, 2013o As the testimony of

the itate's witness in hief, the victim, namely; Debbie dweet in

forms that two knives were found ex xx..- x x Police* ^nu

neither of the two does Debbie tweet icent fy the Appellant as hav

ing possesed and used them at the time of the alleged threat and pur

ported deadly weapon possession and use to substant ate commission

of the offense* as she Debbie Sweet repeatedly gave testimony if true

that oantradic-ted the required and needed showing*

Even further, the utter inability of DEbbLe Sweet to be able to

identify whi h one of the two knives she turned over to the Police

was the actual -weapon raises question of doubt* For the inability

of the Police to find either of the two knives found oy the victim

Jebbie Sweet raises a serious question of fact as to was there a

nife or knives involved at all? As the shoddy Police work in hav

ing failed to have the victim examined by medical personel to remove

any doubt that the victim had in fact been subject to an assault thst

gave rise for the Appellant to be jailed on March 12, 2013* Which

-10-
further there is no one other than Jebbie dweet asseting that the

Appellant had made a threat by stnt'i^g uBitch Ifm going to kill youl*

As she, Debbie Sweet, further during the course of her testimony st

ated contradiction as to the Appellant's location and whereabouts

vdien the stated threat was made by the Appellant an.- of which Debbie

Sweet did not and could not give relevant factual account consist

ent with the initial staement made and given to Police Officer who

took the written statement ma-ing the same the basis of probable

cause for the Appellant's arrest*

In total and conclusion the entire purported supportative test

imony by all witnesses proffered by .the State gives- rise to no mare

than a small piece of eviden e that does not meet the requirements

of Jackson -v- Virginia* 443 U.S* 307 (1979) thereby denying the

Appellant his r ght to a fair and impartial trial as required by the

U* S^> Constitution, Sixth Amendment which requires that evidence be

sufficent. For the Appellant is entitled to reversal and entry of

accmital pursuant to the Burks -v- U*So, 437 UoS* 1 (1978)* '

3. GROUN-J POR REVIEW NUMBER THREE WITH ARGUEIuENT

APPELLANT CONTENDS AN,J COMPLAINS THAT THE EVIDEN ,E AS UdE^

ALT REL Ej UPON TO SUPPORT THE APPELLANT'S CONVICTiON FOR AGGRAVATE^

ASSAult W:TH A DEADLY WEAPON IS FACTUALLY INSUFPI ENT DENYING THE

APPELLANT TO HIS RIGHT TO A PA R W.j IMPARTIAL TR AL UNjR THE U, S* CON

STITUTION, SIXTH AMENDMENT,,

ARGUEiildT Ada AUTHORITIES

The Appellant without reiterating of subject matter of the

previous Ground Fogy Review, the Appellant does now advance and plead

his fa tual suffieney complaint relying on the ruling of the Texas

Court of Criminal Appeals which the Court's rul .ng and opinion in

0lewis -v- abate, 922 SW2d 126 (1996 Tx, Ct* Cr* App») Is relevant

and applicable in the instant ;ase where the factual suffienoy does

not warrant and support a find ng as returned by the jury where the

evidence does not connect the Appellant to the possession and. use of

a knife and/or ,rn ves proffered an.- entered into evidence by the 'rtate

as having been found and turned in to the Police by the victim and

State's hief witness whose factual account does not fully and ac

curately support the allegations ana findings made by the jury.

Accordingly, where jebb e Sweet's testimonial account repeatedly

-11-
contradicts r-jic fs 5I to xvx;ort and substantiate the allegations

made in the indictment* Por the Texas Court of Criminal Appeals has

ruled and determined that factual insuffiency violates the U* S* Con

stitution, Amendment Six* Clewis -v- State, 922 Sw2d 126 (1996 Tx*

Cto Cr. App«)

Because the trial on merits as found in Volumes 9, 10, and

11 does not fa tually support a finding of "Guilty as Charged in

the Indictment" the Appellant see 3 this Honorable aurt of Appeals

to reverse and acquit*

4* GRO'UNd POR REVIEW NUMBER FOUR WITH ARGUEMENuj

APPELLANT CONTENDS Adx COMPLAINS THAT THE ^TATE COMMITTED

PREJUDICIAL AND HARMFUL ERROR WHEN THE NOTICE FOR ENHANCE MENT

JjBj FAIL TO G VE THE APPELLANT NOTI E OF WHAT HE WAS TO DEFEND

DURING THE PUNISHMENT PHASE OF THE TRIAL*

ARGUEMENT AMD AUTHORITIES

The Appellant does contend and complain that the State's

NOTICE OF INTENT TO SEEK ENHANCEMENT PUNISHMENT does fail to give

the Appellant proper and t mely notioe* Por the entire Notice as

having been read by Stpte's Attorney Strimple was read into the re

cord and to the jury and Court* (See: Volume 12, Pages 6, Lines

21-25; Page 7, Lines 1-25; Page 8, L nes 1.-11) For the subject mat

ter and antent will tend to show the complaint as having been made

by the Appellant in his MOTION TO QUASH THE INDlGTiviENT was honored

by purportedly making needed correction to substance of the Enhance

ment Paragraphs that had aleged wrong information regarding purported

prior convictions* As the Noti e as read and given into, record to

the Jury ano. Cour alleges that the Appellant on trial for the Offense

of theft when in fact the Appellant had been tried and convicted of

Aggravated Assault with a deadly Weapon, to wit; a knife*

Because this allegation and reading by the State creates a fatal

variance tfiat subjects the Appellant to prejudice and harm when the

Court's Jury Charge On Punishment as having been read ano. given to the

jury shown in Volume 13, PAGE 5, LINES 22-25; Page 6, LINES 1-25;

Pages 7-13, LINES 1-25; Page 14, Lines 1-5 set fijrth the Charge which

does not track the reading of the State's Notice*
Accordingly, the Appellant is of belief that the State*s

Attorney has violated the Appellant's rights as defined by the

U« So Constitution, Amendment Pive expressly mandating that the

App ellat, a person, should not be held to answer fot? a apitol, or

otherwise Infamous crime, unless upon presentment or indictment of

a Grand Jury* Por the State* s Attorney having abandoned the allega

tion stated in the indictment and proceeded on the Notice that now

fails to; track the jury charge which the Appellant contends and

maintains that the rul ng and op n on of ihe United States Supreme

Court in the case of WOLPP -v- MoDONNELL, 418 U*s7 539 (1974) gives

forth relevant and applicable diction to support the Appellant's,

contention and complaint of violation of his rights by the acts,

a tions, omiasi ons, and atherwis e condu t of the St at e* s A11 orney*

The Appellant seeks that this Courbt; grant and order the Appel

lant's enhan emen to: be null, and void w thout any effect; with remandment for imposit on of new punishment within the range of what the

offe ns e mand at e s •

5* GROUND POR REVIEW NUMBER P2VU WITH ARGUEMENT

APPELLANT CONTENDS AND COMPLAINS THAT THE STATE'S ATTORNEY

PA LED TO PROPERLY PROVE THE APPELLANT'S PRIOR CONVICTIONS POR

PURPOSE OP ENHANCEMENT*

ARGUEMENT APT J AUTHORITIES

The Appellant contends and complains that the State*s Attorney

in the course of purporting to profgr evidence and proof of the

Appellant's pr or convict ons for purpose of enhancement the records

and documents as proffered and used does fail to affirmatively show

proper certification as required by Lan^ston -v— State, 776 Sw2d

586r 587 (Txo Cr* App* 1989) and Banks -v- State, 158 Sw3d 6@§, &$Z

(Tx* App—Eoiaston. /I4th$ist*/ 2005) 0

Po.r this reason the Appellant seeks the enhancement to be ruled

null and void andorder a reversal! and remand for purpose of sentening.

6* GROUND POR REVIEW NUMBER SIX W TH ARGUEEENT

APPELLANT CONTENTS' AN,, COMPLAINS THAT THE EVIDENCE ON PROOP OP

ENHANCEMENT IS INfSUPPICEKTT AS WHERE THE JUDGEMENTS M.j SENTENCESARE VOID*
ARGUEMENT AN i AuTHORITIES

The Appellant contends and complains that the eviden e used

and relied upon by the State's Attorey is legally insuffi ent to

support imposition of enhancement as allegd in the Notice* Por

the State's Attorney* s use of multiple means to otherwise show and

support the commission and conviction of prior convictions where

the jdgements and sent en es upon their face show and support the

judgements, sensnces,, and convictions to be null and void* As the

rul. ng of &fee Tpxas Court of Grim nal Appeals in the case of PLOWERS

-v- STATE, 220 S'w3d 919,. 921 (Tx. Cr* App* 2007) identifies numerous

ways to prove a prior conviction of which in this case a combination

of them all was used*

However, the Appellant is of the position where the priors are

void up on theeir face the proof must not be sustained* Por not even

the Appellant* s own testimony will support any enhancement when the

prior convictions are ' ontrary and in violation of the United States

Constitution* Sixth Amendment*

And for this reason the Appellant request reversal and remand

for resent en ing in ac ordance with the law*.

7c, GROUND POR REVIEW NUMBER SEVEN WITH ARGUEMENT

APPELLMT CONTENDS AND COMPLAIN J THAT HIS' TRIAL ATTORNEY

WAS INEFPECTXVE IN A CRITICAL PORTION OP THE APPELLANT* S CRIMINAL

TRIAL, TO WIT; VOIR DIRE*

ARGUEMENT MP AUTHQRITl'I!

The Appellant maintains and avers that he was not afforded the

minimum og reasonable effective assistance, of Qounsel by his trial

counsel who refused and.fa^ed to participate in an a0tive zealous

manner during voir dire* Por the Appellant, a Black Defendant, whose

victim was a White Pemale and this fact alone should have alerted

h mthat his participation would be required and needed to comply

with the mandae of he U, Sr. Supreme .Court in the case of Strickland

-v- Washington» 466 U*S*. 668 (1984)»

Because the Appellant's trial counsel dud refuse and fail to

partic pate in the voir dire exam nat on the Appellant wad prej'udi :-ed

when memers of iie jury whose prejudices and biaas for reason of race

and gender were not dis avered and effectively denied the Appellant

^14-
a fair and impartial trial*

Accordingly, the Appellant seeks to have his case reversed and

remanded for a ne trial where the trial counsel*s refusal to render

the m nimum of reasonable effective ass stanee of counsel inflicted

prejudice and harm in his trial attributing and c°n^r:Lbu-ting to the

Appellant*s judgement and conviction*

PRAYER

WHEREFORE,, PREMISES OP THIS LETTER PORM BBIEB HAVING COMB

REGULAR before this HONORABLE COURT OP APPEALS,, the Appellant

does PSAY that this COURT GRANT the Relief as sought and request

for each Ground Por Review as the Appellant may be entitled*

Ad further, the Appellant does PRAY that this Honorable Court

Of Appeals does grant and ORDER any a.nd all otherrelief that ihe

Court is authorised under both LAV/ and EQUITY*, as the Appellant does

hereinafter affix Ms s gnature here nafter on this date of July 13*

2015 declaring,; confirming,; verifying, and pleading under the penalty

of perjury this Brief s true and correct*

Respectfully submitted,

APPELLANT, PRO SE '

ALLRED UNIT/TDCJ-CIB

2101 P* Iff; 369 N*

Iowa Park, Tx 76367

MOTION POR MY AN.; ALL AVAILABLE JuJMluJg* WttfiTKff,

idSjJKEsS, aNd RMlQNaTRANjE AUTHuRi&El> Bff 'M,.S HoI'TORAbLE COURT OP JspPJftsLS* JURlSDICT ON AN..- AUHOR TY as AUTHOR

ISE^ IN gUJjuJtu&Ncjii WITH THis UIMjTEd b'MKs CONaiLTUTION

iJNjj.TiiE ZSJCAa CON^TrTUor"ON aNTTDBEIR CONPOiMflG LAwS—

AppeaMS Mfir^ie^lit^a M^F^ai! M?£Hi MSuyf relief, redress aniremonstrance to whi h this Appellant may be

entitled to under law and equity that-may e found in the records

of this cause*

YZHSHJKiJ'ORE, PREMISES CONSIDERED, Appellant prays for any and

all remedy, redress, relief, andremonstran e that may be authorized by

law and equity* Respectfully submitted*

APPELLANT/MOVANT, Pro Se

ALLRED UNIT/TdCJ-CID

2101 P„M. 369 N.

iov/a park;, tx 76367

-1.5-
CERT, PICATa OF biSRVlCE

I, WILLIE LEI OCKLETREE, #19069.81, the Appellant in the foregoingLETT JR iORM PLEADING who does declare, state, verify, certify,

confirm ana plead that 1 have aerved a true and correct copy of this

LETTER POM PLEA :. NG by placing the same in a postae prepaid envelope

ana depositing the same in Allreu Unit Mail Box to be subsequently

picked up by Allred Unit Mail Room Personel for lagging in the out

go ng legal mail and to be subsequently deposited n the U* S* Postal

Service for subsequent delivery as hereinafter set forth, to wits

MR* GARY S. P1EHST

LAW OPP"7" "E OP GARY E* PRUS'T

1607 NUiuCSS STREET

AUoT N, TEXiit 78701

MR* BOB Do OjOM,

AJSISTANT DISTRICT ATTORNEY

Po 0. BO^ 540

BELTON, TEXAS 76513

This be ng a true and correct service which I declare, -onfirm,

state, verify, certify, ana plead under the penalty of perjury of the

lpws of the United States ana The ^tate of Texas pursuant to the provis ons of 28 U* S. G. s6q0 1746 and Tx* Civ. Praco & Rem* Code, Sect on 132.001-132*003 by here nafter affix ng my s gnature on this

date of July 13, 2015 confirming th s to be a true ana correct act

of service*

-16-

WILLIE LEHl 0W±mxsMf #1906S ^•1906981

APPELLANT, PRO S'E

ALLRED UDIIT/TDCJ-Clii

2101 P.M. 369 Ho

IOWA PARK, TJC 76367
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